Lago Agrio: Kimerling’s Case Dismissed

A New York court has affirmed a decision dismissing a lawsuit Judith Kimerling brought on behalf of the Huaorani people on forum non conveniens grounds.

The gist of the case was that Donziger and the Amazon Defense Front had falsely represented to the Ecuadoran court that the ADF represented the interests of all the plaintiffs, including the Huaorani, and on that basis, the Ecuadoran court had made the ADF the beneficiary of a trust established by the judgment and directed Chevron to pay ADF an additional 10% of the aggregate value of the environmental remedial measures it ordered, totaling more than $864 million. But, they claimed, neither Donziger nor the ADF was authorized to represent them.

As I wrote in my first post on the case:

Third, and this is really my most devout wish, what are the chances that Donziger will seek to dismiss the case on forum non conveniens grounds, or otherwise asks the US court to defer to the Ecuadoran courts? At face value, this does seem to me to be an issue that is properly put to the courts of Ecuador, and an FNC motion would really bring the case full circle. Maybe that’s too much for an observer to ask!

The court held that “The motion court correctly rejected plaintiffs’ contention that Ecuador is not a suitable forum.” Good news for Donziger, though in light of the next sentence it probably has little effect in the other proceedings: “In any event, New York does not require an alternate forum for a non conveniens dismissal.”

I never really understood the strategy behind Kimerling’s opposition to Donziger’s FNC motion. She ended up having to say things that called the suitability of Ecuador as a forum into question. But wouldn’t that just end up undercutting the Lago Agrio judgment itself? It may be that the politics in Ecuador are really unfavorable for the Huaorani. But it seems to me that it might be better for the Huaroani to take their chances in Ecuador than to succeed in an argument that could really undercut the judgment they’re fighting for their share of.

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.

2 thoughts on “Lago Agrio: Kimerling’s Case Dismissed

  1. Of course, unlike the original US case, Aguinda, Kimerling’s case has everything to do with Ecuador, as the state appellate court points out: dispute among Ecuadorians over a judgment issued, and affirmed by, the Courts of Ecuador. Also, Chevron has declared repeatedly that it will never pay the judgment in any event, and sadly, is spending millions in legal fees monthly to achieve that end rather than to remediate the pollution proved in the underlying Lago Agrio action, no evidence of which was allowed by Judge Kaplan in the RICO case.

    1. Lynne, thanks for the comment. I’m not sure I agree. It’s not just a dispute among Ecuadorans. Donziger also is a defendant, just as Texaco was a defendant in Aguinda. In any case, the bigger issue seems to me to be whether it is wise for folks who want someday to benefit from the Lago Agrio judgment to call the integrity of the Ecuadoran proceedings into question, as Kimerling has done.

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