TRIPLE FRAUD ON HOT ICE? Chevron’s RICO Case Spectacularly Implodes as Corrupt Ex-Judge Admits to Making It Up in Exchange for Chevron Payoff. How much fraud at the AER, Council Canadian Academies, University of Waterloo, Alberta Research Council (now Alberta Innovates), Alberta Environment?

“We can’t let little countries screw around with big companies like this.”

Chevron lobbyist in Washington, D.C. quoted anonymously by Michael Isikoff in Newsweek magazine, August 4, 2008.

“We will fight until hell freezes over — and then skate it out on the ice.”

Chevron General Counsel Charles James in a speech in 2008 to law students at the University of California, Berkeley.

‘Yes, I Lied’: Vindicating Villagers, Star Chevron Witness Busted for Perjury
‘Chevron has taken the people of Ecuador and the U.S. court system on a ride, full of lies, deliberate delay, and obstruction of justice,’ says Amazon Watch by Deirdre Fulton, October 27, 2015, Common Dreams

“This is vindication for the Ecuadorians…and we now hope Chevron will finally do the right thing and clean up their toxic mess.”

In what is being called “a dramatic turn” in a protracted legal battle, documents publicized Monday reveal that the star witness in a case pitting rainforest villagers against a multinational oil giant has admitted to lying under oath in an effort to help Chevron avoid paying a $9.5 billion judgment for deliberate pollution of the Ecuadorian Amazon.

“Yes sir, I lied there…I wasn’t being truthful,” ex-judge Alberto Guerra reportedly told an international arbitration tribunal earlier this year when asked about his claim that the plaintiffs’ legal team offered him a $300,000 bribe to ghostwrite the ruling in their favor.

Guerra’s claim, VICE News explains, provided the underpinnings for New York federal judge Lewis Kaplan’s 2014 ruling that the $9.5 billion verdict was obtained by way of fraud and coercion—a victory for Chevron, which had refused to abide by the judgement.

In fact, transcripts (pdf) of the 2014 tribunal proceedings made public on Mondayobtained through a Freedom of Information Act request by Courthouse News with support from the Reporters Committee for Freedom of the Press—shine new light on the extent of Chevron’s payments to Guerra for his false testimony, some $12,000 per month plus other perks which included a car, healthcare, and relocating him and his family to the United States.

“Chevron has now been busted by the lying testimony of its main witness,” the plaintiffs’ lawyer, Steven Donziger, told VICE. “The latest iteration of Guerra’s testimony proves clearly that Chevron paid its star witness huge sums of money to present false evidence to frame the very people in Ecuador the company poisoned.”

Amazon Watch, which campaigns to hold Chevron accountable for its toxic legacy in Ecuador, described the development as “a dramatic turn in the 22-year-old legal effort by Ecuadorian rainforest villagers to hold Chevron Corporation to account for massive on-going environmental contamination in the Amazon.”

In a blog post on Monday, the non-profit’s director of outreach and online strategy, Paul Paz y Miño, wrote:

Back in 2009, someone at Chevron was probably jumping up and down exclaiming “slam dunk”. The company had found a key witness they could buy who was willing to say what they needed to pull together their fabricated fraud story in Ecuador. How did they “find” him? Easy, he came to Chevron asking for a bribe to help Chevron get out of its massive legal problems in Ecuador. That should have been a red flag, but fueled by their own arrogance and legal hubris Chevron moved forward with Guerra as their star witness. It turns out that rather than a Bond-esque spy thriller with intrigue and a sophisticated plot, the story for Chevron is more like “Harold and Kumar go to White Castle”.

Alberto Guerra, who we explained before is a corrupt ex-judge, claimed that the legal team for the Ecuadorians offered him a bribe to ghostwrite the judgment against Chevron. Guerra said he asked Chevron for a bribe first, and they turned him down, so then he went to the Ecuadorians. Despite the fact that Guerra was acknowledged by judge Kaplan himself to be less than credible, his testimony was allowed to stand (this is the same court that forbade evidence of actual contamination). The argument was that Guerra’s testimony fit the “circumstantial evidence” against the Ecuadorian legal team. Except that evidence has also evaporated.

“This proves what we knew all along—that Chevron’s RICO trial is a farce,” Paz y Miño added in a press statement. “Guerra has so thoroughly perjured himself he should be behind bars. And so should Chevron management. Chevron has taken the people of Ecuador and the U.S. court system on a ride, full of lies, deliberate delay, and obstruction of justice. This is vindication for the Ecuadorians and counsel Steven Donziger and we now hope Chevron will finally do the right thing and clean up their toxic mess.”

Donziger himself, who still works for the villagers, added that Guerra’s latest testimony “demonstrates once and for all that Chevron’s so-called racketeering case has completely fallen apart.”

“Guerra has been the linchpin of Chevron’s entire body of trumped up evidence,” he said, “and he now stands not only as an admitted liar, but also as a shocking symbol of how Chevron’s management has become so obsessed with evading its legal obligations in Ecuador that it is willing to risk presenting false evidence in court to try to frame adversary counsel and undermine the rule of law.”

Amazon Watch is now calling for Chevron and its lawyers to be investigated and brought up on charges. “They have intimidated judges in Ecuador, bribed others, falsified evidence, and coached Guerra to submit false testimony in U.S. Federal Court and made a complete mockery of the our judicial system,” Paz y Miño wrote.

“Chevron’s polluted house of cards has come crashing down around them,” he said. [Emphasis added]

Game Over: Chevron’s RICO Case Spectacularly Implodes as Corrupt Ex-Judge Admits to Making It Up in Exchange for Chevron Payoff by Paul Paz y Miño, October 27, 2015, Huffingtonpost
Faced with a likely multi-billion dollar verdict against it for deliberate pollution of the Ecuadorian Amazon, in 2010 Chevron began fabricating an elaborate story of bribery, corruption and ghostwriting to strike back. It claimed everyone and everything against it was part of a scheme – the evidence, the contamination, the Ecuadorian villagers, all the environmental and human rights organizations – everyone. The company spent millions to concoct its cover story. There was only one big problem: it all hinges upon the testimony of a completely non-credible witness who has now admitted on the stand that he lied about it in exchange for payments from Chevron.

Back in 2009, someone at Chevron was probably jumping up and down exclaiming “slam dunk.” The company had found a key witness they could buy [Like how Encana/Alberta Environment/Alberta government/AER bought Dr. Alexander Blyth to commit fraud and blame nature on the dangerous methane, ethane, and heavier hydrocarbon contamination in drinking water that even the US EPA now admits was caused by the oil and gas industry fracing Rosebud’s drinking water aquifers ?] who was willing to say what they needed to pull together their fabricated fraud story in Ecuador.

How did they “find” him? Easy, he came to Chevron asking for a bribe to help Chevron get out of its massive legal problems in Ecuador. That should have been a red flag, but fueled by their own arrogance and legal hubris Chevron moved forward with Guerra as their star witness. [Will the same take down the fraudulent, defamatory “Best in Class” AER at the Supreme Court of Canada in 2016?] It turns out that rather than a Bond-esque spy thriller with intrigue and a sophisticated plot, the story for Chevron is more like “Harold and Kumar go to White Castle.”

Alberto Guerra, who we explained before is a corrupt ex-judge, claimed that the legal team for the Ecuadorians offered him a bribe to ghostwrite the judgment against Chevron. Guerra said he asked Chevron for a bribe first, and they turned him down, so then he went to the Ecuadorians. Despite the fact that Guerra was acknowledged by judge Kaplan himself to be less than credible, his testimony was allowed to stand (this is the same court that forbade evidence of actual contamination). The argument was that Guerra’s testimony fit the “circumstantial evidence” against the Ecuadorian legal team. Except that evidence has also evaporated.

The sweetest irony is how this has all come about. Chevron brought a separate case to the Hague under a bilateral trade agreement between the US and Ecuador. In obvious forum shopping (which has been called out by the Second Circuit Court of Appeals) they were hoping to pin their financial liability on the Ecuadorian tax payer. Only their entire effort is backfiring – like when that body recently denied Chevron’s claim that an agreement with the government of Ecuador released them from civil liability. Much like the actual evidence it presented in Ecuador, Chevron is hanging itself with the very action it hoped to use to escape justice.

Guerra claimed that the bribe of $300,000 he was offered (at one point he also said it was $500,000) was to work with the presiding judge Zambrano to ghostwrite the judgment. When asked about it before the Hague Tribunal he said: “Yes sir, I lied there…I wasn’t being truthful.” Zambrano has denied this from the beginning and ALL the forensic evidence backs it up. You see, also as part of Chevron’s Hague action, the government of Ecuador hired the world’s top computer forensic analyst to review the document. As Courthouse News reported today:

“…forensic expert Christopher Racich testified that he found a running draft of the judgment against Chevron on Zambrano’s hard drives. Ecuador now argues that this forensic evidence – which Courthouse News reported exclusively early this year – proves Zambrano painstakingly wrote the ruling and saved it hundreds of times throughout the case. Chevron has not been able to produce emails between Guerra, Zambrano and the purported ghostwriters, Donziger and Fajardo, Ecuador’s forensic expert says.”

The seemingly never ending stream of Guerra lies doesn’t stop there. At first Guerra said that he had thumb drives with the judgment on it to prove his claim. Then later he admitted that he didn’t. Then he said he has calendar entries of his meetings with the Ecuadorian legal team. Then he admitted that he didn’t. Guerra also claimed he had agreed with Zambrano to cut him in for 20%. Now he admits that too was a lie. Chevron claims evidence of meetings with Guerra and Zambrano backs up their claims, but no, Guerra now says no meetings he ever had with Zambrano had anything to do with Chevron. Oops.

Indeed there IS evidence of a bribe – Chevron bribed Guerra to make up this story. And unlike the lie about ghostwriting, there’s actual evidence to back this bribe up. Guerra, a man with less than $200 in his bank account at the time, admits that he said all these things to get more money out of Chevron. He and his entire family now live in a house Chevron bought for him, drives a car they gave him and live on $12,000 per month from the oil giant. How’s that for evidence?

At this point, I’m sure you are asking yourself: How on Earth did Chevron get this witness on the stand in a NY Federal Court in the first place, and what did they think would happen once his true story came out? (The Ecuadorians tried to save Judge Kaplan from the embarrassment.) Well, they were certainly worried about how Guerra would do – which is why they coached him for 53 straight days before his testimony. It clearly wasn’t enough.

Chevron’s polluted house of cards has come crashing down around them. Guerra is a liar – and he freely admits it. Chevron can either double down and insist Guerra was “before it before he was against it” or denounce him now – in which case they can never argue he’s credible by any stretch.

There’s a LOT of provably unethical and illegal behavior here – all of it from Chevron’s camp.

What should happen now:

The Federal Appeals Court should completely throw out Kaplan’s verdict. It depends entirely on Guerra’s false testimony and the judgement against Chevron has been colclusively proven to be legitimately written by Zambrano (as the Ecuadorian appeals court had already determined).

Chevron and their lawyers should be investigated and brought up on charges. They have intimidated judges in Ecuador, bribed others, falsified evidence, and coached Guerra to submit false testimony in US Federal Court and made a complete mockery of the our judicial system (not to mention the mis-use of a trade agreement to go after the government of Ecuador).

Amazon Watch will be calling for such an investigation. We know Chevron is never likely to admit they lied and schemed to create this false RICO attack. Nor will they stop trying to attack us and our funders. They need to be held to account.

We look forward to the day they try to peddle this preposterous RICO verdict in Canada. Perhaps we will all get a chance to see Guerra take the stand once again. If so, it can only get worse for Chevron. [Emphasis added]

Chevron’s Star Witness in Retaliatory RICO Case Recants Accusations Against Ecuadorians and Their Counsel, Newly released transcripts reveal stunning admission under oath, leave Chevron case in shambles as communities move closer to seizing company assets in Canada
Press Release by: Amazon Watch, October 27, 2015, CSRwire

QUITO, Ecuador , Oct. 27 /CSRwire/ – In a dramatic turn in the 22 year-old legal effort by Ecuadorian rainforest villagers to hold Chevron Corporation (NYSE: CVX) to account for massive on-going environmental contamination in the Amazon, the key witness in Chevron’s counter-suit has admitted under oath to making up accusations of bribery and ghostwriting.

As reported by VICE News and Courthouse News, transcripts released today in the parallel legal dispute between Chevron and the Ecuadorian government before an arbitration tribunal reveal that Alberto Guerra, a disgraced ex-judge who became the lynchpin of Chevron’s RICO suit against Ecuadorians and their legal team as a means to avoid paying the $9.5 billion judgment, admits, “Yes sir, I lied there…I wasn’t being truthful,” when asked about his accusation that plaintiffs’ legal team offered him a $300,000 bribe to rule in their favor.

The transcripts also discuss forensic evidence which disprove Guerra’s prior claim that the plaintiffs ghostwrote the final judgment against Chevron. He admitted as much on the witness stand, testifying that he knowingly introduced false and misleading evidence at the RICO trial and that the company offered him more money if he could produce evidence or copies of a ‘ghostwritten’ draft judgment. He could not. “We were unable to find the main document,” Guerra recalled Chevron saying. “Had we been able to find it, we would have been able to offer you a larger amount. Something like that, we have $18,000 for you.”

“This proves what we knew all along – that Chevron’s RICO trial is a farce,” said Paul Paz y Miño, Director of Outreach and Online Strategy at Amazon Watch. “Guerra has so thoroughly perjured himself he should be behind bars. And so should Chevron management. Chevron has taken the people of Ecuador and the U.S. court system on a ride, full of lies, deliberate delay, and obstruction of justice. [Like Encana lying in their Statement of Defence saying the company didn’t frac their gas wells at Rosebud even though their own data says they did?] This is vindication for the Ecuadorians and counsel Steven Donziger and we now hope Chevron will finally do the right thing and clean up their toxic mess,” continued Paz y Miño.

Guerra’s testimony shines new light on the extent of Chevron’s payments to him for his false testimony, some $12,000 per month plus other perks which included a car, health care, and relocating him and his family to the United States.. “We’re talking about $144,000 for 2013,” admits Guerra. Additionally, Guerra admits there was no intervention by the Ecuadorian government, and in fact, it was Chevron who sought to obstruct justice and corrupt the process. The only time the government tried to insert itself into the private litigation was in Chevron’s favor, when, in 2003, the company sought to have the case thrown out after it was sent to Ecuador by a New York trial judge at Chevron’s request.

The case was originally filed in 1993 in New York against Texaco for spilling some 18 million gallons of crude, 18 billion gallons of toxic wastewater, and leaving behind 1,000 toxic waste pits, creating a health crisis for indigenous and farmer communities who live within the company’s one million hectare rainforest oil concession. After merging with Chevron, the case was sent to Ecuador after the company provided extensive evidence of the independence and transparency of the Ecuadorian judiciary. After a ten-year trial and hundreds of thousands of soil and water samples that proved on-going contamination from the company’s former sites – even well sites the company claims to have cleaned up – Chevron was found guilty and ordered to pay $9.5 billion for environmental remediation, health care, and clean water to indigenous and farmer communities who have long suffered from the company’s drill and dump practices between 1964 and 1991.

The verdict was upheld by three layers of Ecuadorian courts – including the country’s Supreme Court, yet Chevron has refused to abide by the judgment, instead stripping its assets from the country and forcing rainforest residents to pursue the company in other jurisdictions around the world.

In its efforts to avoid paying and further delay the already decades-long struggle for justice, Chevron filed a countersuit using the RICO statute in New York courts, claiming the Ecuadorians and legal team bribed the Ecuadorian judge and ‘ghostwrote’ the judgment for him. Simultaneously, Chevron also filed an arbitration suit against the Ecuadorian government, hedging its bets in case it lost the original Aguinda v. Chevron case, and hoping to force the government to pay for any clean up if the company were found liable. The arbitration trial is now coming back to haunt Chevron as evidence continues to surface undermining the company’s arguments and witnesses in the RICO case.

In a statement by Steven Donziger – the focus of Chevron’s attacks in the RICO case and target of Guerra’s main accusations of offering a bribe to ghostwrite the final judgment against Chevron, he explains, “The latest iteration of Guerra’s testimony proves clearly that Chevron paid its star witness huge sums of money to present false evidence to frame the very people in Ecuador the company poisoned. The disclosure of the latest corrupt and falsified witness testimony from Guerra demonstrates once and for all that Chevron’s so-called racketeering case has completely fallen apart and that CEO John Watson needs to be held personally accountable for the legal violations involved.” Donziger recently informed Chevron to retain and not destroy documents, alluding to a possible future suit against the company and its lawyers for malicious prosecution, fraud, and corruption.

The Guerra revelations are the tip of the iceberg of a pattern of fraud committed by Chevron in the case. Secret, internal Chevron videos released by Amazon Watch show Chevron contractors attempting to undermine the trial in Ecuador by only searching for clean soil samples of contaminated areas – a task that proved difficult given the extent of the contamination. [Like Alberta Environment and Encana not appropriately purging water wells being tested under investigation and for after aquifer frac’ing “baseline” testing?]

Past drilling operations were also replete with deceitful practices. The 327 well sites were designed to pollute, hiding undisclosed waste pits and dumping billions of gallons of toxic waste upstream from where indigenous and farmer communities bathe, fish, and drink. A sham “clean-up” was little more than covering waste pits with dirt. Transcripts released last week and reported by VICE show that the tribunal conducted four site visits to contaminated sites-some of which were allegedly cleaned up by Chevron-but new tests show they are still toxic.

“The revelations from the arbitration tribunal on Guerra’s testimony and site visits by the panel are likely to loom large as the Second Circuit reviews the RICO case, and Canada’s Supreme Court unanimously agreed to allow Ecuadorian communities the right to seek company assets as a way of enforcing the $9.5 billion owed to them. We expect based on these new revelations that completely undermine the foundation of Chevron’s RICO case, the U.S. federal appeals court must be considering throwing it out in its entirety,” said Paul Paz y Miño of Amazon Watch. “The way that Chevron has conducted itself in this trial is exactly how the company operated in Ecuador’s Amazon: corrupt, with disdain for the local communities who, because of the company’s delays, have been denied the justice they deserve for so long,” [Emphasis added]

Ecuadorean Judge Backflips on Explosive Testimony for Chevron by Adam Klasfeld, October 26, 2015
(CN) – During secret proceedings in Washington, a key witness in undermining the $9.5 billion judgment Chevron faces in Ecuador repudiated much of his explosive testimony, transcripts made public today show.

Since agreeing to testify for the oil giant, Judge Alberto Guerra’s fortunes have changed, and so have Chevron’s.

Roughly two years ago, Guerra took to the witness stand in a New York federal courtroom and swore that lawyers for rainforest villagers bribed him to ghostwrite a multibillion-dollar Ecuadorean court judgment against Chevron for oil contamination to the Amazon jungle.
About a year before he made a deal with Chevron, Guerra had little more than $100 to his name. He also owed tens of thousands of dollars in debt and could not afford to visit his children living in the United States.

U.S. District Judge Lewis Kaplan had warned early on in proceedings that he did not “assume that anyone’s hands in this are clean,” yet he credited Guerra’s testimony last year in ruling that the Ecuadoreans obtained their award “by corrupt means.”

The Ecuadoreans have long attacked Guerra, who has a contract with Chevron for various perks, including at least $326,000, an immigration attorney and a car, as a “paid-for” participant in the oil giant’s self-styled witness-protection program.

Kaplan’s decision conceded that “Guerra’s credibility is not impeccable,” but found that his account was “corroborated extensively by independent evidence.”

Both that credibility and the corroborating evidence came under withering attack this year during closed-door proceedings before an international arbitration tribunal.

Though the hearings took place without press or public access at the World Bank in Washington on April 23 and 24, the tribunal agreed to release transcripts of the proceedings in response to a Courthouse News request that the Reporters Committee for Freedom of the Press supported.

Courthouse News obtained advanced copies of more than 3,000 pages of transcripts, which were formally released on Monday.

They show Guerra putting a new twist on an old saying. “Money talks, gold screams,” Guerra said in a June 25, 2012, meeting with Chevron representatives – a meeting Chevron recorded.

Testifying about this comment at the arbitration hearing, Guerra said Chevron showed him a safe filled with money. He recounted Chevron’s representatives telling him: “Look, look, look what’s down there. We have $20,000 there.”

He remembered replying: “Oh, OK, very well, very well.”

Guerra said he had only $146 in his bank account a year earlier, and owed tens of thousands more to finish the construction of his house. He said he could not scrape money for airfare to visit his children in the United States.

Minutes from Guerra’s meeting with Chevron that came to light during the tribunal proceedings showed that Chevron’s lawyers hoped to find evidence that the Ecuadorean government had pressured the Guerra to rule against the company.

Guerra disappointed by saying that Ecuadorean President Rafael Correa’s administration “never butted in” to the process, the transcript shows.

“These guys are idiots, but the truth, the truth, I attest, damn, they never got involved,” Guerra added, referring to Correa’s government.

The remark appears to undercut the foundation of Chevron’s arbitration case, which asks the tribunal to blame the Ecuadorean government for a miscarriage of justice.

Guerra stood by those comments on the arbitration panel’s witness stand.

“My position is that the government did not intervene,” Guerra said.

The only time an Ecuadorean government official tried to elbow into the case, Guerra testified, was under a prior administration. Correa’s predecessors pushed to dismiss the case in Chevron’s favor in 2003, he said.

Guerra also acknowledged bluntly on the witness stand that he had lied in telling Chevron’s team that attorneys for the Ecuadoreans offered him $300,000.

“Yes, sir, I lied there,” Guerra told Eric Bloom, who represents Ecuador for the firm Winston & Strawn. “I wasn’t truthful.”

Guerra maintains that other attorneys for the Ecuadoreans, specifically Steven Donziger and Pablo Fajardo, offered money in return for ghostwriting the judgment on behalf of Judge Nicolas Zambrano, the final jurist to preside over the case. Shifting the details of this supposed arrangement, though, Guerra walked back his allegation that Zambrano offered him 20 percent.

“That was my sworn statement in New York, but what I said is that, because of a circumstance, because of a situation, I mentioned 20 percent when it wasn’t true, and I think that, as a gentleman, I should say the truth, and we did not discuss – I did not discuss 20 percent with Mr. Zambrano – but we did discuss that he would share with me from what he received,” he said.

In his nearly 500-page ruling, Judge Kaplan pointed to bank records, daily planners, shipping records and airplane tickets as corroborating evidence that outweighed Guerra’s credibility problems.

Particularly persuasive for Kaplan was evidence that Ecuador’s national airline, Tame, certified delivery of packages between Guerra and Zambrano.
Guerra told the arbitrators this spring, however, that all 11 of these packages “had nothing to do with the [Chevron] case.”

As for his plane tickets to the rainforest from Aug. 11 and 12, 2010, Guerra said they occurred during an irrelevant time period.

“If I traveled during those dates, it wasn’t for me to provide assistance to the Chevron case,” he said.

Guerra testified that Chevron representatives told him that they would have raised his pay if he could provide them with the key physical evidence they were looking for: a draft of the judgment.

“We were unable to find the main document,” Guerra recalled them saying. “Had we been able to find it, we would have been able to offer you a larger amount, something like that, we have $18,000 for you, and we’re going to take the computer with us.”

Though Guerra did not have a copy of the judgment, Ecuador’s forensic expert Christopher Racich testified that he found a running draft of the judgment against Chevron on Zambrano’s hard drives.

Ecuador now argues that this forensic evidence – which Courthouse News reported exclusively early this year – proves Zambrano painstakingly wrote the ruling and saved it hundreds of times throughout the case.

Chevron has not been able to produce emails between Guerra, Zambrano and the purported ghostwriters, Donziger and Fajardo, Ecuador’s forensic expert says.

Guerra acknowledged to the arbitrators that that the bounty of physical evidence he promised Chevron fell short. There are no calendars and day planners marked with meetings scheduled between Fajardo, Donziger or Guerra, he acknowledged. While Guerra said he had payments from Zambrano from April 2011 and February 2012, he testified that these “had no connection to the Chevron case.”

For Chevron, the thousands of pages of transcripts show that the company “proved its case before the International Arbitration Tribunal.”

“Witness and expert testimony confirmed that the Ecuadorean judgment against Chevron was ghostwritten by Steven Donziger and his team and that the Ecuadorian government is responsible for any further remediation,” Chevron spokesman Morgan Crinklaw said in a statement. “Chevron also proved that Ecuador breached the U.S.-Ecuador Bilateral Investment Treaty and international law.”

Donziger, who still works for the Ecuadorean villagers seeking to collect from Chevron, said in a statement that Guerra’s latest testimony “demonstrates once and for all that Chevron’s so-called racketeering case has completely fallen apart.”

“Guerra has been the linchpin of Chevron’s entire body of trumped up evidence and he now stands not only as an admitted liar, but also as a shocking symbol of how Chevron’s management has become so obsessed with evading its legal obligations in Ecuador that it is willing to risk presenting false evidence in court to try to frame adversary counsel and undermine the rule of law,” Donziger added. [Emphasis added]

John Collier Devil skating on ice when hell freezes over

The Devil Skating When Hell Freezes Over

by John Collier

Ecuador Villagers Ask Canada Court to Speed Up Action Seizing Chevron Assets as Pollution Battle Heats Up Press Release by Union of People Affected by Texaco (UDAPT), October 22, 2015, CSRwire

TORONTO, Oct. 22 /CSRwire/ – Empowered by a new favorable Supreme Court decision, indigenous villagers from Ecuador’s Amazon rainforest have filed legal papers asking a Canadian trial court to accelerate an action to seize assets from Chevron to satisfy their $9.5 billion environmental judgment.

The latest document, filed in Ontario by lawyers for the villagers and available here, blasts Chevron for trying to use the Canadian proceeding to re-litigate legal and factual issues already repeatedly decided against the company by courts in Ecuador and the United States.  Chevron has vowed to fight the villagers — who filed their initial claims over Chevron’s pollution 22 years ago — “until hell freezes over” and beyond.

“All of Chevron Corp.’s defenses fail” in the enforcement action because “the issues that Chevron Corp. seeks to re-litigate have been determined against it by the courts of Ecuador,” asserted the filing, made by Canadian litigator Alan Lenczner of the law firm Lenczner Slaght in Toronto. “No aspect of the merits of the case, whether factual or legal, can be tried or raised in Canada,” the filing added.

The latest filing sets up a major showdown in Canada over the scope of the enforcement proceeding, which began in 2012 and was delayed for three years while Chevron appealed an early decision granting jurisdiction to the villagers.  In early September, Canada’s Supreme Court ruled unanimously that the villagers could proceed to try to collect assets in Canada against both Chevron and its Canadian subsidiary, Chevron Canada. (For background on the winning appellate court decision, see here.)

In 2013, Ecuador’s Supreme Court unanimously affirmed a judgment finding Chevron had deliberately dumped billions of gallons of toxic waste into the rainforest, decimating indigenous groups and causing an outbreak of cancer. For background on the humanitarian crisis caused by the dumping, see this summary of cancer rates and this photo essay of the company’s victims.

Argument in Canada on the preliminary motion of the villagers to knock out Chevron’s defenses and accelerate the enforcement proceeding will be held in early March. If the villagers win that motion, Chevron’s strategy of “perpetual litigation” will be dealt a severe blow and the proceeding could move quickly to a debt collection phase where the company’s assets will be directly in play.

Even if the villagers do not win the preliminary motion, the enforcement action by its very nature will avoid re-litigating the merits of the environmental case and questions of Ecuadorian law, although the process will take longer, said Aaron Page, a U.S. legal advisor to the Ecuadorians.

The goal of the villagers in Canada is to get their judgment recognized so it will be treated as “domesticated” under Canadian law, he added.  Such a ruling would enable the villagers to seize Chevron’s assets in any province in Canada.  It also would facilitate potential debt collection by the villagers in other countries that have reciprocal judgment enforcement agreements with Canada. 

Chevron owns a large crude oil refinery in British Columbia, a large interest in a tar sands project in Alberta, another interest in an offshore oil field off the coast of Newfoundland, various leases in the Northwest Territories, and a network of gasoline stations under the Chevron brand.  All told, Chevron has an estimated $15 billion in assets in Canada that kick off roughly $3 billion annually in profits for company shareholders.

The oil giant refuses to pay the Ecuador judgment despite having accepted jurisdiction there in 2001 as a condition of shifting the litigation from New York to the South American nation.  Because interest runs on the judgment, the amount that could be seized is just north of $10 billion and is rising steadily, said Luis Yanza, a rainforest leader and Goldman Prize winner who works with the dozens of Amazon communities that have sued Chevron for damages.

“We again urge Chevron to stop the gamesmanship and comply with its legal obligations to the very people of Ecuador that it exploited mercilessly for decades by dumping toxic waste onto their ancestral lands,” said Yanza.

“Chevron is a deadbeat debtor to the people of Ecuador and should be treated as such by the court system of Canada,” he added.

In its most recent filing in Canada, Chevron’s lawyers raised factual defenses already decided against it by three layers of courts in Ecuador, including in unanimous decisions by an intermediate appellate court and the country’s Supreme Court.  The latter decision, which meticulously documented the extensive evidence of contamination at hundreds of former Chevron well sites, can be read here.

The Ecuadorian villagers have been gaining momentum recently in the long-running litigation, which began in 1993 when the original pollution claims were filed in New York.  Chevron moved the case to Ecuador in 2001 after filing numerous expert affidavits praising the country’s court system. At the time, Chevron had never been held liable in a court in Ecuador for even one dollar of environmental damages even though the contamination caused (under the Texaco brand) had been visible and widespread for decades.

In all, eight separate appellate judges in Ecuador affirmed the underlying judgment against Chevron.  Separately, all 10 appellate judges in Canada to hear Chevron’s arguments to block the enforcement proceeding have ruled for the villagers.  In addition, the villagers in 2012 won an important 3-0 appeals court decision in New York nullifying an illegal injunction sought by Chevron purporting to block enforcement of the Ecuador judgment anywhere in the world.

In its defense in Canada, Chevron claims that the Ecuadorian courts had no jurisdiction over it, but that issue was decided against the company in unanimous decisions by Ecuador’s Supreme Court and by a U.S. federal appellate court.  The company also claims it is not liable for pollution caused in Ecuador by Texaco, but that issue also was decided against the company in both the U.S. and Ecuador given that Chevron and Texaco merged in 2001.

Chevron also claims the findings of U.S. Judge Louis A. Kaplan in its retaliatory “racketeering” case in 2013 (where the company alleged the Ecuador litigation was a “sham”) should be adopted by Canada’s courts, even though the judge had no jurisdiction and refused to admit any evidence of the company’s pollution. Judge Kaplan’s flawed findings have no relevance to the Canadian action, according to the filing of the villagers. (For background on the Kaplan decision, see here.)

Chevron is also trying to use the legal defense of “corporate separateness” to claim the assets of its wholly-owned Canadian subsidiary should be immune from seizure.  The villagers point out in their latest filing that Chevron Corp. completely controls its subsidiary in Canada, and that shell entities cannot be used to avoid the collection of a valid debt. 

In any event, Canada’s Supreme Court in its recent decision rejected Chevron’s claim that “corporate separateness” should block the enforcement action from commencing.

The villagers have charged that Chevron for years has engaged in abusive litigation tactics and played a jurisdictional shell game to evade the Ecuador court judgment. Several years ago, with the evidence against it mounting, Chevron General Counsel Charles James said openly the company would fight the villagers “until hell freezes over” and then “fight it out on the ice” if necessary.  Internal Chevron emails describe efforts to “demonize” adversary counsel.

Background on Chevron’s forum shopping and shifting arguments can be found here and here.

The Canadian action also comes after a private investor arbitration panel overseeing a related dispute between Chevron and Ecuador’s government nullified Chevron’s main defense that a government release barred the claims of the villagers.  That defense has been rejected now by the courts of three countries, although Chevron is trying to use it again to block the enforcement proceeding in Canada.

Outside the courtroom, Chevron has fared no better.  It recently won a Public Eye lifetime achievement award for being the worst corporation on the planet as a result of its horrendous environment record in Ecuador and elsewhere. [Emphasis added]

Hague Tribunal Paid Secret Visits to Amazon Oil Pits by Adam Klasfeld, October 20, 2015, Courthouse News
(CN) – As the Amazon rainforest transitioned to its dry season, three international arbitrators investigating how Ecuadorean courts handled multibillion-dollar environmental litigation against Chevron sojourned into the oil-contaminated jungle.

The three-day journey took place between June 7 and 9, joined by lawyers and scientists retained by Chevron and the Ecuadorean government. Though organized in secret, a Courthouse News request led the arbitration panel to produce transcripts of its hearings.

Through torrential rain and tropical heat, representatives of Ecuador led the group to residential farmlands where villagers grow corn, papaya, cacao and other produce – sprouting up either from or near pools of petroleum – all documented in the transcripts.

The sessions were recorded on video, but no visual records of the proceedings have been publicly released. A scientific firm retained by Ecuador submitted a 136-page document to the tribunal, however, containing photographs of how the same sites looked years ago.

To say the least, these were unusual proceedings of the Permanent Court of Arbitration, which is based in the far more temperate city of The Hague, in the Netherlands.

A transcript of a June 9 presentation, at a well site in Lago Agrio, has the words “rooster crows” in parentheses to note an interruption during both the opening argument delivered by Chevron’s attorney and the closing argument by Ecuador’s.

The environs also forced the leader of the tribunal, V.V. Veeder, to improvise court procedures on occasion.

Responding to objections by the parties, Veeder quipped at one point that the panel “will go to our retiring room in the jungle and come back.”

Veeder and his colleagues have convened to decide whether Ecuador’s judiciary denied justice to Chevron by saddling the oil giant with $9.5 billion in liability.

Three levels of Ecuador’s courts have upheld the decision, but a federal judge in New York found that the judgment was “procured by corrupt means.” That U.S. ruling is under appeal at the Second Circuit.

Chevron initiated both the U.S. proceedings and the international arbitration proceedings, the latter of which seek to have the government of Ecuador cover the $9.5 billion verdict its judiciary is holding over Chevron.

While the New York court shut out all of the environmental evidence, the international tribunal is probing both Chevron’s fraud allegations and the underlying pollution. Planning for the rainforest occurred during closed-door hearings for the evidence-collection phase that the panel conducted between April and May.
Veeder is quoted in the transcript as saying that the D.C. hearings concluded the evidence-collection phase of trial.

“The evidence is in, and we’re here to understand that evidence,” Veeder said.

On the first day of the rainforest hearing, at an oilfield called Shushufindi-34, Ecuador’s attorney general Diego Garcia Carrion emphasized why his country pushed for the visit to happen, over Chevron’s objections. [Why object?  Chevron called for the arbitration!]

Carrion called the inspections “critical part of the arbitration and, for Ecuador, an essential element of our case.”

“The republic of Ecuador considers this visit to be of great value to the tribunal, and for that, has insisted on it,” he said. “Now you will be able to see firsthand the contamination and so conclude that the judgment is reasonable and juridically possible.”

Chevron does not deny that drilling in the Amazon by its subsidiary Texaco left pools of petroleum dotting the rainforest that still lay there today. But the company maintains that its 1995 agreement known as the Remedial Action Plan left the responsibility for the cleanup with other parties, primarily the state-run company Petroecuador.

“The environmental issues that have been raised by Ecuador are no defense to the claim that we have presented before you under international law,” Chevron’s attorney Doak Bishop, of the Atlanta, Ga.-based arbitration firm King & Spalding, said in his June 7 opening remarks.

Bishop said that the primary question about the pollution is: “Whose responsibility is it?”
Chevron spokesman Morgan Crinklaw echoed these points in reaction to the release of the transcripts to Courthouse News.

“These transcripts, along with the extensive evidence submitted in Chevron’s arbitration against the Republic of Ecuador, reinforce the fact that Texaco fully remediated its share of sites before exiting the country 23 years ago,” Crinklaw said in an email. “Any remaining environmental remediation is the responsibility of the Ecuadoran government and the state-owned oil company, Petroecuador.”

To address this argument, Ecuador’s lawyers and scientists said that three of the four sites that they selected for the arbitration panel’s visit were areas where Texaco exclusively operated, and that these were not a part of this agreement. Shushufindi-34 is the first of these, named after the region’s northeastern canton bordering Colombia.

The Louis Berger Group, a top U.S. AID-recipient environmental firm retained by Ecuador, said that the foliage and outgrowth of the jungle covered one of the pits on this site for decades until the firm discovered it in 2014, well after the Ecuadorean litigation concluded.

The firm’s environmental scientist, Dr. Edward Garvey, said that a photoionization detector calibrated the hydrocarbon concentrations there between 130 to 200 parts per million, giving the area the smell of gas. “It’s present to contaminate any plants that might be grown around here, livestock or birds, chickens and the like that might come through here; and, if a farmer walks through here, he’s going to get this on his boots, track it home, bring it home to his family,” Garvey said, according to the transcript.

Chevron’s team addressed these points through what its lawyer’s regularly called “reality checks,” arguing that the pollution levels met Ecuadorean regulatory standards, did not seep into the groundwater and posed no threat to human health.

Disputing each of these points, Ecuador’s team referred to the people living on or near the area at every turn.

The tour headed on June 8 to Aguarico-6, in a canton in the Orellana province where the parties saw a subsistance farmer planting corn by hand.

Ecuador’s lead scientist Garvey noted that the farmer “may also graze his livestock in here or chickens or the like where they can also be exposed, so we have clear and current human exposure here.”

Though the tribunal arrived at the start of Ecuador’s dry season, rain arrived on June 8 and 9. The parties huddled under a tent after first arriving at Shushufindi-55, where Texaco’s subsidiary TexPet drilled between 1975 and 1983.

Residents live there today in “series of barns and connected houses and buildings” that dot the area, according to the June 8 transcript.

“Louis Berger found samples here between 1,800 to 53,000 parts per million,” Garvey told the arbitrators, citing a number that Chevron says has been inflated by a factor of five.

The tribunal spent its final day of the tour visiting a site in Lago Agrio, named after one of the rainforest’s most populous cities, which in turn is named after Texaco’s former headquarters of Sour Lake, Texas.

Ecuador selected Lago Agrio-1 in part because of the “people who live potentially on top of the pits,” Ecuador’s attorney Gregory Ewing from the Washington-based firm Winston & Strawn told the tribunal.

“There are numerous animals running around here,” Ewing said. “We can hear them. There are a lot of dogs. The risk to human health is easy to see.”

Ecuador’s expert Garvey pointed out that the pit the arbitrators were looking at lay “not but 25 to 30 yards from a residence here.”

“This is obviously somebody’s active farm, and so these people are exposed to this material on a regular basis,” he said.

The nearby stream posed a “significant cancer risk, one times ten to the minus three requiring cleanup,” and there was “clear evidence that the stream is still being used by the residents on occasion,” Garvey added.

“A tube of toothpaste was found,” he said. “Toys were also found along the stream’s edge. Chickens, ducks and other animals that live in this residence also drink from the stream.”

As with previous sites, Chevron’s expert John Connor noted that the people living at this site had access to a rainwater-catchment system as an alternative source to the nearby streams. Connor also pointed the tribunal to a blue storage barrel on one of the house’s roofs to show how the residents safely gather water.

Ecuador’s attorney Ewing argued that the residents’ rainwater system is no defense for Chevron. “The issue here is whether the people on their private land are able to use their own natural water sources,” he said.

Chevron noted that the company did not have responsibility for these pits under the RAP agreement. 

Ecuador’s attorney countered that this was “not surprising” because the pit was “never disclosed, and it was hidden.”

The locations that the arbitrators visited represent a fraction of the known oil pits in the region. By Ecuador’s estimates, more than 300 concession areas in the Oriente have oil platforms that require remediation.

Garvey told the tribunal that, if the Ecuadoreans manage to collect the judgment against Chevron, this would mark the fifth multibillion-dollar remediation in which he participated.

The final party to speak during the visit was Eric Bloom, an attorney for the Ecuadorean government from the Washington-based firm Winston & Strawn, who emphasized the significance of the visit. 

“It matters, we believe, to much of this world, given the importance of this rainforest, and we know that it means the world to the people whose very lives depend on this rainforest,” Bloom said.

Bloom reminded that the panel that the proceedings had greater significance for the residents who would not leave. “For some of us, this is an exotic adventure of sorts, but I try very hard not to forget the fact that we are around people where it’s their very lives,” he said. “It’s not a one-week adventure.” [Emphasis added]

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