Oil giant’s claims stem from the law firm’s representation of Ecuadorian plaintiffs bringing an environmental suit in Lago Agrio.
Since late 2010, Washington, D.C. law firm Patton Boggs has been poking a sleeping tiger. It has filed three peculiar federal lawsuits — in its own name, not on behalf of any client — against Chevron, the third-largest corporation in the United States. These cases have fared poorly; two were quickly dismissed, and a federal magistrate judge recommended tossing the third in March.
On Friday, the tiger awoke. Chevron (CVX) sought a federal judge’s permission to bring counterclaims against the 455-lawyer firm for alleged fraud and deceit for its conduct in representing the Amazon Defense Front, which obtained a $19 billion environmental judgment against the oil giant in Lago Agrio, Ecuador, in February 2011. Chevron also seeks to charge the firm with “malicious prosecution” for having pursued its three lawsuits in bad faith. Chevron seeks to hold the law firm liable for any damages Chevron suffers from the Front’s allegedly fraud-infested litigation, plus punitive and treble damages.
In a statement, Patton Boggs wrote: “Chevron’s proposed complaint against Patton Boggs is perhaps the starkest example yet of how Chevron will use its limitless resources to intimidate and harass anyone that dares to help the Ecuadorian Plaintiffs in their 20-year battle for justice … Patton Boggs has acted conscientiously, ethically and in good faith at all times since becoming involved in this case in 2010, and will not be intimidated by Chevron’s scare tactics.” (See the full document here.)
Patton Boggs began representing the Front in February 2010. The firm is being paid on a partial contingency fee basis, under an agreement that gives it a 2.4% stake in the Ecuadorian judgment, according to earlier filings by Chevron. Thus, the law firm theoretically stands to make about $450 million if the Ecuadorian judgment can ever be collected. (Chevron has virtually no assets in Ecuador.)
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Patton Boggs’s team working on the Lago Agrio case has been led by James Tyrrell, Jr., a regional managing partner of the firm’s New York and New Jersey offices and a member of its executive committee.
At the time Patton Boggs got involved in the matter, Chevron’s lawyers had just begun filing a series of U.S. court proceedings, known as Section 1782 actions, to attempt to expose fraud, fabrication of evidence, and other chicanery that Chevron claims the Front engaged in to obtain the Ecuadorian judgment. Patton Boggs’s task was, among other things, to assist the Front in resisting Chevron’s efforts to unearth such evidence.
Notwithstanding the Front’s and Patton Boggs’s efforts, Chevron eventually did obtain much of the evidence it sought, and in February 2011 it filed a civil Racketeer Influenced and Corrupt Organizations Act (RICO) case in Manhattan against the Front’s leaders, including its top U.S. lawyer and strategist, Steve Donziger. Last July, in a ruling on a partial summary judgment motion in that case, U.S. District Judge Lewis Kaplan found that the March 2011 Ecuadorian judgment was, in fact, “unquestionably … tainted” by fraud. More recently, in a discovery order in March 2013, he also found that there was “probable cause” to believe that Front representatives “bribed the Ecuadorian judge to obtain the result they wanted and, as part of the deal, wrote the judgment to which the judge put his name.”
(The Front has repeatedly and unsuccessfully sought to remove Judge Kaplan from the case, accusing him of bias in strident and borderline contemptuous terms.)
One of the reasons Judge Kaplan found it likely that the Ecuadorian judgment was ghostwritten by the Front’s lawyers is that it incorporates large passages that appear to have been lifted verbatim from internal Front legal memoranda that were never introduced into the Ecuadorian court record. In the proposed complaint, Chevron alleges that at least one of the lifted passages incorporates Patton Boggs’s own work product.
Thus, it alleges, “Patton Boggs either knew in advance of the ghostwriting of the judgment against Chevron or must have become quickly aware of it once Chevron began to make the evidence known, and yet Patton Boggs continued to further the fraudulent scheme … Despite the uncontradicted evidence to the contrary, Patton Boggs has falsely asserted in the U.S. that this judgment is legitimate and not the product of a corrupt process in which Patton Boggs and/or its co-counsel colluded with the Ecuadorian court or court experts.”
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Another focus of Chevron’s proposed complaint is Patton Boggs’s alleged role in “direct[ing] the creation of a declaration” signed by Front lawyer Pablo Fajardo that was filed in a Section 1782 action in Denver federal court in May 2010.
In his March 2013 ruling, Judge Kaplan called the Fajardo declaration “a seriously misleading account of what had happened” and, again, found “probable cause” to believe that “at least some” of the Front’s representatives “had committed mail and/or wire fraud and obstructed justice … by formulating and filing” it. The Front later filed the Fajardo declaration in at least eight other U.S. courts around the nation, including Kaplan’s.
Also in dispute is a strategy Patton Boggs allegedly “orchestrated” of hastily seeking testimony from seven newly hired experts — known internally at Patton Boggs as the “cleansing” experts — and introducing their written testimony into the Ecuadorian court record in late 2010 in an effort to give the Ecuadorian court something to base its opinion upon other than a court-appointed expert’s report that Chevron alleges (and appears to have proven) was secretly ghostwritten by the plaintiffs lawyers.
Chevron alleges that the cleansing experts in fact simply relied on the fraud-tainted report and that Patton Boggs’s lawyers tried to conceal that fact.
Chevron also takes issue with Patton Boggs’s continuing attempts to enforce the Ecuadorian judgment in foreign courts, including, so far, those of Canada, Argentina, and Brazil, “despite overwhelming and un-rebutted evidence that the Ecuadorian judgment itself, and the [court-appointed expert’s report] upon which it is based, were fraudulently ghostwritten by the LAPs’ own team.”
Finally, Chevron faults Patton Boggs for having helped the Front secure funding for its allegedly fraud-tainted litigation by allegedly misleading the investment fund Burford Capital, which specializes in litigation finance. Burford has since renounced its interest in the case and has accused both the Front’s leaders and Patton Boggs’s Tyrrell of having made false representations to lure it into the case. (Patton Boggs has responded in the past that it is “fully confident that it has acted appropriately and ethically.”)
Chevron’s proposed complaint is based on documents already in its possession that relate to Patton Boggs’s role in the case, but it is already in the process of trying to obtain many more documents from the firm. In March Judge Kaplan ordered Patton Boggs to begin turning over millions of pages of files in the case, finding that any attorney-client privilege was pierced by the so-called crime-fraud exception. He wrote: “PB participated heavily in certain critical activities that make it likely that it is an important and, in many respects, unique source of evidence of the alleged fraud that is available nowhere else and that at least some of the materials in its possession or control were in furtherance of crimes or frauds regardless of whether PB was aware of them.”
Chevron’s new proposed claims against Patton Boggs are not being leveled in the RICO case itself, which is scheduled to go to trial in October, but rather as a counterclaim in a case Patton Boggs itself brought against Chevron in Newark last year, which was transferred to Manhattan earlier this year.
MORE: Evidence of fraud mounts in Ecuadorian suit against Chevron
That case is the third of Patton Boggs’s suits against Chevron, which are the subject of Chevron’s “malicious prosecution” allegation against the firm. The string of Patton Boggs suits began in November 2010, when it sued Chevron seeking a preemptive declaration that Patton Boggs had no conflict of interest in representing the Front — though Chevron had not moved to disqualify it. (The potential conflict related to Patton Boggs’s July 2010 acquisition of the Breaux Lott Leadership Group, a lobbying firm that Chevron says was representing it with respect to its Ecuador litigation between 2008 and 2010.) Patton Boggs later added Chevron’s main outside counsel, Gibson Dunn & Crutcher, as a defendant, and also accused Chevron of “tortious interference with contract” for having allegedly interfered with the Front’s ability to find financing with which to pay Patton Boggs. U.S. District Judge Henry Kennedy, Jr., dismissed this and a second, nearly identical Patton Boggs suit against Chevron in April, July, and August of 2011, and an appeals court unanimously affirmed both dismissals in June 2012.
By then, Patton Boggs had filed the third suit against Chevron in Newark. This one had to do with a $21.8 million appeal bond that Judge Kaplan had required Chevron to post when, in March 2011, he granted a preliminary injunction barring the Front from trying to enforce the Ecuadorian judgment outside Ecuador. After the injunction was vacated by an appeals court in January 2012, Chevron asked Judge Kaplan to release the bond — i.e., give Chevron back the money it had posted.
Patton Boggs opposed Chevron’s motion, but instead of simply doing so in a motion before Judge Kaplan on the Front’s behalf, it filed an entirely new lawsuit in Newark on Patton Boggs’s own behalf. Later Patton Boggs added a “malicious prosecution” claim against Chevron for its having identified Patton Boggs as a “co-conspirator” (though not a defendant) in its RICO suit. In December 2012, Newark federal judge Esther Salas transferred the case to Judge Kaplan in Manhattan, criticizing Patton Boggs’s “jurisdictional maneuvering.” (Judge Kaplan released the bond in April 2012, and Patton Boggs has appealed that order.)
In March 2013, Magistrate Judge James C. Francis IV in Manhattan recommended dismissal of Patton Boggs’s third suit, and Patton Boggs has appealed to Judge Kaplan. Chevron’s new claims against Patton Boggs for fraud and deceit, filed today, come as counterclaims in that case.
It seems likely that Patton Boggs was already losing money from its representation of the Front — that was an underlying premise for all three of its lawsuits against Chevron — and the counterclaim against it by Chevron cannot help its situation. Patton Boggs did not respond to a request for comment on whether the Front was in arrears on payments owed to it.
Last week another of the Front’s U.S. law firms, Houston’s, Smyser Veselka & Kaplan, asked to withdraw from the RICO case, saying it was owed almost $1.8 million in fees. At the same time, Donziger’s law firm in that case, Keker & Van Nest — which the Front had also been paying, under the terms of its retainer agreement with Donziger — also asked to withdraw, saying it was owed more than $1.4 million in fees.
According to the Wall Street Journal, Patton Boggs laid off 65 lawyers and staff in late February, after a decline in profits. Its annual revenues were down 6.5% in 2012, the article said, while its profits fell 14%.
By Roger Parloff-Fortune, May 13, 2013