Ecuadorian plaintiffs take aim at federal judge

Jessica M. Karmasek Sep. 1, 2011, 1:38pm


NEW YORK (Legal Newsline) - A group of Ecuadorian residents are accusing a federal judge of improperly allowing Chevron Corp. to re-litigate an eight-year trial that it lost to help bail out the oil giant, according to recent court filings.

In February, an Ecuadorian court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups. Damages were found to be up to $18 billion.

Chevron filed a racketeering lawsuit, alleging that the Ecuador suit has been used to threaten the oil company, mislead U.S. government officials, and harass and intimidate its employees -- all to extort a financial settlement from the company.

In March, U.S. District Judge Lewis Kaplan, for the Southern District of New York, issued an injunction blocking worldwide enforcement of the judgment. That ruling is under an expedited appeal before the U.S. Court of Appeals for the Second Circuit, with arguments set for later this month.

In a series of motions, the Ecuadorian residents allege that Kaplan has repeatedly denied them time to prepare for a November trial on Chevron's declaratory judgment.

The Ecuadorians also asked Kaplan to dismiss the case entirely because it has no legal basis.

They assert that Kaplan is "pushing this case towards a trial date for which the Ecuadorian plaintiffs cannot possibly be prepared."

"Continuing on this course will prejudice the Ecuadorian Plaintiffs, deprive them of their due process rights, foster an injustice and result in a proceeding" with a "pre-determined result," said the papers, filed by the Texas law firm Smyser Kaplan & Veselka, which recently joined the case on behalf of the Ecuadorians.

Ecuador's government has said that the November trial runs counter to long-established jurisprudential norms, and international law scholars and environmental groups have filed briefs arguing that Kaplan can cite no proper basis for the trial.

The Ecuadorian residents, themselves, believe Kaplan already has decided to rule in Chevron's favor.

In their motions, they criticize the federal judge for allowing the November trial to "mushroom into a re-trial of the merits of the underlying action in Ecuador."

The Ecuadorians' motions are just the latest in a string of court filings accusing Kaplan of failing to provide a fair trial.

Last month, lawyers for the Ecuadorian plaintiffs suing Chevron argued the judge has set an unrealistic discovery and trial schedule, "which will allow Chevron to put on its pre-packaged set-piece featuring the alleged shenanigans of counsel and a retrial of certain aspects of the underlying case."

In another motion filed last month, lawyers for Steven Donziger, who represented the Ecuadorian plaintiffs for the 18-year history of the case, again pleaded that Kaplan let Donziger fully participate in the November trial.

His lawyers, like the Ecuadorian residents, argued that Chevron is seeking, with the judge's approval, a "do over" of the trial it lost in Ecuador.

"Chevron's recent fraud-focused expert submissions are of a piece with its strategy from the outset of this
litigation. Since day one, Chevron has used isolated snippets from Donziger to create claims that the Ecuadorian judgment is the product of fraud or corruption and to divert attention from the undeniable evidence of environmental catastrophe underlying the Lago Agrio Court's decision," Donziger's lawyers wrote.

"Unless the Court rethinks some of its decisions about who can defend, and how and when that defense should happen, the 'do over' will be a one-sided show trial without any semblance of fairness or due process or concern for the merits."

On Wednesday, an international arbitration tribunal awarded Chevron and Texaco Petroleum Co. $96 million in a claim against Ecuador related to past oil operations by Texaco Petroleum, which is now a Chevron subsidiary.

The tribunal, administered by the Permanent Court of Arbitration in The Hague, found that Ecuador's courts violated international law through their significant delays in ruling on certain commercial disputes between Texaco Petroleum and the Ecuadorian government.

The decision is separate from the current dispute over the $18 billion judgment against Chevron.

From Legal Newsline: Reach Jessica Karmasek by email at

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