• Did Donziger win a big case against Chevron in Ecuador? Yes, Donziger was the US lawyer for Ecuadoran plaintiffs who prevailed in a lawsuit in the Ecuadoran courts that resulted in a multi-billion dollar judgment. However, a US court found that he obtained the judgment by fraud and enjoined him and his clients from seeking to enforce it in the United States. (The US case about whether the Ecuadoran judgment was obtained by fraud is called the “RICO case”). Efforts to enforce the judgment in Argentina, Brazil, and Canada have also been unsuccessful. An international arbitral tribunal, established under a treaty between the United States and Ecuador, has also ruled that Ecuador has an obligation under international law to suspend the effectiveness of the Ecuadoran judgment. The Lago Agrio plaintiffs have received nothing, and to the best of my knowledge, there are no proceedings underway anywhere in the world to enforce the judgment.
• Have non-US judges held that the Ecuadoran judgment is enforceable? Yes, judges in Ecuador have held that the judgment is enforceable. Donziger claims, incorrectly, that judges in Canada have also held the judgment is enforceable. In fact, the Canadian courts held that the Canadian courts had jurisdiction to hear the Ecuadorians’ claims that the judgment should be enforced in Canada, but they never held that the judgment was entitled to enforcement, and in the end, the case did not go forward because the Canadian courts decided that the Ecuadorians would not be able to look to the assets of Chevron’s subsidiary in Canada to satisfy the judgment, even if they won the case.
• Is Donziger being punished because he won a big case against Chevron in Ecuador? No, Donziger is being punished for willful disobedience of US court orders issued after he lost the RICO case, for example, an order forbidding him from monetizing his own financial interest in the Ecuadoran case, an order requiring him to assign interests in that judgment to Chevron, and an order requiring him to turn over documents to Chevron after unsuccessfully arguing that he should not be required to turn them over. There is really no question that he violated the court’s orders. The court tried to get him to comply using civil sanctions, but Donziger still has not complied with some of the court’s orders. Under the “collateral bar rule,” you have to obey a court order, even if it later turns out to be erroneous or invalid, unless you obtain a stay of the order while you appeal it, and Donziger did not obtain a stay. The collateral bar rule was the same rule that led to Martin Luther King’s imprisonment after he disobeyed a court order forbidding a demonstration, even though the order was unconstitutional under the First Amendment.
• Was the US court’s finding of fraud based on the testimony of an admitted liar? Yes, in part. One of the court’s findings was that the Ecuadoran judgment was ghostwritten and that Donziger and his clients had bribed the judge. That finding was based in large part on the testimony of Judge Guerra, an Ecuadoran judge. In later proceedings, Judge Guerra admitted that he had lied to Chevron about the amount of the bribe he had been offered. An international arbitral tribunal, which was aware of the lie, nevertheless credited the main parts of Guerra’s testimony. And Donziger never appealed from the US judge’s findings of fact. Nor did he ever seek to reopen the judgment after Guerra admitted he had lied to Chevron. In any case, the US judgment was not based only on Judge Guerra’s claims of bribery and corruption, but also, for example, on the undisputed fact that Donziger’s team ghostwrote the report of a supposedly independent expert, Richard Cabrera, on which the Ecuadoran court’s findings about the pollution were based. Donziger claimed, unsuccessfully, that Ecuadoran law allowed for the ghostwriting.
• Did Chevron prosecute Donziger? No. Judge Kaplan, the judge who began the criminal contempt proceeding, asked the US attorney to prosecute the case, but the US attorney declined. In these circumstances, the Federal Rules of Criminal Procedure required the judge to appoint a private prosecutor. In light of recent Supreme Court decisions, there is a real question about whether the rule requiring the use of private prosecutors is constitutional; conservative legal scholars have been arguing that it is unconstitutional for any official to exercise executive power unless he or she is subject to oversight within the executive branch, and Donziger has argued that the private prosecutor in his case was not subject to the oversight of the Justice Department. I predict that if his appeal is successful, this will be the winning argument.
• Did the United Nations rule that Donziger had to be immediately released? No. The Working Group on Arbitrary Detention, which was established by the Human Rights Commission, is an advisory group made up of scholars. Based on a written submission by Amnesty International, which was, in my opinion, a pretty misleading statement of the case, and without any presentation of the other side of the story, the Working Group opined that Donziger’s home confinement was contrary to the Universal Declaration of Human Rights and the ICCPR. Its opinion has no legal force.
• Is a six-month prison sentence harsh? I think so. If I had been the judge, I would have taken into account the length of the pretrial release on conditions and also the fact of Donziger’s disbarment. On the other hand, Donziger’s disobedience to the court’s orders was flagrant and lasted for years, and so the judge may have felt the need for a harsh sentence to vindicate the importance of the rule of law.

The post Lago Agrio: Donziger Begins Serving Sentence appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The key to my basic approach is in a post from 2018 called “Facts are Created.” The idea is that there are facts that are true about the world, and there are facts that have been finally determined in a judicial proceeding. The two aren’t always the same. Sometimes wrongful convictions happen, for example. Sometimes a jury or a judge gets the facts wrong. But once the court has found the facts, or as I called them in the prior post, the facts′, they are conclusive in their legal effect, at least as to the parties themselves. Is this just some kind of blind, mechanical formalism? No. It is rooted in real principle and a moral view of what the law is. The courts exist to decide disputes. If they can’t decide disputes because their decisions can never really be final, then they cannot deliver justice. Of course there have to be tools for correcting errors. There were tools in this case, namely, appeals and collateral attacks on the judgment. But Donziger didn’t use the first tool, and he has never tried to use the second.

As longtime readers know, Judge Kaplan found that Donziger had bribed Judge Guerra, and wrongfully ghostwritten the Cabrera expert report, etc. Those are the facts′. I have criticized some of Judge Kaplan’s findings, particularly the finding of bribery. But Judge Kaplan found what he found. Donziger and his appellate lawyer, Deepak Gupta, who is a terrific lawyer, both have said many times, including in Donziger’s bar disciplinary proceeding, that Judge Kaplan’s findings are and have always been disputed. That could be true in way. Donziger can say, “I think the judge got it wrong.” But with due respect to Donziger and Gupta and others who have taken this position, it is clearly wrong in the sense that matters. Donziger, no doubt for sound reasons, did not appeal from the findings of fact. Nor has he ever brought a motion to set aside the judgment. The facts′ are what they are. The New York courts have also taken this view by instructing the referee that he must give preclusive effect to Judge Kaplan’s findings of fact.

With this basic view, disbarment seems right to me. The facts′ are what they are, and they seem to support a serious sanction. I could make similar comments about the pending contempt charges against Donziger. There is little question that he guilty of at least some willful contempt of the court’s orders—he has said as much. But Chevron’s continued pursuit of him on the civil judgments against him, when it seems obvious he lacks the ability to pay, and the extended pretrial home detention of him on the criminal contempt charge when there does not seem to me to be a realistic risk of flight, seem to me to be over the top. Chevron’s aim seems to me to be more about sending a message than anything else at this point. The reason why I stopped writing about it is that I think Chevron is pushing too hard and I think that Chevron is in the legal right, the facts′ being what they are.

Anyway, let’s turn to the referee’s decision. The referee acknowledged that he had to accept Judge Kaplan’s version of the facts′. But he took the supposed dispute about those findings as a matter in mitigation, as well as the Ecuadoran appellate court’s rejection of the claims of fraud. To me this seems inconsistent with the requirement to give Judge Kaplan’s conclusions preclusive effect. And this leads to another reason I am depressed about how the case has turned out. The implication of my view is that Donziger deserves punishment (maybe I should write deserves′), and I don’t relish the thought.

The post Lago Agrio: Donziger Referee Recommends Reinstatement appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

It’s been a while, so to make sure you are up to speed on the overall dispute, I am going to provide some overall background to the case. The new Canadian developments are toward the end of the post, so feel free to skip ahead if this is all old hat to you.

Contents

• What is the overall dispute about?
• What happened in the Ecuadoran courts?
• What happened in New York?
• What happened in Canada?
• What happened to Donziger?
• Anything else?

What is the overall dispute about?

Beginning in the 1960s, a subsidiary of Texaco, the American oil company, explored and drilled for oil in the Oriente region of Ecuador, in the northeast of the country. While parts of Ecuador are mountainous, the Oriente is in the lowlands, part of the Amazon rainforest and, especially at the time, undeveloped and still home to many of its indigenous inhabitants, including the Huaorani and the Cofán. Texaco was part of a joint venture with PetroEcuador, the Ecuadoran state-owned oil company. The joint venture lasted to 1992.

There’s no question but that the Texaco/PetroEcuador joint venture led to oil pollution in the Oriente. The scope of the pollution and its effects on the environment and on the inhabitants of the region are sharply disputed, as is the attribution of legal fault, but the fact that pollution and contamination occurred is not.

In 1993, Maria Aguinda and other residents of the Oriente brought a putative class action against Texaco in the Southern District of New York. Aguinda and the others pleaded a claim for relief that would be familiar to any American lawyer: Texaco, they claimed, had been negligent, had caused a public and private nuisance, had trespassed on their land by discharging oil onto it, and had violated customary international law, among other things. The Aguinda case resulted in dismissal under the doctrine of forum non conveniens, which the Second Circuit affirmed in 2002. Forum non conveniens, for the unintiated, is a doctrine, of somewhat uncertain provenance, under which a court will dismiss an action even though it has jurisdiction and even though it is a proper venue if (put very loosely) trial in the chosen forum would be seriously inconvenient and there is another, superior forum available.

Texaco’s victory at this stage in the case would come back to haunt it. One of the considerations in a forum non conveniens case, is the adequacy of the alternate forum. Here is what Texaco had to say about the Ecuadoran courts when it was trying to get the Aguinda case dismissed. I quote at some length because this is such a key point:

Ecuador’s Government is a constitutional democracy with executive, legislative, and judicial branches. Its judicial branch, headed by the Supreme Court, includes special purpose courts and lower courts, which use a Civil Code based on Roman law. Thus, Ecuadorian legal norms are similar to those in many European nations. Ecuador’s Constitution guarantees due process and equal protection, and its courts provide important procedural and substantive rights, as former Supreme Court Justices of Ecuador, jurists, and practicing lawyers informed the District Court in affidavits.

* * *

In response to the District Court’s January 31, 2000 Memorandum Order, the parties submitted evidence concerning the independence and impartiality of Ecuador’s judiciary following the short-lived coup in January 2000. That evidence further proves that Ecuador provides an adequate legal forum and that its judicial system is even stronger today than previously.

Ecuador reaffirmed its commitment to democracy following the failure of the January 21, 2000 military coup. Its democratic, constitutional government continues today, and its judiciary remains independent. Ecuador’s military is not interfering with the judiciary’s or government’s activities. The current Government of Ecuador has taken and continues to take “vigorous steps to further the independence and impartiality of the judiciary.”

* * *

Plaintiffs’ next argument is that Ecuador’s courts are corrupt, but “the argument that the alternative forum is too corrupt to be adequate ‘does not enjoy a particularly impressive track record.’” The most persuasive evidence that Ecuador can and does dispense independent and impartial justice in these cases is the record of corruption-free litigation against Texaco’s subsidiary and other companies. This record provides practical proof that litigants can and do obtain fair treatment and relief in Ecuador’s courts, including in cases relating to Consortium activities. The circumstances in Ecuador are not remotely like those that prevailed in Liberia when this Court decided Bridgeway Corp., which involved a “dysfunctional foreign legal system[].” The opposite is true in Ecuador.

These cases also have received substantial attention from the Ecuadorian government and media, environmental groups, human rights groups, indigenous organizations and other non-governmental organizations. This attention will continue regardless of forum. The public scrutiny these cases will receive in Ecuador and/or Peru will further assure a fair adjudication of plaintiffs’ claims.

I believe Texaco thought that if the litigation were dismissed in the United States the case would be over. At the time it was not clear that anyone had the will or the capacity to litigate a major environmental case in Ecuador on a contingent fee basis, or that third-party litigation funding might be available to support such an effort.

While the Aguinda case was pending, there were some important developments outside of court. First, in 1993, the Ecuadoran government made a deal with Texaco under which Texaco agreed to remediate certain sites in return for a release from the Ecuadoran government. Whether the release also extended to claims by individual Ecuadorans was later a point of contention. In any event, Texaco performed work under the remediation plan, and the Ecuadoran government effectively signed off on the work. The lawyers for the Ecuadorans, including Steven Donziger, one of the main protagonists in the story, apparently were against the remediation plan, though their motives were mixed. It’s clear that some of the sites on the list were not properly remediated, and points that the parties have disputed include: did Texaco (and later Chevron) conceal pollution to create the appearance of adequate remediation? Did Texaco/Chevron stop remediating due to political pressure from the plaintiffs? I address some of these points in my post on my visit to the Aguarico 4 site, one of the sites that was supposed to be remediated but that still (as of 2014 at least) was grossly polluted.

Second, in 2000, Ecuador suffered a coup d’etat that resulted in the military bringing Lucio Gutiérrez Borbúa to power. Gutiérrez adopted a program of neoliberal reforms at the insistence of Ecuador’s international creditors that resulted in the collapse of his government and, in 2006, the election of Rafael Correa Delgado, a left-wing, US-educated economist. One of Correa’s major initiatives was a reform of the judiciary. Whether this was a true reform of an ineffective or corrupt judiciary, or a political takeover of the judiciary, is a point of contention. I’m no expert in Ecuadoran political history, but my big-picture view is that when Texaco pushed to have the case in New York dismissed, it thought the Ecuadoran government was a friendly, right-leaning government (the government, after all, had signed off on the remediation completion), but after 2006, it was facing an unfriendly, left-leaning government.

Third, in 2001, Chevron acquired Texaco. The merger was a so-called “reverse triangular merger,” which if you have never taken a corporations law class in law school is probably gobbledygook to you. I’m not going to explain it here.

What Happened in the Ecuadoran Courts?

Defying the odds, the Ecuadoran plaintiffs went ahead with the litigation in Ecuador, specifically in a court in the provincial town of Lago Agrio. While they were represented by Ecuadoran counsel, they were also represented by Steven Donziger. The Ecuadoran case was sprawling, went on for years, and ended in a judgment of $19 billion, later reduced by half. The judgment was (purportedly) written by Judge Nicolas Zambrano Lozada. For our purposes there were two important things to note about the Ecuadoran proceedings.

First, the initial plan was to determine the truth of the claims about pollution through a judicial inspection process. Each side would conduct a “pre-inspection” using its experts, and then the parties, in the judge’s presence, would conduct the judicial inspection. The judicial inspections and pre-inspections are key to the case. On the one hand, Donziger and his team disliked the judicial inspection process because it seemed not to be producing the results they wanted. On the other hand, Donziger and the Republic of Ecuador itself asserted that Chevron was manipulating the pre-inspection process to help ensure favorable results by, for example, looking for “clean” areas in the pre-inspections and then offering those areas for inspection during the judicial inspections.

In any event, Donziger eventually persuaded the court to abandon the judicial inspection process and instead to appoint a single global expert who would be independent of the parties and who would report his results to the court. Here we come to what I consider the main point that Chevron was able to prove in the New York proceedings: the global expert, Richard Cabrera Vega, was in fact not independent at all, despite the protestations of Donzgier’s team. Indeed, the plaintiffs’ team wrote Cabrera’s report. (Donziger’s claim is that this was permissible under Ecuadoran law). The report’s true authors were from Stratus Consulting, the plaintiffs’ US environmental experts. They later disowned the report under heavy-duty litigation pressure from Chevron. (Chevron also proved a less significant instance of misleading the court: one of the plaintiffs’ experts, Charles Calmbacher, testified that the report the plaintiffs had submitted over his signature was not his report).

The second big point: Chevron has claimed that not only was the Cabrera report a fraud, but that Judge Zambrano’s judgment itself was a fraud, ghostwritten by the plaintiffs with the help of another judge, Alberto Guerra Bastidas, in return for a bribe. Now, Judge Zambrano hardly cut am impressive figure when he testified in New York. But Judge Guerra, who was Chevron’s star witness in the New York trial, lacked credibility in my eyes and the eyes of some other observers. Why believe a witness who admits to taking bribes and whom Chevron, in an ethically dubious move, has paid a lot of money and relocated in the United States? Moreover, Guerra’s story is that when he was soliciting bribes, his first choice was to ask Chevron for a bribe, which is difficult to square with Chevron’s basic story about a corrupt Ecuadoran judiciary politically in the bag for President Correa and out to get Chevron no matter what. Chevron’s attempts to corroborate the testimony were unconvincing to me; there is some evidence that the plaintiffs themselves were unaware of what the judgment would say before it was handed down; and newly disclosed forensic work, which Chevron disputes in part, casts more doubt on the ghostwriting claim. So although Judge Kaplan, the judge in the New York case, credited Judge Guerra’s testimony, I highly doubt I would have credited it had I been there to hear it.

Chevron appealed Judge Zambrano’s judgment to an intermediate appellate court, which affirmed the judgment. Chevron then appealed to the Ecuadoran Supreme Court, which again affirmed, though it reduced the damages by half (Judge Zambrano had originally awarded approximately $9 billion in compensatory damages and imposed what amounted to a $9 billion punitive damages award on account of Chevron’s failure to apologize. The appellate court held that this was improper). One point to note is that Ecuador follows the civil law, not the common law. Donziger’s team has argued that under Ecuadoran law the intermediate appellate court, following the civil law tradition, reviewed the evidence de novo, rather than simply taking the facts that Judge Zambrano had found and reviewing them against the record. This point will become important later, as we’ll see.

So as a result of the proceedings in Ecuador, the plaintiffs have a multi-billion dollar judgment against Chevron. But because Chevron has few if any assets in Ecuador, the Ecuadoran judgment, on its own, doesn’t do them much good. They must seek recognition and enforcement of the judgment in states where Chevron does have assets.

What happened in New York?

You might think the obvious choice for the plaintiffs would have been to seek recognition in the United States, where Chevron is based, and more specifically to seek recognition in a state like Delaware, where it is incorporated, or California, where it has its headquarters. But although the plaintiffs in my view did inadvertently seek recognition of the Ecuadoran judgment in the United States by arguing that the US court had to give preclusive effect to Judge Zambrano’s findings, that was a mistake on their part and they have made it pretty clear that they won’t ever seek recognition and enforcement of the judgment here. So the New York litigation did not arise out of the plaintiffs’ efforts to enforce the judgment, but rather out of Chevron’s attempt to avoid the consequences of Texaco’s calamitous decision to have the action tired in Ecuador rather than in New York in the first place.

Chevron was aided by its masterful use of the US judicial assistance statute, 28 U.S.C. § 1782, which allowed it to use the US courts to uncover lots of juicy evidence that it was able to use in its lawsuit against Donziger. For Donziger had made a decision just as foolish as Texaco’s decision about forum non conveniens: he had invited a film crew led by documentarian Joe Berlinger along for the ride in Ecuador. Chevron, turning back a First Amendment challenge, was able to compel Berlinger to turn over many hours of “outtakes” that had not made it into his acclaimed documentary about the case, Crude. Donziger has disputed the spin Chevron has put on the outtakes, but there’s no question that upon arrival they were highly damaging and that several US judges to whom the outtakes were presented were not amused. Donziger is shown, for example, meeting with Cabrera and the Stratus Consulting team and talking about planning Cabrera’s supposedly independent report. He is shown in a car on his way to confront the judge, giving some choice views about the Ecuadoran judiciary: “They’re all corrupt! It’s their birthright to be corrupt!” My favorite clip shows Donziger in the car, on the way to confront the judge. “We’re going to let him know what time it is,” Donziger sneers, like he was playing a scene in The Godfather.

With this evidence in hand, Chevron sued Donziger and some of the plaintiffs under the US RICO statute, the law aimed at racketeers, and under the common law. They also sought a declaration that the Ecuadoran judgment was not entitled to recognition or enforcement. And they sought and received a preliminary injunction enjoining Donziger and the plaintiffs from seeking to enforce the judgment anywhere in the world. The injunction was too much for the Second Circuit, which vacated it in a brief order. The court’s full opinion in Naranjo, when it came, went further, holding that Chevron couldn’t even seek a declaration about the judgment’s unenforceability until the plaintiffs sought to enforce it in the United States. (I’ve questioned the wisdom of the decision and suggested it should be read in light of the evidence that the plaintiffs never intend to seek recognition in the US, since otherwise the decision seems hard to square with the law of declaratory judgments).

The parties went on to litigate the RICO case. I won’t attempt to summarize all the twists and turns here. One point of interest, though, is the way that Chevron, no doubt bringing enormous litigation pressure to bear, was able to turn Donziger’s allies against him one by one: Stratus Consulting, the plaintiffs’ third-party funders, Burford Capital and James Russell DeLeon, and even their former lawyers, Patton Boggs. As the trial approached, Chevron, which had been seeking damages and had demanded a jury trial, realized that it had a pretty sympathetic judge in Judge Lewis Kaplan, and it dropped its claims for damages, which had the effect of removing from the case the issues that could have been tried to a jury and left Judge Kaplan with the unenviable job of preparing detailed findings of fact. The RICO trial resulted in extensive findings of fact in which Judge Kaplan decided—not to put too fine a point on it—that Donziger was a crook who had orchestrated a massive scheme to defraud Chevron by corruption and by taking advantage of the already-corrupt Ecuadoran court.

Donziger appealed from the judgment. Notably, he didn’t appeal from any of the findings of fact, probably reasoning that given the standard of review (clear error), it was tactically unwise to try to fight about the facts when there were significant issues of law. Here I will repeat some of what I wrote at the time about the appeal and the Second Circuit’s decision affirming the judgment:

The judges rejected what I thought was the most interesting argument in the appeal. According to Donziger, even if the decision of the Ecuadoran court of first instance was obtained by fraud, the intermediate appellate court had the power to review the decision de novo and even to make its own findings of fact. Since there was no real claim that the appellate court was corrupt or that the appellate decision was obtained by corruption, the appellate decision effectively mooted the claim that the first instance decision was corrupt. But this was not persuasive to the court:

Notwisthstanding Donziger’s repeated characterization of the Appeal Division’s affirmance of the Lago Agrio Judgment as a “substitute judgment,” the fact remains that the Division did not alter the Lago Agrio Judgment at all. The only change in the Judgment entered by Judge Zambrano was made by the Ecuadorian National Court, which vacated the punitive damages award; and the National Court made clear that is role as a cassation court was to concern itself only with the law, not with the facts.

More specifically, the appellate court made no factual findings of its own and “expressly approved Judge Zambrano’s approach and conclusions.” The court seems to have concluded that the appellate court didn’t really do a de novo review or act as though it were reviewing the judgment de novo. But I think something else is going on, too. The court quotes some particularly puzzling language from the appellate decision in a way that makes me think it thought the appellate decision wasn’t worth much:

In sum, as stated by the Appeal Division … “the [trial] judge in his judgment [did] not assess[] each sample and its results separately, as if they described isolated facts”; rather he made a “discretion[ary] … assess[ment of the] scientific evidence.” His “method of interpretation” was “the interpersonal, psychic form or mechanism,” which “is not subject to strict limits in any concrete, express legal rule.”

To me this is the weakest part of the decision. Sure, it’s hard to take the reasoning of the appellate court seriously, but I am not at all confident that that’s not simply a consequence of my ignorance of Ecuadoran law and legal culture. In any event, there seems to me to be something real to the argument that what matters is the court’s power to review the facts de novo, not whether it actually conducted what we would think of as a searching review. But the court’s decision on this point is clearly respectable, and I could well be wrong here—the issue is difficult.

A second point I want to note briefly is the court’s dismissal of the point about judicial estoppel. I think the court’s decision here was right given the language of Chevron’s stipulation at the time of the forum non conveniens dismissal and the grounds the UFCMJRA gives for refusing recognition of a foreign judgment. But I encourage readers to read the exchange that Doug Cassel and I had on the issue of estoppel as part of the Letters Blogatory symposium on forum non conveniens and recognition of foreign judgments.

Last, I want to focus for a moment on the claims against the handful of Lago Agrio plaintiffs against whom judgment had entered. The court correctly (in my view) held that it was proper to attribute the misdeeds of the lawyer to the clients. The LAPs were not sued under RICO, so the question was whether a claim for fraud really lay against them under New York law. The court held that it did, and that nothing in Naranjo suggested that the UFCMJRA was meant to occupy the field. This is puzzling to me. I thought the claim against the LAPs was an affirmative claim for fraud, and when I’ve written about this before, it was through the lens of asking whether New York recognized a cause of action for fraud in the absence of reliance (Judge Kaplan held that it did). But in yesterday’s Second Circuit decision, it seems that the question was not whether Chevron had an affirmative claim for fraud, but whether Chevron could establish a defense to recognition. I will take a closer look at this, but suffice it to say that after a couple of reads of the decision, I don’t really understand this aspect of the decision.

What happened in Canada?

Early on, the Lago Agrio plaintiffs sought recognition and enforcement of the Ecuadoran judgment in Ontario. This was in keeping with the strategy laid out in the Invictus memorandum, prepared by Patton Boggs when it was still representing the plaintiffs, which contemplated enforcement proceedings around the world. The title of the memorandum is from the Henley poem:

Out of the night that covers me,
Black as the pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.

Beyond this place of wrath and tears
Looms but the Horror of the shade,
And yet the menace of the years
Finds and shall find me unafraid.

It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate:
I am the captain of my soul.

The defendants in the case were Chevron Corp., the ultimate parent, and Chevron Canada Ltd., an indirect Canadian subsidiary. Chevron Corp. was the judgment debtor but had no assets in Canada. Chevron Canada Ltd. had assets in Canada but was not the judgment debtor. The defendants moved to dismiss for want of personal jurisdiction. The Ontario Superior Court denied that motion, but it stayed the case pending a showing that Chevron Corp. itself had assets in Canada that could be reached there. The plaintiffs appealed, and the Ontario Court of Appeals reversed on the question of a stay:

Even before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. He said: “We’re going to fight this until hell freezes over. And then we’ll fight it out on the ice.”

Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction. At this juncture, Ontario is that jurisdiction.

The Supreme Court of Canada affirmed. On the question of jurisdiction, it held that the only question was whether there was a sufficient connection between the judgment debtor and the state that rendered the judgment, not between the judgment debtor and the forum. I opined that “this is the right rule at least in cases where the judgment debtor has some property in the forum state, and maybe even if it doesn’t.” In any event, the Supreme Court’s decision noted that the question of veil-piercing was to be decided on remand.

On remand, the Superior Court granted Chevron Canada’s motion for summary judgment, on the grounds that it was not the judgment debtor and there was no basis to pierce the corporate veil. It denied, mostly, the plaintiffs’ motion to strike Chevron Corp.’s defenses to recognition and enforcement. The plaintiffs again appealed, but they lost in the Ontario Court of Appeal, and now the Supreme Court has refused to hear the case.

The case will now return to the Superior Court. I believe there are two main threshold questions. First, given that we now know the Ecuadoran judgment cannot be enforced in Canada, will the Canadian courts really allow a trial on recognition? This raises very starkly the issue of judgment arbitrage, since the point of the exercise is to take the Ecuadoran judgment that likely cannot be enforced and turn it into a Canadian judgment that (perhaps) can. This is the cutting edge, folks, and I do not know how the court will rule. Second, will the Canadian court give preclusive effect to Judge Kaplan’s findings of fact? In other words, is the American judgment entitled to recognition? If so, then there is no issue for trial. The plaintiffs are promising a trial—time will tell.

What happened to Donziger?

Steven Donziger, the US lawyer who represented the Ecuadoran plaintiffs, has not fared well in all this. In light of Judge Kaplan’s findings of fact, from which he did not appeal and against which he did not mount a post-judgment collateral attack under FRCP 60, the New York courts indefinitely suspended Donziger from the bar, a move which the District of Columbia, the other jurisdiction where he was admitted to practice, followed as a matter of course. Donziger now faces a disbarment hearing, but despite his arguments, the Appellate Division of the New York Supreme Court has held that Judge Kaplan’s findings of fact are entitled to preclusive effect in the bar disciplinary proceeding. The Court of Appeal is deciding whether to allow a further appeal of the preclusion issue, but in my view the Appellate Division’s decision was clearly right, which does not bode well for Donziger.

Donziger is also facing a charge of contempt of court in Judge Kaplan’s court. The court had enjoined him from seeking to profit from the Lago Agrio judgment. Nevertheless, it was clear that Donziger was trying to sell interests in the judgment to investors. He said he was brokering sales of his clients’ interests rather than selling his own interests, and he argued (correctly in my view) that the injunction did not bar sales of his clients’ interests. But Chevron, in its latest filing, claims it can prove that Donziger transferred part of his own interest to David Zelman, whom Chevron describes as Donziger’s “performance coach.” Donziger has also refused to allow a forensic examination of his electronic devices as ordered by the court. Donziger has not yet responded to these latest contempt claims, but he told me that he had previously asked Judge Kaplan to hold him in contempt so that he could get a decision from the Second Circuit on the scope and meaning of the injunction, and that he was seeking to vindicate his “constitutional right to advocacy” in his resistance to turning over his devices. He told me that Zelman “was not an investor” and “provided no funds,” though that of course raises the question of why Donziger transferred interests to him (assuming he did).

Anything else?

There are many, many more nooks and crannies in the case that I could mention. The only one I will mention here is the investment treaty arbitration between Chevron and Ecuador. The arbitral tribunal issued a partial award in Chevron’s favor in September 2018. The most notable points were the tribunal’s acceptance of the evidence of fraud (in particular, the testimony of Judge Guerra) that Judge Kaplan had accepted and that the plaintiffs and Donziger had continued to claim was false, and the tribunal’s rejection of the argument that forensic evidence disproved Chevron’s ghostwriting claim. I do not have information about the current status of the award—has Chevron sought confirmation? Has Ecuador sought to have it set aside? Are the parties discussing a settlement?

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Before diving in to the substance of the petition, it’s worth putting the petition in a procedural context. The substantive relief Donziger seeks is:

1. precautionary measures “limited to a request that the appropriate authorities in New York allow Mr. Donziger to contest the facts of the allegations against him with evidence at a public hearing, consistent with due process,”
2. a declaration that the United States is responsible for violating several of Donziger’s rights under the American Declaration of the Rights and Duties of Man, in particular:
   • Article XXVI, due process of law in criminal matters
   • Article XVII, right to a fair trial
   • Article XVII, right to recognition “as a person having rights and obligations, and to enjoy the basic civil rights,”
   • Article V, right to protection of honor, personal reputation, and private and family life,
   • Article XXIII, right to own property,
   • Article IV, right to freedom of expression, and
   • Article XXI, right of assembly.
3. Appropriate remedies, “including, inter alia, reconsideration, by an impartial tribunal, of the legitimacy of the use of civil RICO procedures in Mr. Donziger’s case and the substance of the underlying claims against him; a public acknowledgment of violation and apology; the taking of appropriate steps to sanction unethical conduct by Chevron, Gibson Dunn, and other entities involved in the presentation of false evidence in the RICO case; the taking of measures sufficient to protect Mr. Donziger’s property and livelihood; the issuance of appropriate compensation for Mr. Donziger; and the establishment of an independent public body to investigate the broader threats posed by the use of civil RICO and other litigation by corporations against human rights defenders.

The United States is, of course, a member of the Organization of American States, and is therefore within the Commission’s jurisdiction. On the other hand, because the United States has not ratified the American Convention on Human Rights, the Commission’s decisions are not binding on the US, but are treated as advisory. So I think it unlikely that Donziger expects the Commission will or could afford him the relief he’s seeking.

Looking at the big picture: the petition is a retelling of the story from Donziger’s point of view, much of which I’ve recounted here before. I want to focus on two noteworthy aspects: first, the emphasis on the great disparity in resources between Chevron and Donziger; and second, the use of Guerra’s testimony in the RICO trial.

Donziger is absolutely right to say that he was outgunned, outspent, and outlawyered in the RICO case. And I think there is an issue here of concern. In a typical mass tort case or class action, the plaintiffs, even if individually impecunious, are not outgunned, because we have a vigorous plaintiffs’ bar that works on a contingent fee basis, with enough capital and staying power to go up against the biggest adversaries. Indeed, in a class action or multi-district litigation, law firms can compete against each other to persuade the court of their fitness to handle the case. But because Donziger was a defendant rather than a plaintiff, there was no incentive for such a firm to represent him, and he lacked the capacity to pay one at ordinary commercial rates (as most anyone would). There was, frankly, a lot of bad lawyering on Donziger’s behalf in the case, but there’s no question in my mind that that was in part a function of Donziger’s inability to hire a big firm to go up against Chevron. On the other hand, suppose that instead of the bringing its claim against the Law Offices of Steven Donziger, Chevron had brought the RICO claim against a major international law firm. Such a firm would have been much better able to defend the case. So I see a real issue having to do with sole practitioners or small-firm practitioners taking on multi-billion dollar litigation when their opponents can in turn bring claims against them personally. But I really am not sure it is a good idea for small-firm practitioners to take on such cases, or at least to take the lead on such cases, in any event. They lack the resources and manpower.

All of that said: is the disparity in resources, even if vast, itself an indication of a human rights violation? That seems very dubious to me. Can someone really say, “I have a human right to prevent someone who is suing me from prosecuting his case as vigorously as he chooses?” In many countries, this problem is dealt with, at least in part, by routine cost-shifting, so that the loser bears the winner’s attorney’s fees. The American Rule requires each party to bear its own costs. But I don’t see that the American Rule is itself a human rights violation. This is particularly so when the underlying case was itself a multi-billion dollar dispute. I don’t see that a lawyer bringing a claim for billions of dollars can justly complain about the legal firepower directed back at him when there are colorable claims of fraud to be litigated.

I’ve already given my views on Judge Guerra—he is not a credible person, and his testimony does not seem worthy of belief, even if what he says happens to be true (if a confirmed liar tells you the truth, you aren’t likely to credit what he says despite its truth). But that said, two tribunals have now heard his testimony in person and accepted it as true, even though they knew that Chevron had paid Guerra’s living expenses. I’m not sure what the claim is here. Is the claim that it was a violation of Donziger’s human rights to allow the testimony to be presented? Is the claim that it was a violation of Donziger’s human rights to credit the testimony? Again, both claims seem dubious to me. All persons are competent to testify, with very, very limited exceptions. The payments go to the weight of the evidence. And if Judge Kaplan was wrong to believe Guerra, then Donziger should have appealed from the findings of fact. Of course, he would have faced a high and probably insurmountable barrier to success: the “clear error” standard of review. But even if there were no issue about exhaustion of remedies, it’s hard to see an erroneous weighing of the evidence as a human rights violation. And much of the rest of what Donziger has to say depends on disbelieving Guerra. For if Donziger really did bribe judges, etc., then it’s hard to see him as the victim of a human rights violation on account of the presentation of Guerra’s evidence, right? (I might point out here that the petition focuses significantly on Guerra without mentioning the other main example of fraud that underlay Judge Kaplan’s judgment, the supposedly-independent-but-in-fact-not-independent-at-all Cabrera report). This is the reason why I have suggested that the New York bar authorities were right to act in the disciplinary proceeding against Donziger without an evidentiary hearing. The facts (or as I said in the prior post, the facts′) had already had been found. The facts′ may or may not be the true facts, but they are what the court has found, and they can’t really be relitigated.

Zooming in on some details: I think the best substantive claim is that Donziger’s advocacy was itself treated as a predicate of the RICO violation. In particular, Donziger’s petition focuses on the use of inflated damages figures, which formed part of Judge Kaplan’s reasoning. On the one hand, courts can of course punish lawyers who make claims that are not “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law,” or who make factual contentions that do not have “evidentiary support.” (E.g., FRCP 11). Rule 11 does not apply in Ecuadoran proceedings: perhaps there is an analog. But regardless, it’s problematic to impose liability on lawyers for making claims that turn out to be wrong, because it is hard to draw the line between the merely erroneous and the wrongful; and because we don’t want to chill marginal claims. Treating overly exuberant advocacy as part of a RICO violation raises these issues even more starkly. I can’t really tell whether Donziger has made out a human rights violation claim here, but his argument has some oomph. Other points, not so much. For example, Donziger argues that the judge denied him a jury, but although he suggests that the case was somehow quasi-criminal, of course it was not a criminal case; and while he correctly quotes the Seventh Amendment to the extent it creates a right to trial by jury “where the value in controversy exceeds twenty dollars,” he fails to mention the part of the Amendment that provides that the right to a jury arises only “in suits at common law,” not in suits in equity. There was no right to a trial by jury on the claims that were tried, and while Donziger complains that Chevron dropped its common-law claims before trial, it’s hard to see that as wrongful rather than procedurally clever. And just because a case arises in equity rather than at law, the court may still award money as part of its judgment, if permitted by equity, as any trustee sued for breach of trust can tell you.

In short: I don’t expect the petition to provide Donziger with meaningful relief, and I suspect Donziger doesn’t either. It is, however, a good restatement of his themes.

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The tribunal, like Judge Kaplan, after hearing Judge Guerra, credited the main points of his testimony. This is particularly striking after the tough cross-examination he faced in the arbitration. The Tribunal recognized that “particular caution” was required in assessing Guerra’s testimony. “In the past, Dr. Guerra has conducted himself with less than probity,” the tribunal wrote, and “there exists still a risk that Dr. Guerra could colour his testimony to favour the Claimants as his benefactors during his exile from Ecuador.” But “having seen and heard him in person subject to vigorous cross-examination,” the tribunal “considers that Dr. Guerra was a witness of truth in his testimony,” and it “relied upon his testimony where it can be corroborated by other evidence, at least in part.”

I really am not sure I would have reached the same conclusion as the arbitrators about Judge Guerra’s testimony. But there are a few points to note. First, the tribunal noted other evidence corroborating Judge Guerra’s testimony on various points. In particular, the tribunal, bearing in mind the time available to him and the size of the record, concluded that it was “inherently unlikely,” though not “absolutely impossible,” that Zambrano could have written the Lago Agrio judgment on his own given the size of the record and the time available to him. Second, the tribunal considered the argument about the Fajardo emails, but it rejected the conclusion I had reached, on the grounds that the emails had recipients who didn’t know about the ghostwriting, and thus that Fajardo would hardly have disclosed the scheme in those emails. Again, I’m not sure how persuasive this is, as it’s pretty clear from the existence of the Crude outtakes and emails using obvious Aesopian language (“the puppeteer,” “the puppet,” etc.) that Donziger’s team didn’t really take serious steps to prevent their words from being used against them. And third, the tribunal considered expert forensic analyses of the relevant hard drives and concluded that the forensic evidence was neither sufficient to show that the judgment was ghostwritten nor sufficient to show that it was not ghostwritten.

But as I wrote at the time of Judge Kaplan’s decision, we put decisions about credibility determinations in the hands of the fact-finder for a reason. I wasn’t in the room and I don’t think I am in a position to say that Judge Kaplan or the arbitrators were wrong. Just to make the point, take a look at this clip of testimony from Judge Kavanaugh before the Senate Judiciary Committee recently, and see if you think you can come to a conclusion, based on his demeanor, whether he’s being truthful.

Now, whatever conclusion you reached, you may be right or you may be wrong, but my point is just that we make judgments like this all the time, and our system of oral testimony by witnesses in the presence of the fact-finder is based on the idea of such judgments. So I think the best I can do is to say, “Based on what I’ve read, I’m not sure I would have decided whether to believe Guerra as these three arbitrators did, but I wasn’t there and I didn’t see the witness, so I can’t be sure.”

I also want to write briefly on the Tribunal’s characterization of Donziger’s actions. The tribunal went to great lengths to explain the steps it took to try to secure Judge Zambrano’s testimony. But while it said it “would have wished to hear” Donziger’s testimony, it said it would have been “pointless” for the tribunal to invite him to testify, because as the “principal defendant in the RICO litigation,” he “clearly had other more pressing personal priorities than assisting this Tribunal as a witness.” I asked Donizger about this: if he had been invited, would he have testified? His answer was equivocal. He told me, “Whether or not I would have testified would have depended on a number of factors, but I should have been invited.”

The tribunal reviewed some of Donziger’s statements about pressuring the judges, and it noted that while there was “no justification for Mr. Donziger’s improper conduct,” perhaps it could be explained by an honest belief “that Chevron was misconducting itself in much the same way towards the Lago Agrio plaintiffs, and to greater effect.” This is my sense, too, from watching the outtakes. The problem is that, as Donziger admitted in his testimony in the RICO case, there was no evidence, aside from the LAPs’ unhappiness with some of the judge’s decisions, that Chevron bribed or pressured the judge.

What comes next? I presume that Chevron will seek confirmation of the award. It would be natural to seek confirmation in the United States, but watch out for a confirmation petition in Ecuador: this might be attractive to Chevron in today’s political climate because an Ecuadoran judgment confirming the award might give the Ecuadoran government a way, if it wants one, to suspend the Lago Agrio judgment’s effectiveness without violating the principle of the independence of the judiciary. I also presume that Ecuador will seek to vacate the award, but it will have to do so in the Netherlands.

For those of you interested in press releases, you can find Chevron’s press release on the new developments here, and the Amazon Defense Coalition’s press release here.

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I suggested previously that perhaps the New York disciplinary authorities should wait for the dust to settle before acting, but that’s not to say that a court shouldn’t apply the ordinary rules of preclusion once the disciplinary body brings the case to the court, and in any case I think that whatever the merits of Donziger’s view on the ghostwriting claim, he has much weaker chances on the other main factual points, for example the issues concerning the supposedly independent Cabrera report.

I like Donziger. I’ve spoken with him many times. He strikes me as someone you’d like to have a beer with, and I think he set out to do something good for the world. But what the last few years have shown very clearly is that he is unwilling to accept that a final judgment really is final.

If I may offer one more observation, I think Donziger’s professional downfall is due in part to conception of the lawyer. Some of the Crude outtakes, and indeed, the fact that Donziger thought bringing a film crew with him to Ecuador was a good idea, suggest to me that for Donziger, the lawyer is a hero. Maybe that works for some people, but in my own experience, which is longer now than I would like to admit, effective lawyers conceive of themselves as careful craftsmen. And effective lawyers tend to succeed no matter the “curb appeal” of their cases by their attention to detail: the facts, the rules of procedure, the rules of evidence, the substantive law. You wouldn’t make a video agonizing about how badly you feel about having to go “tell the judge what time it is” unless you see yourself as the hero of the story. You don’t make an Aaron Sorkin-style speech about how “facts are created” unless you’re the hero.

Yesterday the Ecuadoran Constitutional Court announced its decision rejecting Chevron’s last appeal from the Lago Agrio judgment. So the day was surely bittersweet for Donziger. Donziger has issued a statement promising an appeal, but unless I am missing something, and unless there are new developments, I think the chances of success are low.

Let me just close with a global overview of the Lago Agrio case as far as I understand it:

• In Ecuador, the judgment now seems to be final; but Chevron has no assets in Ecuador to which the plaintiffs can look to satisfy the judgment.
• In Canada, the LAPs have sought leave to appeal to the Supreme Court from an intermediate appellate decision holding that they could not look to the assets of Chevron’s indirect Canadian subsidiary in order to satisfy the judgment against Chevron Corp. Regardless of the outcome, I think it is likely that the LAPs will seek to obtain recognition in Canada of the judgment against Chevron Corp., which will raise all kinds of interesting procedural issues. But if, as I suspect, Chevron Corp. really only has assets in the United States, it is unclear what this will get them, even if they intend a judgment arbitrage strategy.
• In Argentina and Brazil, the courts have, as I understand it, refused recognition of the Ecuadoran judgment.
• In the United States, in addition to the attorney disciplinary proceedings against Donziger, Chevron is seeking discovery in aid of the $800,000 judgment it holds against Donziger, which Donziger has appealed but which is currently enforceable because Donziger has not filed a supersedeas bond. Chevron is also seeking to hold Donziger in contempt of the injunctive aspects of the final judgment, and the court held an evidentiary hearing in late June. I will report on the results. And let me whet your appetite by telling you that I have a couple of Lago Agrio-related FOIA requests pending that will, I hope, lead to some interesting stuff in the future.

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This was dramatic, but has it altered the calculus on appeal? I’ve suggested before that I think the veil-piercing argument was not very strong. But the LAPs tell me that they moved for leave to offer new evidence, specifically, evidence about Chevron and Chevron Canada’s tax arrangements. Apparently Canada taxes oil profits at a more favorable rate than countries such as Nigeria, Indonesia, Ivory Coast and the UK. According to the Guardian: “Chevron used to run its Nigeria and Indonesia projects out of the U.S., but after allegations that they evaded billions in taxes, their operations were moved to Canada.” The LAPs suggest that this new evidence supports their veil-piercing case.

From a procedural perspective, an appeals court in the United States wouldn’t consider this kind of argument. You would have to seek to set aside the judgment in the lower court first, and you would have to have a good reason. The question for the appellate court is whether the lower court erred given the record it had before it; there is no “do-over.” I don’t know whether that’s so in Canada, and I don’t know what reason the LAPs have given for offering the new stuff only now. And leaving aside procedural issues, I’m not sure what the new evidence shows that is helpful to the LAPs. But the LAPs, at least, seem very positive about the new argument. We will have to see whether it has any effect on the ultimate decision.

So after the hearing, what is the overall status of the case in Canada? The court will soon decide the veil-piercing issue. Whoever wins, we can expect an appeal to the Supreme Court of Canada. If the LAPs prevail at that stage, then the case will be remanded. Perhaps there will have to be a trial on veil-piercing, perhaps not. But if there is a remand, there will have to be further proceedings on Chevron’s defenses to recognition of the Ecuadoran judgment. The first question in that case would likely be the preclusive effect, if any, of Judge Kaplan’s findings of fact. If the LAPs can get over that hurdle, then there would be a trial on the merits of the defenses. The LAPs would try to show that the claims of ghostwriting and the Guerra corruption allegations are false—I’ve said before that I think they have a real shot at this. They would also have to show, I think, that there was nothing to the Cabrera fraud. There I think their chances are much weaker. Or else the LAPs would have to show that even if there was fraud in the Ecuadoran court of first instance, it should have been for the Ecuadoran appellate courts to remedy. That argument is persuasive for reasons I’ve given from time to time, but it wasn’t persuasive in New York. So buckle up; we have a ways to go in Canada before it’s all over.

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But it’s worth viewing this development in the context of the original Invictus strategy. The strategy was to put pressure on Chevron by seeking enforcement in several jurisdictions around the world. But how much pressure does it seem Chevron is feeling? Not much. The only proceeding that is still pending is in Canada. The situation there is as follows:

• The lower court granted summary judgment for Chevron on ordinary corporate law grounds. I have opined that the decision seems correct.
• Chevron tried and failed to squelch the LAPs’ appeal by asking the court to require the LAPs to provide nearly $1 million in security against costs to prosecute its appeal. So the appeal will proceed.
• As I’ve said, I don’t think the appeal has very good prospects. But even if the LAPs win the appeal, there would still have to be a trial on whether the judgment is entitled to recognition notwithstanding the Cabrera fraud and what Judge Kaplan found was the Guerra fraud.
• Chevron no doubt would argue that the Kaplan findings are entitled to preclusive effect, but even if it loses that argument, it would still have a trial about the fraud.

The reason I spell all this out is just to say that the LAPs have a lot of hurdles to pass in order to win in the one jurisdiction where their claims are still live. So I don’t think there is a lot of pressure being put on Chevron at the moment. That could change for a few reasons. It could change if Ecuador has a success against Chevron in their treaty arbitration (recall that Ecuador has seemed to do much better than Donziger did at trial seeking to show that the Ecuadoran judgment was not ghostwritten, and if Ecuador is successful, its success could affect the issue of preclusion). It could change if the Ontario appellate court rejects the lower court’s conclusions about corporate separateness. But all of that is speculative at the moment.

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I think the letter is mostly a public relations exercise—Donziger released it publicly, along with a press release, after all. And the letter is similar to another letter to the DOJ dated June 19. But it does have one very interesting bit: Donziger writes that Chevron had taken the position that the Department of Justice had “pre-cleared” the payments to Guerra. He cites one of the ethics opinions Chevron offered to justify the payments, which says:

Chevron and its counsel have … disclosed the proposed arrangement to the United States Department of Justice, which responded to Chevron’s counsel that it is taking no position one way or the other on this proposed arrangement.

I don’t know that this counts as “pre-clearance,” assuming the ethics professor’s account accurately reflects what really happened. But if it is accurate, I think it does reflect the seriousness of the concerns Chevron had about the payments it planned to make. And rightly so. The payments, on their face, far exceeded what would ordinarily be considered the expenses connected with the testimony. But as I’ve also argued, I don’t really see what this gets the LAPs, as the payments were disclosed at the time of the RICO trial, as the judge made findings of fact about Guerra’s testimony, and as the Cabrera fraud was independent of Guerra. In other words, even if you discounted Guerra’s testimony, I don’t see that the outcome of the case changes.

The second odd development: it’s been reported that in 2013, Pablo Fajardo, the LAPs’ lead Ecuadoran lawyer, received payment from the Ecuadoran security service. What could this possibly mean? I have no idea. Perhaps it fits in with what I reported in August 2016 about Fajardo’s betrayal of Donziger to serve the purposes of the Ecuadoran state.

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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.

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