Saturday, 18 October 2014

Women’s rights group weighs in for—Chevron?

The group once known as NOW Legal Defense Fund is backing the oil giant on a key legal issue, as are some human rights scholars. 

Chevron  CVX -0.54%  has won support from some unexpected allies in its civil racketeering case against New York lawyer Steve Donziger, who obtained an allegedly fraud-and-bribery-marred $9.5 billion environmental judgment against the oil giant in Ecuador in 2011.
Among seven friend-of-the-court (amicus) briefs filed yesterday supporting aspects of Chevron’s case, the most surprising came from the oldest women’s rights group, Legal Momentum—known until 2004 as the NOW Legal Defense and Educational Fund. Its brief supports Chevron’s position on the key legal question of whether courts can issue injunctions in private civil racketeering cases. The group has previously used the federal statute in question—the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO)—to obtain injunctions against violent protesters at abortion clinics.
A second notable brief came from a group of six “human rights and anti-corruption jurists” who are evidently attempting to rebut, if not rebuke, the arguments of Donziger and New York University professor Burt Neuborne, a lawyer for Donziger’s clients, who have argued, for instance, that the litany of crimes Donziger was found to have committed by a Manhattan federal judge last March are a “distasteful sideshow” that should not distract from Chevron’s alleged wrongdoing in Ecuador.
“Advocates for human rights do not advance human rights by violating them,” these new amici argue, “and the corrupt pattern of fraud, extortion, and bribery described by the District Court, if accurate, denies the fundamental human rights to due process of law and a fair trial. … Human rights ends, in short, cannot be promoted through corrupt means.”
The seven briefs were filed in connection with an appeal by Donziger and two of his Ecuadorian clients of a 485-page, 1,842-footnote ruling by U.S. District Judge Lewis Kaplan, entered last March in Chevron’s suit against Donziger under the Racketeer Influenced and Corrupt Organizations Act (RICO). Kaplan found that Donziger had procured the Ecuadorian judgment—for contamination left behind by Texaco, which drilled in the Ecuadorian Amazon from 1964 to 1992 and was acquired by Chevron in 2001—through a pattern of racketeering activity, including extortion, fraud, bribery, witness tampering, obstruction of justice, money laundering, and other crimes. (I summarized highlights of the alleged wrongdoing in this essay.) Kaplan entered an injunction barring U.S. courts from enforcing the judgment, and attempting to bar Donziger from profiting from it even if another country’s courts eventually do enforce it.
A key issue on appeal is whether injunctive relief—court orders as opposed to monetary damages—are available in a private civil RICO case. (Though it’s clear that injunctions are available in criminal RICO cases and in civil RICO cases brought by the government, federal courts are split on whether they’re available in private civil cases.) The issue became crucial when, shortly before trial, Chevron dropped its damages claims against Donziger, which could have come to over $100 million. It did so, it has said, in order obtain a written opinion from the judge detailing Donziger’s wrongdoing—a jury would have rendered a simple yes-no verdict on liability, with no explanation. (I have also speculated elsewhere that, in addition, Chevron may have feared jury nullification, given Donziger’s skill at politicizing the case, and the legitimate, underlying, unresolved questions about Texaco’s conduct in Ecuador.)
A third amicus brief, also arguing that injunctive relief is available in civil RICO cases, was filed by G. Robert Blakey, professor emeritus at Notre Dame Law School, who was chief counsel of the Senate subcommittee that worked on the bill that became RICO in 1969 and 1970. The remaining briefs come from the Chamber of Commerce, theBusiness Roundtable, joined by four international law scholars; the Washington Legal Foundation; and threespecialists in Latin American law.
In July, amicus briefs were filed supporting reversal of all or aspects of Judge Kaplan’s ruling by the Republic of Ecuador; close to 40 international law professors from all over the world; a group of amici including Amnesty International and 17 environmental groups (including two that have received substantial funds from Donziger’s team);EarthRights International; and Judith Kimerling, a law professor at City University of New York’s Queens College and School of Law, who unsuccessfully tried to intervene in the RICO case to represent an indigenous minority group, the Huaorani, whom, she alleges, Donziger has represented inadequately and without authority.


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