Second Circuit to consider petition to reassign federal judge in Chevron RICO case

By Jessica M. Karmasek | Aug 30, 2013

NEW YORK (Legal Newsline) -- The U.S. Court of Appeals for the Second Circuit will consider a petition to reassign a federal judge overseeing a case stemming from a $19 billion judgment against oil giant Chevron Corp.

In a notice filed Aug. 14, the Second Circuit set Sept. 26 for oral argument on the petition to reassign Judge Lewis Kaplan for the U.S. District Court for the Southern District of New York.

Kaplan is currently presiding over a RICO lawsuit that Chevron filed against a group of Ecuadorians and their lawyers. The fraud case was filed by the company in the New York federal court in 2011.

New York attorney Steven Donziger and Ecuadorian plaintiffs Javier Piaguaje and Hugo Camacho filed a petition for writ of mandamus with the federal appeals court in June. They want the judge to be removed from the case for his alleged bias.

In a rare move, the court asked Kaplan for a legal brief in his defense. However, the judge "respectfully declined" the court's invitation, according to a letter last month.

The U.S. Chamber of Commerce has filed an amicus brief in the case.

"The Chamber is concerned that improper resolution of Petitioners' tactical use of a request for judicial reassignment could set a dangerous precedent with long-standing effects," former U.S. Attorney General Michael Mukasey wrote in the brief, filed July 29.

The Chamber's Institute for Legal Reform owns Legal Newsline.

This week, Donziger and the Ecuadorian plaintiffs asked Kaplan to temporarily suspend the RICO case until the Second Circuit rules on their petition for reassignment.

The trial in the fraud case is set to begin in October.

Kaplan already has denied a request by Donziger for a trial stay.

Last month, the judge said the motion for a three-month stay of the trial is a "radical shift" in position by Donziger.

"In ordinary circumstances, some delay to permit a litigant whose counsel suddenly had withdrawn to secure new counsel usually would be granted," Kaplan wrote. "But the withdrawal of the Keker firm was not sudden, and there is nothing ordinary about these circumstances."

Donziger filed a motion in June asking Kaplan to grant a three-month stay to prevent the case from "devolving into a mockery of justice and due process."

"The breakneck pace of Chevron's continued legal onslaught since withdrawal of my former counsel is severely prejudicing my ability to defend myself," he wrote in his motion, originally filed June 1.

In May, Kaplan allowed the law firms defending Donziger, Piaguaje and Camacho to withdraw from the case.

Lead attorneys John Keker of San Francisco-based Keker & Van Nest and Craig Smyser of Houston-based Smyser Kaplan & Veselka argued that the judge's ongoing bias in the case and Chevron's litigation tactics have made it impossible for their clients to pay their legal bills.

Keker, who also was the attorney for prominent Mississippi attorney Richard "Dickie" Scruggs during two judicial bribery cases, was representing Donziger in the case.

From Legal Newsline: Reach Jessica Karmasek by email at

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