Former Ecuadorian judge says he was bribed by Ecuadorians suing Chevron

By Jessica M. Karmasek | Jan 29, 2013

NEW YORK (Legal Newsline) -- Chevron Corp. has filed whistleblower testimony in federal court revealing that representatives for a group of Ecuadorians plaintiffs suing the company promised a $500,000 bribe to the judge who issued an $18 billion judgment against Chevron.

The testimony was among the many filings -- including a 45-page memorandum of law -- submitted by the oil giant to the U.S. District Court for the Southern District of New York Monday.

In the testimony, Albert Guerra, who presided over the environmental case against Chevron when it was first filed in 2003, reveals he was paid thousands of dollars by the plaintiffs' lawyers and a subsequent judge, Nicholas Zambrano, for illegally ghostwriting judicial orders issued by Zambrano and steering the case in the plaintiffs' favor.

Guerra, who is no longer a judge, attests that the plaintiffs' lawyers were permitted to draft the $18 billion judgment in their own favor after they promised to pay Zambrano a $500,000 bribe out of the judgment's enforcement proceeds, and that Guerra then reviewed the plaintiffs' lawyers' draft for Zambrano before the judge issued it as his own.

"Guerra's own documents corroborate his account: his computer contains drafts of Zambrano court orders, including orders in the Chevron case; his bank records document LAP (Lago Agrio plaintiffs) payments to him by a Selva Viva/LAP employee while he was ghostwriting orders for Zambrano; and his shipping records and calendar confirm regular exchanges with Zambrano," Chevron writes in its memorandum of law.

In his declaration, Guerra describes multiple meetings with the plaintiffs' lawyers and representatives -- namely, New York-based Steven Donziger, Pablo Fajardo and Luis Yanza -- to discuss payoffs, kickbacks and the ghostwriting of court orders favorable to the plaintiffs.

Guerra attests:

- "I was Mr. Zambrano's 'ghostwriter' and I wrote the great majority of the rulings issued in civil cases assigned to Mr. Zambrano, including the Chevron case;"

- "Mr. Donziger thanked me for my work as ghostwriter in this case and for helping steer the case in favor of the Plaintiffs. The payments from the Plaintiffs' representatives were given to me by Mr. Fajardo in cash, or were deposited into my savings account at Banco Pichincha. I remember that while I was writing court rulings for Mr. Zambrano I would regularly meet with Mr. Fajardo, perhaps twice per month, to discuss my work;"

- "Mr. Zambrano told me he was in direct contact with Mr. Fajardo and that the Plaintiffs' representatives had agreed to pay him USD $500,000 from whatever money they were to collect from the judgment, in exchange for allowing them to write the judgment in the Plaintiffs' favor;"

- "Approximately two weeks before the trial court in the Chevron case issued the judgment, Mr. Zambrano gave me a draft of the judgment so that I could revise it. It was through him that I found out that the attorneys for the Plaintiffs had written that judgment and had delivered it to him;"

- "I worked on that document in Mr. Zambrano's residence in Lago Agrio using Mr. Fajardo's computer;"

- "Based on what Mr. Zambrano told me, it is my understanding that the Plaintiffs' attorneys made changes to the judgment up to the very last minute before it was published;" and

- "I knew at the time, and I know now, that the agreement in which I participated, and by which the Plaintiffs' representatives drafted the judgment in the Chevron case which Judge Zambrano issued, with my help, was a violation of Ecuadorian law. According to Ecuadorian law, only a judge is authorized to write rulings and judgments. For these same reasons I knew at the time, as I know now, that the arrangement in which I participated, whereby I drafted court rulings for Mr. Zambrano steering the case in favor of the Plaintiffs, and was paid by the Plaintiffs' representatives for that work, was a violation of Ecuadorian law. And I knew at that time, as I know now, that the agreement that Mr. Zambrano told me he had reached with the representatives' attorneys, to let them draft the judgment in favor of the Plaintiffs and against Chevron, in exchange for him receiving USD $500,000 once they collected the money from the judgment, was a violation of Ecuadorian law."

One year after issuing the judgment against Chevron, Zambrano was dismissed from the bench as part of an organized crime commission investigation involving the inappropriate release of narcotics traffickers from prison.

Sworn statements by several other witnesses also corroborate Guerra's account, Chevron says.

The company's Ecuadorian lawyers and others known to them now attest to the fact that, at various times during Zambrano's tenures on the case, Guerra directly approached them to solicit bribes on Zambrano's behalf in order to fix the Lago Agrio judgment, and that Chevron refused Guerra's approaches, Chevron says.

The company says Guerra's testimony and corroborating evidence confirm what the "extensive overlap" between the plaintiffs' lawyers' internal files and the judgment itself already supported -- that the plaintiffs' lawyers "corrupted" the Ecuadorian court and actually wrote the $18 billion judgment against it.

Chevron adds that because of the risks to Guerra and his family in coming forward, the company has taken "reasonable measures," based on third-party assessments, to protect his safety and security, and that of his family, including relocating them from Ecuador and providing other assistance.

In exchange for collecting and turning over hard evidence corroborating his account, including his personal computer, two cell phones, his day calendars, and bank, phone and shipping records, Guerra received a total of $38,000 from Chevron, the company notes.

However, as he affirms in his testimony, Guerra has "not... received any money or compensation in exchange for signing this sworn declaration."

Chevron says additional evidence produced by the plaintiffs' American lawyers provides "corroborating proof" that the Lago Agrio plaintiffs' representatives participated in the drafting the judgment.

According to the company, in at least eight separate instances, the judgment tracks the plaintiffs' lawyers' own documents -- in some cases word-for-word -- reciting content from the plaintiffs' lawyers' internal materials that did not form part of the record, as well as copying errors and idiosyncratic reference citations that only appeared in the plaintiffs' internal documents.

Chevron says it intends to provide all of this evidence to Ecuador's Prosecutor General and to request that his office investigate Zambrano and the plaintiffs' lawyers.

The company says it has provided similar evidence of fraud, corruption and attorney misconduct to authorities in Ecuador in the past, but, to date, the government there has taken no apparent action to enforce its laws.

"Chevron once again calls on Ecuadorian authorities, and authorities wherever these plaintiffs' lawyers are trying to advance their fraud, to investigate and bring an end to this scheme," Hewitt Pate, Chevron vice president and general counsel, said in a statement Monday.

"Ecuador should not tolerate American lawyers using Ecuador's institutions and citizens as puppets."

Pate urges other whistleblowers in Ecuador, the United States and elsewhere to come forward.

"It is never too late to tell the truth," he said.

Chevron notes that Guerra, in now coming forward, has also agreed to make himself available to appear before other courts, tribunals and investigators if requested to do so.

Meanwhile, the Ecuadorian plaintiffs are taking aim at the "assistance" provided to Guerra by the oil giant.

Karen Hinton, a spokeswoman for the Ecuadorians, counters the "disgraced" judge is, in fact, being paid by Chevron to make false allegations about the Ecuador trial court judgment.

"In exchange for living the good life in Miami at Chevron's expense, Guerra is now trying to carve out a role in the company's ongoing Nixon-style dirty tricks campaign to evade paying its $19 billion legal obligation for creating the world's worst environmental catastrophe," she said in a statement Monday. "This obligation is owed by Chevron to the indigenous and farmer communities in Ecuador whose cultures have been decimated by the company's greedy and reckless practice of discharging billions of gallons of toxic waste into the environment.

"By its repeated actions of subterfuge, Chevron has shown that it is more than willing to violate the law to escape being held accountable for its environmental crimes and fraudulent cover-up in Ecuador."

In May, U.S. District Judge Lewis Kaplan, of the Southern District of New York, allowed the company's racketeering claims to continue, but dismissed other claims that included tortious interference.

More specifically, Kaplan's order upheld Chevron's complaint for racketeering, fraud, conspiracy and New York Judiciary Law 487, which provides for civil damages against an attorney who engages in deceit or collusion with intent to deceive a court.

"Chevron's extortion allegations are more than sufficient," the judge wrote in his 55-page order.

Last January, an appellate court in Ecuador upheld the $18 billion judgment for Chevron's "intentional contamination" of the country's rainforest.

The adverse ruling was issued by a panel of three temporary judges presiding over the proceedings in the Provincial Court of Justice of Sucumbios in Lago Agrio.

The ruling, which stems from an environmental lawsuit involving Texaco Petroleum Company, confirmed a lower court's ruling in February 2011.

The lower court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups.

Vowing never to pay the hefty judgment, the company filed its racketeering lawsuit in the New York federal court in response.

The company alleges 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.

Kaplan had issued an injunction blocking enforcement of the judgment. However, the U.S. Court of Appeals for the Second Circuit ordered that the injunction be vacated.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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