Overview
Post-trial briefing was completed Tuesday in the RICO trial challenging a multibillion dollar Ecuadorian judgment against Chevron. (See Chevron Brief / Reply; Donziger Brief / Reply) Chevron’s opening brief states:
Chevron submitted forensic evidence and eyewitness testimony showing that Defendants ghostwrote the $18 billion Ecuadorian judgment they obtained against Chevron. In response, Defendants proffered former Ecuadorian judge Nicolas Zambrano as the judgment’s supposed sole author. He testified repeatedly that the judgment was typed on his “new” computer, but this contradicts the forensic expert declaration Defendants themselves proffered, which attested that a draft of the judgment was found on the old computer. It also contradicts the documents showing the date the “new” computer was purchased and shipped to Ecuador. Zambrano was unable to answer even the most basic questions about the judgment he supposedly wrote, and he had no plausible explanation for the judgment’s reliance on foreign law or inclusion of English words whose meaning he did not know. Neither he nor Defendants could explain how internal memos, emails, and database entries from Defendants’ own confidential files appear verbatim in the judgment, even though they are not in the court record. Chevron submitted voluminous evidence from Defendants’ files and adduced testimony from Defendants confirming that Donziger’s team ghostwrote the report of court expert Richard Cabrera, objected to it, ghostwrote Cabrera’s response, and then touted the report in the United States as the “independent” findings of the Ecuadorian court’s “special master.” At trial, Defendants insisted that Cabrera “adopted” the report, but their own correspondence shows that they were revising it until immediately before they printed it for Cabrera to pick up and file, and Defendants offer no evidence that Cabrera had any input into its contents, or that he even read it. They could offer only Donziger’s self-serving testimony that he considered Cabrera to be “independent” even though Donziger himself oversaw the drafting of the report, arranged for undisclosed payments to Cabrera from Defendants’ “secret account,” and clandestinely met with Cabrera—all while Defendants and Cabrera denied this in numerous statements in court and in public. And Defendants did not ever attempt to justify their indefensible actions in objecting to the “Cabrera” report they had just ghostwritten, and then secretly drafting Cabrera’s response accepting their objections and jacking the damages up to $27 billion.Donziger’s opposition focused on the argument that Chevron lacks standing:
[T]here can no longer be any question that this Court lacks jurisdiction. No federal court has jurisdiction unless the plaintiff has standing, and RICO imposes rigorous standing limits. Intent on depriving Donziger of his constitutional right to a jury trial—and apparently lacking confidence in its own evidence—Chevron dropped all of its claims for damages on the eve of trial. But, with damages off the table, what is Chevron’s injury here? The judgment has not yet been enforced, so how could its injury be concrete and non-speculative? The judgment is based on scientific evidence that has gone uncontested at trial, so how can Chevron possibly show causation? And if the injury based on costs incurred, then how is it redressible by equitable relief? If these questions cannot be answered here, they will have to be answered on appeal.Donziger also filed yesterday a motion to dismiss for lack of subject matter jurisdiction that is based on similar standing arguments:
For all of its gargantuan briefing, Chevron has not even identified (much less proven) a single injury that would give it standing. That’s because none exists. Chevron says that it has been injured by having to defend itself in foreign proceedings seeking to hold the company accountable for its pollution of the Amazon rainforest. But how, exactly, would that injury be redressed by an injunction that, Chevron insists, would not prohibit those proceedings? Chevron also asks this Court to divest the defendants of their interests in the Ecuadorian judgment—relief that Chevron calls (at page 344) “disgorgement” of “any future gains.” But how would that relief remedy a present injury of Chevron’s—or prevent a certainly impending future injury—when no court has yet enforced the judgment, and Chevron itself confidently asserts (at 340) that “[n]o tribunal with respect for the rule of law will ever enforce the Lago Agrio judgment”? Chevron spends hundreds of pages complaining about the Ecuadorian trial court’s decision finding the company liable for decades of unprecedented, willful pollution, as well as the preparation of a single expert report submitted in that case. But how can either of those things be said to have caused Chevron’s purported injury when the company has chosen not to contest its liability here and an Ecuadorian appellate court undertook a de novo review of the decision, expressly refused to rely on the expert report, and then affirmed the judgment (which has since been affirmed as well by the nation’s Supreme Court)? In the end, Chevron all but admits that it is not asking this Court to resolve any concrete case or controversy. What it really wants out of this proceeding—its “overriding purpose”—is not a remedy for an actual injury caused by real wrongdoing, but just some injunction (any will do) “and the findings supporting it,” which Chevron hopes will “expose the truth” and which it “intends” to take to “foreign courts” for them “to consider” in deciding whether to enforce the judgment. Chevron Br. 340, 343. This Court’s opinion, Chevron “believes,” would “likely” persuade those other courts and thereby increase Chevron’s chances of success—although the final decision would lie in the hands “of the foreign court,” not this one. Id. But just as our Constitution does not empower federal courts “to render advisory opinions,” so too does it bar them from authoring amicus briefs to be filed for consideration abroad.Prior posts on the case are here.
