Lago Agrio: What’s Your Prediction?

The Lago Agrio plaintiffs filed their reply brief a few days ago. The brief, by Burt Neuborne, is very well done, as expected. I am not going to review it in detail. One interesting note: Neuborne cites Paul Barrett to make a point that I’ve made here before: whatever the quality of the Ecuadoran courts when they rendered their decisions in the Lago Agrio case, they were no great shakes before. I don’t suppose Barrett expected to be cited in the plaintiffs’ brief!

I haven’t studied the schedule in the case, and I’m not completely sure why Steven Donziger has not filed a reply brief. But in any event, the briefing is either complete or very nearly complete, and so it’s time to invite you, readers, to make your predictions about the outcome of the case in the comments to this post. You can be as technical or as impressionistic as you like. You’ll have a chance to revise your predictions after oral arguments if you want. I will also make my prediction in a few days.

Indiana Jones, World's Greatest Archaeologist, Destroys Every Ancient Temple He Enters
Fortune and glory, kid.

The reader with the best answer (in my sole and unreviewable discretion!) will win fortune and glory, and a special Letters Blogatory prize.

Good luck!

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.

3 thoughts on “Lago Agrio: What’s Your Prediction?

  1. I would predict some success for the LAPs, since they are well prepared this time round and have some strong arguments.

    I think the injunction will be vacated. Kaplan believes there is no firm decision as to whether injunctive relief is available under RICO – but congress have twice had the opportunity to expressly write it in, and have declined to do so. This would imply that it is not the way in which the statute was intended to be used. Additionally Kaplans previous injunction was vacated. Douglass Cassel tells me that the two injunctions are ‘like night and day’, and whilst I would not want to argue with the professor, they look more like slightly different shades of grey, since they achieve a very similar result.

    Far more difficult to predict is what will happen to the opinion. Without the availability of the injunction, this was a trial without remedy, and so presumably lacked standing. Yet in this instance, the opinion is almost as valuable to Chevron as the injunction, and if left intact, it’s a potential game changer. So even though the second circuit could well vacate the injunction, Chevron will still be touting the opinion, and using it as a barrier to collection. This is wrong – court time is surely not for holding trials without remedy just so as the judge can write an opinion. But the opinion has now been written, and it is probably difficult to make it disappear.

    Of course, should the second circuit choose to examine it, they may question that, when writing this opinion, so much faith was placed in the testimony of a judge who is a self confessed crook, and who has been well rewarded for his appearance. Perhaps they will have their own opinion on this.

    So, some significant success is the prediction, but I’d guess we’re still some way from Chevron compensating the victims.

    1. Thanks, Peter, for taking up the gauntlet! You have won the Letters Blogatory special prize, and you might have won it anyway even if others had participated, as I think your comment is insightful. I will email you separately re the details.

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