Lago Agrio: Chevron’s Brief in Opposition to Cert.
Posted on May 31, 2017
Chevron has filed its brief in opposition to Steven Donziger’s petition for certiorari. Ted Olson and company have, as one would expect, produced a high-quality brief to stand against the similarly high-quality brief submitted by Deepak Gupta.
The most important part of the brief, from a technical perspective, is the discussion of the circuit split on standing to bring equitable RICO actions. It’s a true circuit split, but Olson describes it as “stale and shallow.” The idea is that the split exists on paper but not really in practice, and that the court should not feel the need to settle it. I’ve opined before that if the court takes the case, it will be to resolve this split, so I think that how the justices respond to Olson’s argument will be important to their decision whether to take the case. I’m sure that Supreme Court specialists have a sense of the importance of whether a split is “stale” or “fresh,” but I don’t have much to say on that point.
The other important point in the brief is the recitation of the facts of the fraud (this is just shorthand for the fraud I think Chevron proved—Cabrera—and the fraud that Chevron thinks it proved but where I’m not so sure—Guerra). The goal, probably, is to make the justices disinclined to weigh in, particularly in a case like this where the facts are not in dispute (by which I mean, with all due respect to Donziger partisans who have commented here, that Donziger did not appeal from the findings of fact). Given the facts as they were found, do the justices have the sense that there is some injustice here that needs to be remedied? Of course, that’s not important doctrinally, but I do think it matters in the background.