12 Key Facts Essential to Understanding the Chevron-Ecuador Litigation – The Amazon Post

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12 Key Facts Essential to Understanding the Chevron-Ecuador Litigation

Date: Apr 1, 2022

1. Steven Donziger Is an Adjudicated Racketeer. The U.S. District Court for the Southern District of New York found overwhelming evidence that Donziger “obtained [the Ecuadorian judgment against Chevron] by corrupt means,” including a pattern of extortion, bribery, wire fraud, money laundering, witness tampering, obstruction of justice, and violations of the Travel Act and Foreign Corrupt Practices Act.  See Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 644 (S.D.N.Y. 2014), aff’d Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016). The Court held that the corrupt Ecuadorian judgment was just one component of Donziger’s unlawful pressure campaign to extort Chevron out of billions of dollars—and had he succeeded, he would have personally profited by “more than $600 million.” id. at 504.

2. The Fraud, Extortion, and Bribery Findings Were Conclusive, Well Documented, and Unanimously Affirmed by a Distinguished Appellate Panel. On appeal, a unanimous Sec­ond Circuit, in an opinion by the distinguished Carter appointee Judge Amalya Kearse, af­firmed Judge Kaplan in full. The court noted that Donziger did not “challeng[e] the sufficiency of the evidence to support any of [Judge Kaplan’s] findings” and held that “[t]he record . . . reveals a parade of corrupt actions by [Donziger and his] team, including coercion, fraud, and bribery, culminating in the promise to [an Ecuadorian judge] of $500,000 from a judgment in favor of the plaintiffs.” Chevron Corp. v. Donziger, 833 F.3d 74, 81, 126 (2d Cir. 2016). The U.S. Supreme Court denied certiorari, rendering the judgment final and unappealable.

3. An International Arbitration Tribunal Independently Established the Fraud. In 2018, a Bilateral Investment Treaty arbitration panel—including an arbitrator appointed by Ecuador (the “BIT Tribunal”)—unanimously made the same findings of fraud, bribery and corruption. Chevron Corp. v. Ecuador, PCA Case No. 2009-23, Track II Award (Aug. 30, 2018) (“BIT Award”). The BIT Tribunal found that “the circumstantial and other evidence adduced in this arbitration is overwhelming. Short of a signed confession by the miscreants . . . the evidence establishing ‘ghostwriting’ in this arbitration ‘must be the most thorough documentary, video, and testimonial proof of fraud ever put before an arbitral tribunal.’” BIT Award at ¶ 8.54.  In June  2022, the Court of Appeal of The Hague rejected the Republic of Ecuador’s attempt to set aside the Track II award.  The District Court of the Hague had previously rejected Ecuador’s set-aside position in the first instance in 2020, and the Court of Appeal upheld the District Court’s decision in full, ruling that Ecuador had no basis to challenge the Track II Award’s holdings or relief:  “The Court … does not see … why the consequences of the enforcement of a judgment rendered by a corrupt Ecuadorian judge (and upheld by higher courts) ordering Chevron to pay USD 8.6 billion should be for the account (and risk) of Chevron and TexPet, instead of Ecuador … Ecuador ignores the fact that the underlying cause of the situation that has arisen is the fraudulent Ecuadorian judgment.” Republic of Ecuador v. Chevron Corp., Case No. 200.288/128/01, Judgment of June 28, 2022 (Court of Appeal of The Hague), Para 8.30.

4. The BIT Tribunal Examined and Rejected the Environmental Allegations. The Tribunal found that “TexPet spent approximately $40 million in environmental remediation and com­munity development,” the remediation was carried out by a “well-known engineering firm specializing in environmental remediation” and, following completion of the remediation, in 1998, Ecuador executed a final release agreement “certifying that TexPet had performed all of its obligations” and releasing TexPet from any liability. BIT Award at ¶¶ 4.67—.69. After a personal visit to the area and having considered 40 reports from environmental experts, the Tribunal members found “no cogent evidence” supporting Ecuador’s claim that Texaco failed to comply with the terms of the remediation plan approved by Ecuador. BIT Award at ¶ 4.179.

5. Texaco Met its Environmental Obligations but Ecuador Has Not. The BIT Tribunal’s award also recites the sworn testimony of Ecuadorian officials that Ecuador’s national oil com­pany “during more than three decades, had done absolutely nothing” to address its own obli­gations to remediate the environmental conditions in the area, even though Ecuador received 97.3% ($22.67 billion) of the Consortium’s total revenue, while Texaco’s subsidiary TexPet received less than 3 % ($480 million). BIT Track II Award ¶ 4.64.

6. Multiple International Courts Have Confirmed the Wrongdoing. The judgment has been rejected everywhere Donziger has sought to enforce it. It was rejected outright in both Brazil and Argentina, and, in Canada, Donziger’s team dismissed their case with prejudice after suf­fering adverse rulings.

7. Ecuador Now Concedes the Judgment Against Chevron Is Fraudulent. In 2020, the Dis­trict Court in the Hague upheld the BIT Tribunal’s award, highlighting that the Republic of Ecuador concedes that the judgment is fraudulent: “The fraudulent character of the judgment and the proceedings preceding it is common ground between [Chevron and Ecuador].” Ecua­dor v. Chevron Corp., C/09/570029 / HA ZA 19-268 (Sep. 16, 2020). Ecuador also admitted that the judgment is “fraudulent” in a letter to the U.S. Trade Representative, see Comments on Chevron Corporation’s Written Comments and Responses to USTR’s Questions, Ambassa­dor of Ecuador to the United States, at 3 (July 2020) (referring to the judgment as “fraudulent”).

8. Donziger’s “Egregious Professional Misconduct” Resulted in His Disbarment. In 2020, the New York Appellate Division disbarred Donziger for “egregious professional misconduct, namely, corruption of a court expert and ghostwriting his report, obstruction of justice, witness tampering, and judicial coercion, and bribery which he steadfastly refuses to acknowledge and shows no remorse for.” Matter of Donziger, 186 A.D.3d 27, 30 (2020). In May 2021, the New York Court of Appeals denied Donziger’s attempt to appeal.  In May 2022, the Supreme Court of the United States rejected Donziger’s petition for certiorari.  In July 2022, the District of Columbia Court of Appeal also disbarred Donziger, expressly ”reject[ing] Mr. Donziger’s claim that the New York disciplinary proceedings deprived him of due process” and his argument that his disbarment “would result in a grave injustice.”  Donziger is no longer licensed to practice law in any jurisdiction.

9. Donziger Has Been Held in Civil Contempt, and Convicted of Criminal Contempt, for Defying Court Orders and the RICO Judgment. In March 2021, the Sec­ond Circuit affirmed all but one of Judge Kaplan’s many findings of civil contempt, most of which resulted from Donziger’s attempts to profit from his fraud and cover up his misconduct. The Second Circuit found “that Donziger acted in contempt of the Injunction that resulted from the RICO Judgment in numerous ways.” Chevron Corp. v. Donziger, 990 F.3d 191, 213 (2d Cir. 2021). The Court noted that, for the most part, Donziger did “not even attempt to challenge the district court’s findings.” Id.  Donziger did not appeal the district court’s order that he turn over his electronic devices, and in fact appealed only the contempt finding regarding how he could get paid.  Id. at 200 n.4 (“Donziger challenges the contempt finding only as to his alleged profiting and monetizing of the Ecuadorian Judgment. Indeed, he expressly admits that he has not addressed any other ‘lingering civil contempts’,” including “violating a court order to provide forensic experts access to certain electronically stored information.”).  In August 2019, Judge Kaplan filed an Order to Show Cause charging Donziger with six counts of criminal contempt for his violations of court orders and the RICO judgment.  After a week-long trial, on July 26, 2021, Judge Loretta A. Preska convicted Donziger on all six counts in a 241-page opinion. United States v. Donziger, 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021). Judge Preska found that Donziger tried to “take the law into his own hands” and “repeatedly and willfully def[ied] Judge Kaplan’s orders.” Id.[1]  On October 1, 2021, Judge Preska sentenced Donziger to six months imprisonment.  Donziger filed a motion for release pending his appeal on October 8, 2021, which the Second Circuit summarily denied on October 26.[2]  As for the merits of Donziger’s appeal, it is notable that his appellate brief focused principally on the issue of the constitutionality of the appointment of the private attorneys who were assigned to prosecute his contempt case pursuant to Federal Rule of Criminal Procedure 42.  It does not repeat any of Donziger’s incendiary media talking points, as for example about the judges who ruled against him being supposedly corrupt.  Nor did Donziger’s counsel make any such assertions at the merits oral argument, which was held on November 30, 2021.  After serving part of his sentence in the federal penitentiary in Danbury, Connecticut, Donziger was, as a result of a COVID policy, subsequently released to serve the remainder of the sentence under home confinement.   On June 22, 2022, the Second Circuit affirmed Donziger’s criminal conviction:  “Donziger does not deny that he repeatedly refused to obey court orders over a period of years. The district court’s findings of fact and conclusions of law describe Donziger’s behavior as an “extensive and continuous laundry list of past violations of [the district court’s] orders” and as “years of noncompliance.”  United States v. Donziger, No. 21-2486 (June 22, 2022), at 29-30. 

10. Donziger Knew the Wrongfulness of his Conduct. “[O]ne Ecuadorian legal team member, in a moment of panicky candor, admitted that if documents exposing [Donziger’s corrupt deal­ings with the court-appointed expert] were to come to light, ‘apart from destroying the pro­ceeding, all of us, your attorneys, might go to jail.” Donziger, 974 F. Supp. 2d at 386.

11. Donziger has Raised Millions for Which he has Never Accounted. “[M]illions of dollars have passed through Donziger’s hands over the years. Much of it is unaccounted for” and he has previously “shift[ed] assets in which he has an interest into foreign locations to avoid what he may regard as judicial ‘interference.’” Chevron Corp. v. Donziger, No. 11-cv-00691, Dkt. 2009 at 2 (S.D.N.Y. May 17, 2018). Specifically, Donziger has raised at least $19 million, including more than $9 million that flowed through bank accounts Donziger personally controlled. Chevron Corp,. v. Donziger, No. 11-cv-00691, Dkt. 2115-1 at Exs. 3-B, 9 (S.D.N.Y. Oct. 24, 2018).

12. Many Former Ecuadorian Clients and Allies Have Repudiated Donziger as Corrupt. In 2016, the group known as UDAPT, formerly Donziger’s client, declared Donziger persona non grata for selling interests in the Ecuadorian judgment “without any authorization to do so” from the people he claimed to represent and “repeatedly refus[ing] to give an accounting on the use of more than US$20 million that he ‘raised’ on behalf of his clients.” See Chevron Corp. v. Donziger, No. 11-cv-691, Dkt. 2114-3 at 455 (S.D.N.Y. Oct. 24, 2018).

Footnotes

  1. Much as the Second Circuit noted in March 2021, Judge Preska’s ruling on Donziger’s criminal contempt held that Mr. Donziger’s civil contempt appeal “focused almost exclusively on Judge Kaplan’s contempt finding regarding Mr. Donziger’s fundraising for the Lago Agrio Case by selling interests in the Ecuadorian Judgment other than his own,” and that it did not challenge “in any way” the numerous other contempt findings against him, including for failure to turn over his devicesUnited States v. Donziger, No. 11-CV-691 (LAK), 2021 WL 3141893, at *47 (S.D.N.Y. July 26, 2021).
  2. The Second Circuit’s decision follows repeated rejections of Donziger’s demands at the trial level to have his pretrial home detention restrictions removed.  As Judge Preska noted, “Since his initial appearance in August 2019, Mr. Donziger has sought to have the home confinement condition of his pretrial release eliminated or modified no fewer than five times.  The Court rejected each of those efforts, finding that Mr. Donziger was a flight risk based, inter alia, on his extensive ties to Ecuador and the possibility that he faced imprisonment for the first time. Mr. Donziger twice appealed those determinations to the Court of Appeals, which unanimously affirmed this Court’s orders.” United States v. Donziger, No. 11-CV-691 (LAK), 2021 WL 3141893, at *51 (S.D.N.Y. July 26, 2021).  Donziger also exacerbated his own home confinement by initially refusing a February 2020 trial date, United States v. Donziger, 1:19-cr-00561, ECF 42 at 10:13-16 (S.D.N.Y. Dec. 11, 2019), and then requesting ten separate times to postpone the trial such that it only occurred in May 2021.  United States v. Donziger, 1:19-cr-00561, ECF 242 (S.D.N.Y. Jan. 10, 2021).