Lago Agrio: The Plaintiffs File Their Brief With The Second Circuit

Burt Neuborne
Riding in to save the day? Credit: New York Magazine/Elinor Carucci
Many trees were felled today as the Lago Agrio plaintiffs filed their brief in the Second Circuit, seeking to reverse Judge Kaplan’s judgment against them in the RICO case. The appendix alone ran to seventeen volumes. The Ecuadorans are represented on appeal by Burt Neuborne, the Inez Milholland Professor of Civil Liberties at NYU Law School and the founder of the Brennan Center for Justice. I expected to see Donziger’s brief, too, but I couldn’t find it on the docket by yesterday evening—I assume it will have been filed by the time you read this. The court also received motions for leave to file briefs on behalf of amici curiae, namely the Republic of Ecuador (represented by Eric Bloom of Winston & Strawn) and a group of international law professors (represented by Donald Anton of the Australian National University College of Law), though the court has not acted on those motions and those briefs are not yet available on the docket, as far as I can tell.

I like a lot of the Neuborne brief, no doubt because he obviously has read Letters Blogatory and cribbed some of my points. (It’s okay, Professor, happy to help!) The main point I want to note is Neuborne’s argument that Chevron, which touted the high quality of the Ecuadoran judiciary when it got the original litigation dismissed in New York on forum non conveniens grounds, should be estopped to claim now that the Ecuadoran judiciary is systematically inadequate, and that even if political conditions changed in Ecuador between the forum non conveniens dismissal and the entry of judgment, it was a change from a right-wing government that was, Chevron thought, sympathetic to a left-wing populist government that was not. Chevron, in essence, assumed the risk of this kind of political change. And of course judges in Ecuador reflect the political priorities of the politicians who appoint them, just as in the United States. There are problems with this view: Chevron’s stipulation in New York expressly preserved the right to raise grounds for non-recognition provided by the UFCMJRA, which include systematic inadequacy of the foreign judiciary; the judiciary was “overhauled” in an irregular way that is open to criticism of court-packing. Still, I think this is a strong argument given the unusual circumstances of the case and Chevron’s unambiguous assertions about the quality of Ecuadoran justice when the case was first being heard in New York.

Neuborne also makes very good points about the Ecuadoran judicial system, situating it in the civil law tradition with references to Germany and other states with unimpeachable judicial reputations. I have previously emphasized the limitations of the cassation appeal. Neuborne makes a similar argument but from the opposite direction: he emphasizes the de novo quality of a first instance appeal in the civil law system. One of the main themes of the brief is that the appellate decision in Ecuador was a de novo review of the facts and the law, and thus whatever problems took place in the trial court are irrelevant, particularly as there has been no allegation of actual political interference or any shenanigans in the appellate court. Again, a strong point.

Neuborne is a little weaker when he seeks to distance his clients from Donziger. Assuming that Donziger did in fact step over the line, I don’t see that it works to say that he but not his clients should pay the price. What’s at stake is whether the Ecuadoran judgment is enforceable. It seems to me that if I am a client and my lawyer, unbeknownst to me, obtains a judgment in my favor by fraud, the fact that I was ignorant of the fraud doesn’t mean that I can enforce the judgment. Like it or not, Donziger and his clients are joined at the hip. Neuborne is also weaker when he discusses the nitty-gritty of the supposed corruption in the trial court in Ecuador. Like Neuborne, I (from a distance) found Guerra’s testimony to be incredible and not sufficiently corroborated. But unlike me, and perhaps unlike Neuborne, Judge Kaplan, who heard the testimony in person, though Guerra was credible. The trouble the LAPs have now is that the standard of review on these kinds of credibility determinations is very high, with reason. In short, it’s not clear that Neuborne’s characterizations of Guerra as a crooked judge and liar will do the trick.

Vercingetorix surrenders to Caesar after the battle of Alesia
Vercingetorix surrenders to Caesar after the battle of Alesia. Credit: Musée Crozatier du Puy-en-Velay
Last, Neuborne makes solid jurisdictional arguments that start, strangely, with a nod to Caesar (“All in personam jurisdiction is divided into two parts”) but that makes a reasonable case against jurisdiction particularly in light of recent Supreme Court precedent. But ultimately, again, I think that the plaintiffs’ relationship with Donziger will make this an uphill jurisdictional battle. Neuborne calls Donziger the “nominal agent” and the LAPs the “nominal principals,” and writes: “It borders on the Kafkaesque to insist on treating indigenous peoples residing in the Ecuadoran rainforest as true ‘principals’ who actually directed, controlled, and ratified their attorney/agents’ activities all over the world …” I don’t know. I think Neuborne’s attitude may not be fully respectful of his own clients’ moral agency. The LAPs are not children, after all.

I haven’t covered everything—I’ve left out Neuborne’s paean to comity, for example. But on the whole, a strong brief that, I am happy to say, picks up on some themes I’ve been interested in for a while.

I’ll report on the Donziger brief as soon as I’m able.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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