New Lago Agrio Feature: Sleaziest PR Of The Week

Every now and then some piece of PR in the Lago Agrio case strikes me as particularly sleazy. I read it and I feel like taking a shower. I could point to examples from both sides of the case. But this week, the winner is a press release from Hinton Communications about the amicus brief recently filed in the Second Circuit by Legal Momentum, formerly the NOW Legal Defense and Education Fund.

It takes a lot of chutzpah to accuse Legal Momentum of corruption, but there it is:

The legal arm of the National Organization for Woman (“NOW”) is under attack from rainforest indigenous villagers and their allies for accepting a large donation from Chevron and then filing a legal brief in favor of the oil company in its campaign to evade an Ecuador court judgment ordering it to clean up extensive oil contamination in the Amazon.

The NOW legal group never disclosed its financial ties to Chevron in the “friend of the court” brief filed recently before the United States Court of Appeals in New York, raising ethical concerns and infuriating women in Ecuador who have battled for two decades to hold Chevron accountable for dumping billions of gallons of toxic waste onto their ancestral lands.

“This is a very disturbing example of how NOW’s legal advocates are both deceiving courts and openly betraying the women of Ecuador who have suffered hugely at the hands of Chevron,” said Mariana Jimenez, a resident of Lago Agrio, a small town in the rainforest that served as the headquarters of Chevron’s operations in the country from 1964 to 1992.

The implication is that Chevron bought the amicus brief with its charitable donation. Really? What’s the evidence? Well, there is none, in the press release at least. But it wouldn’t be surprising if someone on Chevron’s side made Legal Momentum aware of the case and asked if it would be interested in submitting an amicus brief. Aha! Corruption! Well, no. Legal Momentum isn’t pretending to be disinterested, nor is disinterestedness required of amici curiae. Legal Momentum has a clear interest in the outcome of the RICO jurisdictional issue, and it’s no secret. It’s set out in the brief:

Legal Momentum was an early and successful advocate for the use of injunctive relief under RICO, beginning in the 1980s. In response to waves of violent anti-abortion harassment around reproductive healthcare facilities, Legal Momentum filed suit in multiple jurisdictions to obtain RICO-based injunctions against defendants who systematically and repeatedly violated women’s constitutional rights using nakedly criminal tactics. In
National Organization for Women, Inc. v. Scheidler, Legal Momentum won such an order from the district court to restrain the commission of violent crimes by Joseph Scheidler, the Pro-Life Action League, and others, and successfully defended that ruling in the Seventh Circuit. See Nat’l Org. For Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001), rev’d on other grounds, 537 U.S. 393 (2003). Scheidler and cases that have followed it are correct.

Legal Momentum’s sole interest in this litigation is to preserve these rulings.

The Hinton Communications press release is an example of the tendency of both sides in this case to demonize everyone who has anything to do with the other side. I’m not a PR person, but I can’t imagine that a piece like this does anything at all to persuade people not already committed to supporting Steven Donziger. To the contrary—I think open-minded and thoughtful readers must be turned off by this kind of thing.

I’ll be on the lookout for future examples from both sides to add to my wall of shame. The parties, if they want to avoid being featured on the list, are advised to chill.

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.

4 thoughts on “New Lago Agrio Feature: Sleaziest PR Of The Week

  1. Ted,

    “….it wouldn’t be surprising if someone on Chevron’s side made Legal Momentum aware of the case and asked if it would be interested in submitting an amicus brief.” Really?

    This is how it went down.

    Elaine Wood, who wrote the brief and is the elected Chair of Legal Momentum’s Board, works for Alvarez & Marsal, where she specializes in “investigations relating to asset searches, corporate contests and multinational litigation.” See bio and press release:

    http://www.alvarezandmarsal.com/elaine-wood

    https://www.legalmomentum.org/press/g-elaine-wood-elected-chair-legal-momentum-board-directors-laura-wilkinson-elected-first-vice

    At least two Alvarez employees list Chevron as a client:

    http://www.alvarezandmarsal.com/jeff-paradowski

    http://www.alvarezandmarsal.com/marc-morrison

    At least two once worked for Chevron and now work for Alvarez in Houston:

    http://www.alvarezandmarsal.com/wendy-hallmark

    https://www.linkedin.com/in/kellymclachlan

    You used the word “corruption,” we didn’t. We believe Legal Momentum should have disclosed to the court its and Wood’s connections to Chevron, as well as the financial contributions.

    Legal Momentum has every right to submit an amicus on behalf of Chevron, if that is how NOW and Legal Momentum want to spend their resources and time — fighting on behalf of a company whose predecessor polluted the Ecuador rainforest and contributed to a number of diseases and death among the indigenous and poor villagers in the area.

    We have every right to point out the connections, both in terms of relationships and financial contributions.

    Unlike the 17 environmental and human rights groups that filed an amicus on the Ecuadorians’ behalf and have advocated on behalf of environmental issues in the Amazon and other places, Legal Momentum has not uttered a public word about RICO — in the context of the Ecuadorians’ case — during two years of RICO-related actions in Judge Kaplan’s courtroom. And Chevron, to be kind, has never made a woman’s right to choose a policy priority.

    To NOT disclose is my definition of sleazy.

  2. The anonymous team that writes The Chevron Pit blog, which may or may not include Hinton Communications or Steven Donziger himself, has doubled down on this, writing: “It is a requirement under the federal rules that any ties to a party in a litigation be disclosed in the first footnote of an amicus brief by a supposedly independent entity.” This misstates the rule. Under FRAP 29(c)(5), the obligation is to disclose whether a party or its counsel wrote the brief in whole or in part, and whether a party or its counsel “contributed money that was intended to fund preparing or submitting the brief.” There is no requirement to disclose “any ties to a party,” such as the board memberships The Chevron Pit has now focused on. The CP did get one thing right, though: under Local Rule 29.1, the disclosure does have to appear in the first footnote.

    I suppose a warning from Letters Blogatory to “chill” is not really going to chasten anyone, but still!

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