Lago Agrio: New State Department Records Show Extent Of Lobbying

The latest batch of FOIA records from the State Department shed further light on the lobbying concerning the Lago Agrio case. Among other interesting items, we now know that Chevron’s CEO personally lobbied the Secretary of State. Read on!

  • While I have focused on Chevron’s lobbying, these records show that the Lago Agrio plaintiffs lobbied, too. For example, in an email from Keith Loken of the Office of the Assistant Legal Adviser for Private International Law to Treasury Department representatives and an Assistant US Attorney in the Southern District of New York (!), there’s a reference to back-to-back meetings with Chevron and representatives of the plaintiffs. Interestingly, it appears that the LAPs sought the meeting first, and that the Department then reached out to Chevron, presumably to ensure that it was getting both sides of the story. “I understand,” wrote Randy Mastro in his letter to Mr. Loken in advance of the meeting, written in June 2011, after issuance of the later-vacated preliminary injunction, “that these lawyers sought to prompt the Department to involve itself in” the case before Judge Kaplan. In my mind, the LAP activities reflected in these documents call into question the correctness of the statement their representative made to me back in October 2013: he claimed the LAPs “have not lobbied the State Department on anything.” Ecuador itself got involved, too: its procurador general, Diego Garcia Carrion, also traveled to Washington to lobby on the case. Apparently he met with Under Secretary Hormats.
  • In another contemporaneous letter, from Mr. Mastro to Harold Koh, then the Legal Adviser, it seems clear that Mr. Koh had doubts about the propriety of Judge Kaplan’s injunction as a matter of comity international law. As the Naranjo case later showed, those concerns—which are not reflected directly in the documents—were well-founded. Mr. Koh continued to express concerns through 2012, apparently wondering about the BIT tribunal’s power to award interim relief (recall that the tribunal ordered Ecuador to suspend the operation of its court’s judgment pending the outcome of the arbitration).
  • Chevron involved Brian Pomper, a lobbyist with Parven Pomper Schuyler, in his discussions with the Department in 2009. This is interesting because PPS was a Democratic boutique lobbying firm. But perhaps this is naive: PPS’s clients included many major corporations such as Monsanto, Pfizer and Sunoco.
  • I have previously reported contacts between the Department and Chevron’s CEO, John Watson. We now know that Mr. Watson spoke directly with the Secretary of State to express Chevron’s concerns. Apparently the conversation took place at a fancy dinner. How gauche!
  • I was surprised to receive it, but the Department has produced what appears to be a draft of instructions from Washington to the ambassador in Quito instructing him to deliver a demarche to the Minister of Foreign Affairs complaining about Ecuador’s failure to comply with the interim arbitral award.
  • I wish we could know more about a remark in this email from the US embassy in Quito to Washington. Referring to a Chevron position paper opining that Ecuador had violated the conditions of eligibility for trade preferences under the ATPA, the staffer writes that Chevron’s “summary of the broader political and economic environment … has a number of errors of fact.” It would be interesting to have a better sense of areas where the State Department folks most knowledgeable about Ecuador and Chevron disagreed.
  • In a Sept. 18, 2007 meeting with the Department, Chevron deputy general counsel Ed Scott outlined Chevron’s strategy. The company, asserting it could not get a fair trial in Ecuador, planned to seek dismissal of the Lago Agrio case and to “combine the filing with a PR campaign in which it will speak publicly about the many judicial irregularities the company has encountered.” The dates for the filing and PR campaign “were carefully selected to take place between the election of the Constituent Assembly and the time that the Assembly begins its work.”
  • Finally, we see indications of attempts to get Congress involved. I believe this is a reference to H. Res. 745, introduced by Rep. Connie Mack in July 2012, which questioned the independence of Ecuador’s judiciary and noted Ecuador’s failure to comply with the interim award in the BIT arbitration. The resolution was referred to committee but never adopted by the House of Representatives, but it’s clear that some representatives took an interest in the issue, perhaps at Chevron’s urging.

The good news is that the Department has now produced (with some redactions) all of the documents it had previously withheld on the grounds that it had to consult with the third party that submitted the information they contained before releasing them. It’s pretty obvious now that that third party must have been Chevron. Frankly it’s not clear to me why the documents were deemed sensitive enough to raise concerns, though I have some ideas about that that I’m following up on. The Department has not, however, produced the documents I requested in my second FOIA request, namely, the correspondence between Chevron and the Department concerning my first FOIA request, and whether the documents ought to be disclosed to me. I shall, as they say, have to consider my position.

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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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