Lago Agrio: Are The Disclosures About Doug Cassel’s Work for Chevron Sufficient?

Readers, I feel a sense of responsibility when someone who contributes to Letters Blogatory gets in some sort of trouble on account of what he or she has written here. The first instance of this was the case of Allison Morris, a journalist with the Irish News. Those of you who followed the Belfast Project case will remember Morris had interviewed Dolours Price, and there was some reason to think that her articles about that interview led to the Belfast Project fiasco. Anthony McIntyre, one of the men who conducted the interviews with former IRA members that the Northern Irish authorities sought and obtained from the United States under the US/UK MLAT, claimed that Morris was a police informer and an agent of the British state, which, she claimed, put her life in danger. Morris then complained to the National Union of Journalists, which suspended McIntyre. McIntyre appealed, and I noted that Morris, his accuser, did not appear at the hearing. Although I hadn’t asked her for her explanation, Morris wrote that she didn’t attend because of work commitments and because of the financial strain financing the trip to London. It turned out that she had sent a bunch of tweets that showed that she had traveled to a soccer match at the time of the hearing. So maybe her earlier explanation on Letters Blogatory was untrue, though in my view her sin was a venial one; but McIntyre and his allies piled on in a way that to me seemed cruel and over-the-top, even if they would have been within their rights to have a laugh at Morris’s blooper.

Now it is Doug Cassel’s turn. As long-time readers know, Doug has written many posts and comments on the Lago Agrio case. He is an international human rights law specialist with lots of Latin American expertise. Doug also represented Chevron in litigation relating to the Lago Agrio case before the Inter-American Commission on Human Rights, and he has consulted with the company. I often invite Doug to participate as a kind of informal proxy for Chevron in order to provide a counterweight to my own views, since in some ways I think I view the LAPs’ efforts to obtain recognition and enforcement of the Ecuadoran judgment more favorably than most independent observers of the case. Whenever I invite Doug to contribute, I also invite a representative of the LAPs, though I have not had as much luck encouraging them to contribute. (Aaron Marr Page has been kind enough to contribute posts on a couple of occasions and is a frequent commenter). Sometimes I also invite representatives of the Ecuadoran government, though again, with notable exceptions, I have had less luck there.

Representatives of the LAPs have often complained about the disclosures Doug has made (and I have made) concerning his relationship with Chevron in his Letters Blogatory posts. Here’s the official Letters Blogatory policy on this: each post identifies him as an advocate for Chevron and notes that he represented Chevron in the IACHR proceedings. I don’t know how much Chevron has paid Doug and I don’t ask him to disclose it. If Steven Donziger agreed to write for Letters Blogatory (I’ve asked many times—no luck yet!) I wouldn’t ask him to disclose the size of his stake in the Ecuadoran judgment or the amount of any money he received while working on the LAPs’ case. The point is that people know that Doug has ties to Chevron and has worked on aspects of the case for Chevron. So if readers think Doug’s ties to Chevron bear on his credibility, they can make their own decisions.

Unnamed representatives of “the team working to hold oil giant Chevron accountable for its human rights and environmental abuses in Ecuador” published a post on Cassel at the Chevron Pit blog on September 11. It’s an attack piece, apparently meant to pressure Cassel, or perhaps to pressure his academic home, Notre Dame Law School. Here’s a sample:

While Cassel reaps cash for the arrangement, Notre Dame must pay a high cost via its harmed reputation and compromised academic integrity. The New York Times just exposed the same type of academic corruption at various universities—including the University of Florida—where Monsanto and other companies are battling to stop the labeling of genetically-modified foods by quietly paying academics to advocate their positions without full transparency.

Amazon Watch tweeted the about the article:

I responded, calling the tweet “baffling.”

And the unnamed authors of The Chevron Pit tweeted back:

Hence this post.

The post about Cassel is reminiscent of the LAP’s attack on Legal Momentum, formerly the NOW Legal Defense and Education Fund, or their attack on Judge Kaplan: in both cases, the attack was based on a failure to disclose financial ties to Chevron, and in both cases, I think my posts showed that the attacks were unfounded. In Judge Kaplan’s case, the complaint was that the judge, like probably millions of Americans, owned shares in mutual funds that, in turn, owned shares in Chevron. The LAPs’ advocates skewered the judge, but as I showed, there was no disclosure requirement for such an attenuated interest. In Legal Momentum’s case, the claim was that Legal Momentum had received and failed to disclose a donation from Chevron. I showed, in the post and in the comments to the post, that there was no requirement of disclosure and that, in any case, Legal Momentum had good reasons of its own to favor Chevron’s position on the availability of equitable relief in RICO cases brought by private parties, since it had brought such cases itself in the context of abortion rights.

You may disagree with me, but my sense is that these over-the-top attacks do more harm than good to the LAP’s public relations effort. I mean, who are they intended to persuade? Can anyone not already committed to the LAPs’ view of the case really take them seriously? Can serious people who are committed to the LAPs’ view of the case take them seriously?

But what is really surprising to me about the attack on Doug is that it comes immediately after I published a post in which Doug argued that the Canadian Supreme Court was right to hold that the Canadian courts had jurisdiction to hear the LAPs’ claim for recognition of the Ecuadoran judgment. Did the authors read Doug’s post before publishing the attack? Wouldn’t it have been better to declare victory (“Even Doug Cassel agrees that Chevron was wrong about this”)?

So to answer the Chevron Pit tweet directed at me: I think Doug Cassel’s disclosures on his Letters Blogatory posts are sufficient; I would prefer people to respond to the substance of what he says than to keep raising this point ad nauseam or to try to drag his employer into it; and I welcome any person the LAPs or Steven Donziger put forward to write a guest post for Letters Blogatory that addresses the substance of Doug’s views.

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.

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