Three protests planned today over litigation playbook written by Chevron’s Gibson Dunn law firm
Submitted by: Amazon Defense Coalition - FDA
Posted: Sep 05, 2018 – 12:33 PM EST
NEW YORK, Sep. 05 /CSRwire/ - On the eve of protest in three cities against SLAPP-style harassment lawsuits, the main target of what has become known as the “Mother of All SLAPP Attacks” discussed the new corporate playbook for using courts to silence advocacy.
Steven Donziger, a Harvard-educated lawyer, organized the team that won a landmark $12 billion environmental judgment against Chevron in Ecuador. After losing the case, Chevron attacked the plaintiffs in Ecuador’s Amazon and their lawyer, Donziger, with a SLAPP lawsuit that might be the most vicious and well-funded corporate retaliation campaign in U.S. history. (See here for the evidence against Chevron.)
A SLAPP lawsuit is one filed by a corporation or governmental entity to harass, intimidate, and ultimately silence critics rather than for the merits of any underlying claim. The party that initiates a SLAPP suit almost always has a huge resource advantage compared to the person targeted, which is the case here given that Donziger works out of his Manhattan apartment while Chevron is one of the largest companies in the world. Such lawsuits also violate the Free Speech clause of the U.S. Constitution.
Chevron targeted Donziger with six public relations firms, hundreds of lawyers and investigators, and a U.S. federal judge who allowed the oil giant to present paid-for witness testimony on a civil “racketeering” case that Donziger said “was an attempt to frame me with criminal wrongdoing.” Chevron has spent an estimated $2 billion to pay 60 law firms to attack the Ecuadorians and their lawyers.
Donziger – called a “hero” of the environmental movement by Greenpeace co-founder Rex Weyler -- speaks below on the eve of international protests against intimidation SLAPP lawsuits staged by the “Protect the Protest” coalition including Greenpeace, RAN, Mother Jones, Wikimedia, Electronic Frontier Foundation, and human rights and environmental organizations. He was interviewed by Karen Hinton, the longtime U.S.-based spokesperson for the Ecuadorian communities and the former press secretary for New York City Major Bill DeBlasio.
Karen Hinton (KH): Tell us about Chevron’s SLAPP attacks to undermine the Ecuador judgment.
Chevron likely has spent more money than any company in history on SLAPP attacks after Indigenous groups and farmer communities won a $12 billion environmental judgment. I played a key role in the effort. We won after almost 20 years of litigation marred by Chevron’s delaying tactics, subterfuge, bad faith, witness bribery and even criminality. Four layers of courts in Ecuador found that Chevron deliberately dumped billions of gallons of toxic waste into the Amazon from 1964 to 1992. It was an act of industrial homicide that created an epidemic of cancer that has killed and continues to kill numerous people, including many children. It also decimated the traditional lifestyles of five Indigenous groups. It’s a humanitarian disaster largely ignored by the world community and even by the government of Ecuador.
KH: Is the pollution left by Chevron still out there in Ecuador?
The harm is ongoing; people in the affected communities are dying. I see it with my own eyes as I have taken more than 250 trips to the region. The stories are heartbreaking. Recently, the only nurse in the area and a good friend, Rosa Moreno, passed away from cancer after helping to treat and comfort dozens of people in her small community after they contracted cancer. The entire area where Chevron operated is a death zone. It is still poisoned as the company refuses to comply with the court judgment. There is virtually no medical care or diagnostic equipment.
KH: What about the government of Ecuador? Have they done anything to clean it up?
The government of Ecuador is both a victim of Chevron and a facilitator of its crimes. Bottom line is the government doesn’t have the resources or the expertise to clean up such a massive environmental problem in one of the world’s most bio-diverse and sensitive ecosystems. And it is Chevron that is the ultimate responsible party given that it was the exclusive operator of the oil concession area where the pollution occurred. Chevron needs to act now, but Ecuador’s government needs to provide emergency relief in conjunction with the international community.
KH: Have Chevron’s SLAPP attacks been effective in terms of the legal proceedings?
They have not come close to stopping the case, which is Chevron’s goal. We are enforcing the judgment against Chevron’s assets in Canada with a number of important court victories including one in the Canada Supreme Court. But the attacks have severely delayed the process. Thousands of people likely have died because of the delays caused by Chevron. And the civil justice system seems to keep falling into the traps set by Chevron with its endless motions and delaying tactics, rather than moving this to a conclusion.
KH: What is the status of the case in terms of court proceedings?
The Ecuadorian communities are enforcing the judgment in Canada after Chevron threatened them with a “lifetime of litigation” if they persisted. The courage of these communities is extraordinary. They convinced the Canada Supreme Court to rule unanimously in their favor in a judgment enforcement action after Chevron tried to close the courthouse doors on jurisdictional grounds. This sets the stage for an enforcement trial in Toronto that poses enormous risk to Chevron. We strongly believe the company’s fake "fraud" narrative will fall apart in open court which is why Chevron is trying to so desperately to kill off the case before that trial happens.
KH: You say you were framed by Chevron as part of a SLAPP attack. How?
As the evidence of Chevron’s toxic dumping in Ecuador mounted, and knowing it likely could never win on the merits, the company’s U.S. law firm Gibson Dunn sold management on its “kill step” strategy. This in part involves creating fraudulent evidence to target opposing counsel, with the hope that just the threat of being attacked will force counsel to quit and the case will disappear. That’s the essence of a SLAPP attack. Well, I didn’t quit so they took it to the next step and actually carried out the fraud against me and my Ecuadorian colleagues, including the lawyer Pablo Fajardo and the Goldman Prize winner Luis Yanza.
KH: Explain details.
Gibson Dunn has done this in multiple cases. In my situation, they had foreign investigators pay a corrupt Ecuadorian witness $2 million. Lawyers in the U.S. then coached him for 53 days before he walked into court and claimed I approved a bribe of the trial judge. It was a total lie but the federal judge who refused to seat a jury bought it, for reasons having to do with his pro-business perspective and his refusal to consider key evidence. Chevron knew the judge was on its side or it never would have taken the enormous risk of employing this strategy.
KH: The judge ruled against you, predictably. I was there and saw his open bias against you and your clients.
His conclusions have been contradicted by rulings from 17 different appellate judges in Ecuador who found Chevron’s allegations not only meritless, but preposterous. Nevertheless, as part of its SLAPP strategy, Chevron used the erroneous findings of the U.S. trial judge as a basis to have my law license suspended in New York without a hearing. To avoid a hearing where I could have presented evidence of Chevron’s fraud, they designated me as “an immediate threat to the public order” based on Chevron’s paid-for and false witness testimony. I’m fighting that decision, while I maintain my law license in the District of Columbia. It does illustrates the frightening power of Chevron to co-opt the bar grievance process, which is run largely by corporate lawyers, and turn it into an arm of the SLAPP litigation strategy.
KH: What other pressure tactics does your team use?
We work closely to educate shareholders about the truth of Chevron’s enormous risk from employing SLAPP which one day could really haunt company officials and their lawyers. We have filed a criminal referral letter about it with the U.S. Department of Justice. The fact we put out information that challenges the official line about the case infuriates company management. Recently, 36 institutional shareholders who own Chevron stock wrote a letter to CEO Michael Wirth urging that he explore a settlement. A shareholder proposal at Chevron’s annual meeting stemming from the Ecuador litigation received an unusually high 39% vote of shareholders.
KH: Chevron has spent huge sums to try to taint your reputation and bankrupt you personally. Why you in particular?
Because I have played an instrumental role in designing the strategy and getting the financial resources needed to hold the company accountable. It’s pretty simple – it’s cheaper for Chevron to attack me than to comply with the judgment. Cynical perhaps, but that’s how the game is played by corporations in the context of large liabilities. The same kind of attacks against lawyers happened in the context of the tobacco litigation. The Chevron law firms are happy to execute the strategy because the fees are enormous. Which is a great irony. American lawyers are getting rich off of Chevron’s SLAPP strategy while the Ecuadorian victims suffer from a humanitarian catastrophe.
KH: What is Chevron’s goal?
To get the lawyers on our team to give up or to snag my “scalp” by bankrupting me and then use that fact to intimidate other lawyers into not taking these large and complicated environmental cases. Chevron just filed a motion to force me to pay $33 million in company legal fees.
KH: A coalition of environmental and civil liberties groups has organized a campaign to protest SLAPP lawsuits. Thoughts?
This campaign is an incredibly important development. People need to pay attention and organize to stop these abusive litigation practices.
KH: Have others in the environmental community been targeted?
Several others, like Greenpeace and the human rights lawyer Terry Collingsworth, also have been attacked recently by corporate-funded SLAPP suits that seem to be copycats of the Chevron strategy. Chevron’s law firm Gibson Dunn wrote the playbook for the use of “racketeering” laws intended to target the Mafia to attack human rights advocates. It’s unethical and has sparked outrage in the legal community in Canada. It’s just unheard of in Canada for a company to sue opposing lawyers during an active litigation. The fact U.S. judges allow these cases to even proceed to step one is outrageous. Part of the purpose of the coalition is to educate the judiciary on how to spot a SLAPP lawsuit which are almost always dressed up with seemingly normal sounding claims like "defamation" or "trespass".
KH: How are your clients?
Strong, tenacious, committed, but also wrecked physically by the wave of cancers and other health problems. They have fought heroically for almost 25 years to hold Chevron accountable. They need clean water, medical care, a restoration of ancestral lands, and a clean-up of 1,000 unlined waste pits that continue to contaminate groundwater, rivers, and streams. Much of the damage is so severe it will never be fully repaired, but much can be done and must be done to save lives and restore the habitat.
KH: Do you think Chevron will continue to stonewall?
The deeper problem is that Chevron and other oil majors likely face more than one trillion dollars in environmental liabilities around the world to Indigenous and other impoverished communities that have never been booked. What was done in Ecuador is not uncommon; look at Peru, Nigeria, and other countries where we see disastrous environmental contamination stemming from similar misconduct from the oil and mining industries. The last thing these industries want is for Indigenous peoples in Ecuador to recover funds such that other groups around the world get inspired.
KH: How are you personally.
I and my clients and colleagues are getting a lot of support from around the world and we are incredibly thankful for that. But we always need more. This is not an easy job. Solidarity is important when dealing with SLAPP. It is also important for the victims of this abusive practice to stick together and turn the attention back onto the corporations and legal attack dogs who carry out these strategies. Both corporations and their law firms need to be called out. Public awareness and action is the only way these bullying tactics can be defeated.
Here is a detailed document on Chevron’s SLAPP fraud. Here is a photo essay of some of Chevron’s victims in Ecuador. Here is background on the pattern of fraud used by Chevron’s law firm Gibson Dunn in its SLAPP attacks.
For more information, please contact: