Lago Agrio: Maneuvers In The Second Circuit

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Chevron’s amici have started to weigh in in the Second Circuit. Maybe the most interesting, politically, is the brief of Legal Momentum, formerly known as the NOW Legal Defense and Education Fund. The support from a women’s civil rights group has inspired tweets like this one from Fortune reporter Roger Parloff:

Occasional Letters Blogatory commenter Paul Paz y Miño has shot back:

Parloff is basically right. Legal Momentum is supporting Chevron. Hence the crowing by Chevron allies and the defensiveness by Chevron opponents. However, it’s clear that Legal Momentum has a very well-defined interest in the outcome of one of the technical questions in the case, namely whether a private party has standing to seek injunctive relief under the RICO statute. Legal Momentum “was an early and successful advocate for the use of injunctive relief under RICO, beginning in the 1980s.” It obtained injunctions under RICO in cases against anti-abortion activists harassing patients or doctors around abortion clinics, and it says its “sole interest in this litigation is to preserve these rulings.” Fair enough.

On another front, Donziger and the Lago Agrio plaintiffs have jointly moved for assignment of the appeal to the same panel that decided the Naranjo case. This is smart. Although the doctrinal issues are different, the gist of Naranjo, which was clearer in the oral argument than in the decision itself, was a discomfort about the US courts as super-courts. But this is an entirely discretionary decision for the court, at least as far as the motion shows.

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 2012), 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.

4 thoughts on “Lago Agrio: Maneuvers In The Second Circuit

  1. I think Legal Momentum’s argument runs against prevailing winds. Three reasons for this: first, the Second Circuit ought to know that Civil RICO has already extended well beyond its original remit. This much the Supreme Court has okayed, but many many suits under 1964(c) are supplemental claims that cover conduct that, absent RICO, would be straightforward state law claims for tortious interference with contract. Does the Second Circuit really want to approve permanent injunctions from federal court for a statute that more often than not crops up in commercial litigation than anything else?

    Second, the remedy Legal Momentum seeks to protect in order to fight what it calls “harassment” is just as easily characterized as a tool to impose unlawful restraints on conduct that is either constitutionally protected or, that failing, conduct which U.S. courts have no business regulating (foreign recognition of foreign judgments, for example).

    Third, it makes just as much sense to impose a limited reading on 1964(a)’s applicability to (b) & (c). Congress has already provided for statutory treble damages and attorneys fees. Isn’t that enough to make Legal Momentum’s “repetitive litigation” justification a bit flimsy? I imagine that if their lawyers make out a successful case under RICO against an anti-abortion organization and win treble damages and attorney’s fees, they would only be too happy to litigate the case again for continued RICO violations by the same defendant.

    1. Walker, I think you’re right insofar as the weight of authority does not allow private actions for injunctive relief under RICO. This is a good example of a point that often eludes non-lawyers: a case that’s in the news can turn on a point that has nothing to do with the issues that got the case into the news in the first place!

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