Legal Papers Ask for Removal of Lewis A. Kaplan Due to Inappropriate Comments, Apparent Bias Against Historic Lawsuit
Amazon Defense Coalition
7 June 2011 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – A U.S. federal judge in New York is questioning whether the Ecuadorian indigenous plaintiffs who for almost two decades have battled Chevron in one of the world's largest environmental litigations even exist, according to a legal brief asking an appellate panel to order the judge off a case involving the Ecuadorians because of his apparent bias against their lawsuit.
In a Writ of Mandamus found here and filed last week in New York before the Second Circuit Court of Appeals, the Ecuadorians accuse federal Judge Lewis A. Kaplan of "deep-seated antagonism" toward their lawsuit and note that Kaplan has suggested they don't exist by repeatedly using phrases like "so-called Lago Agrio plaintiffs" in his written decisions.
The latest filing notes that Kaplan has said that the entire Ecuador lawsuit – which included an eight-year trial in Ecuador that produced 220,000 pages of evidence – is only a "game" brought about by the "imagination of American lawyers" trying to solve the "balance of payments" problem of the United States. James Tyrrell, a lawyer at Patton Boggs who represents the Ecuadorians, wrote in the Writ: "In light of the fact Judge Kaplan believes the Lago Agrio litigation to be a 'game' that has sprung from the 'imagination of American lawyers' it is not surprising that he openly doubts the bona fides, and, in fact, the very existence of the Ecuadorian plaintiffs."
"From the beginning, Judge Kaplan has been careful to qualify his reference to the Ecuadorian plaintiffs with the derisive modifier 'so-called' lest he advertently confer any semblance of legitimacy on these people," Tyrrell wrote in the Writ.
Tyrrell also noted that Kaplan, in a written order, described the Ecuadorian plaintiffs as "a number of indigenous peoples said to reside in the Amazon rainforest."
When the Ecuadorians and their attorneys indicated to the court that they took offense on Kaplan's insistence on questioning their existence by using the modifier "so-called", the judge only became "emboldened" and featured the same disparagement in his subsequent order denying his own recusal, wrote Tyrrell.
"Indeed, in an act of apparent spite wholly inconsistent with any notion of detached impartiality, the first six words of Judge Kaplan's Recusal Memorandum Opinion are 'the so-called Lago Agrio plaintiffs,'" wrote Tyrrell.
Lago Agrio is the small town that from 1964 to 1992 was the headquarters for Chevron's vast operations in Ecuador's Amazon, which included hundreds of well sites and oil production facilities covering an area of rainforest the size of Rhode Island. The Ecuador court, in a 188-page decision issued on Feb. 14, found that Chevron discharged billions of gallons of toxic waste into streams and rivers, decimating indigenous groups and causing an outbreak of cancer and other oil-related diseases that today threaten thousands of people.
A judge in Ecuador, Nicolas Zambrano, found Chevron liable for roughly $18 billion in clean-up costs and punitive damages, the latter stemming from the misconduct of Chevron's lawyers during the trial. Chevron's lawyers had fabricated security threats to delay the trial, repeatedly filed frivolous motions, and threatened judges with criminal prosecution and jail time if they did not rule in favor of the company.
In three collateral actions against the Ecuador judgment filed by Chevron in New York federal court, all of which are being overseen by Kaplan, the judge has opined about the underlying litigation in Ecuador which clearly show he has made up his mind about key factual issues without holding a hearing and after denying the Ecuadorians the opportunity to submit evidence, according to the Writ.
(A Writ of Mandamus is a procedural mechanism used in extraordinary circumstances to ask an appellate court to order a lower court to take some sort of corrective action – in this case, the recusal of a biased judge.)
The Writ accuses Kaplan of denying due process to the Ecuadorians and Steven R. Donziger, their longtime U.S. counsel; of trying to rule on important factual issues already decided by the court in Ecuador; of denying the Ecuadorians and their counsel the opportunity to present evidence about Chevron's misconduct and fraud; of overstepping his judicial authority by claiming worldwide jurisdiction over the Ecuador judgment; and of mocking the Ecuadorians and their country's judicial system.
Karen Hinton, the spokesperson for the Ecuadorians, took issue with the judge's characterizations.
"The idea that a U.S. federal judge appears to be going out of his way to taunt indigenous groups who against all odds have sued a giant oil company should be terrifying to anybody who believes in the concept of impartial tribunals or who cares about the credibility of the U.S. federal judiciary," said Hinton.
Hinton said her clients are "baffled" by Kaplan's apparent spite toward them but also don't want to be distracted by what they consider to be a sideshow to the actual litigation.
The Ecuadorian plaintiffs include members of several farmer communities and indigenous groups in Ecuador, including the Cofan, Secoya, Siona, Huaorani, and Quichua, said Donziger, who has represented them since the action was filed in New York in 1993. In 2002, a U.S. judge shifted the trial to Ecuador at Chevron's request after the company praised Ecuador's court system and said the country would be a more appropriate forum.
Contrary to Kaplan's suggestion, the existence of the 47 named Lago Agrio plaintiffs in the Ecuador litigation has been verified not only by the fact they signed the lawsuit in Ecuador but also by many international media outlets that have interviewed them – including The New York Times, Wall Street Journal, Washington Post, The Guardian (U.K.), 60 Minutes, Nightline, and National Public Radio.
The Lago Agrio plaintiffs also have hosted several politicians and celebrities who support their cause, including Trudie Styler (wife of Sting), human rights advocate Bianca Jagger, actress Darryl Hannah, and U.S. Rep. James McGovern, chair of the Human Rights Caucus in the U.S. House of Representatives. McGovern, in a letter to President Obama, described a "terrible humanitarian and environmental crisis" in the area where Chevron operated in Ecuador.
"It is past time for those responsible for this contamination to step up to the plate and be held accountable," wrote McGovern to the U.S. President. The full letter may be downloaded here.
Both sides are appealing the judgment in Ecuador. Kaplan has scheduled a trial for November on whether the Ecuador judgment can be enforced, but the Ecuadorians are seeking a stay of the proceeding on the grounds that such a trial has no legal basis.
The Ecuadorian plaintiffs reject the jurisdiction of the U.S. court and believe they can lawfully seek to enforce a judgment against Chevron anywhere in the world where the oil giant has assets, said Hinton.