Chevron in Ecuador

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Donziger Defends Right to Jury in $19B Chevron RICO Trial

By Gavin Broady, Law360
4 October 2013

Attorney Steven Donziger on Friday fought back against an attempt by Chevron Corp. to secure a bench trial in its racketeering suit over a disputed $19 billion Amazon pollution judgment, saying the nature of the claims against him still entitle him to a jury trial.

Earlier this week, Chevron moved to drop monetary damage claims against the attorney in order to shift the impending October 15 trial before U.S. District Court Judge Lewis Kaplan. Donziger argued on Friday that the claims asserted by Chevron are nonetheless fundamentally legal rather than equitable despite the remedy being sought, and he is therefore still empowered by the Constitution to have those claims heard by a jury.

Donziger claims his right to a jury trial is further supported by Chevron's purported use of the "quasi-criminal" underpinnings of the Racketeer Influenced and Corrupt Organizations Act to smear him and his Ecuadorean co-defendants, whom the oil giant has accused of engineering the contested judgment through bribery, extortion and fraud.

"Chevron's claims, even after its historic reversal on money damages, are still founded on legal claims and factual issues that require jury consideration and determination," Donziger said. "And allowing Chevron to escape a jury now, after 2 1/2 years of intentional stigmatization of defendants as criminals, would clearly violate defendants' Seventh Amendment rights and raise serious due process concerns."

The dispute concerns an unprecedented award entered by an Ecuadorean court over damage from crude oil purportedly dumped in the Amazon by Texaco Inc., which merged with Chevron in 2001. Donziger represented a group of indigenous Ecuadorean plaintiffs who claim the pollution caused residents to develop cancer and destroyed natural resources.

Donziger's efforts to secure a declaration of his right to a jury trial – even if it could mean facing billions in damages – are unsurprising given his repeated accusations of impartiality against Judge Kaplan. On Friday, he noted that he believes the judge's biases are obvious and well-documented and that the outcome of any bench trial put before him would therefore be "entirely predictable."

The defendants even went to the Second Circuit in March in a bid to have Judge Kaplan replaced, but the appellate court refused their efforts late last month.

The long-running dispute, originally filed in February 2011, has seen a recent flurry of legal maneuvering as the trial date draws near, kicked off by Chevron's move in early September to drop monetary damage claims against the named Ecuadorean defendants.

The company moved to do the same with respect to Donziger this week, saying the litigation has always been about proving that the judgment against Chevron in Ecuador was procured through fraud and stopping the alleged perpetrators from profiting from it.

Donziger argued on Friday that the order being sought by Chevron barring the Ecuadoreans from collecting on the judgment is "obviously and perilously close" to the type of injunctive relief previously rejected by the Second Circuit in January 2012, when it struck down a court decision barring the original Ecuadorean plaintiffs from enforcing the judgment anywhere in the world.

"Out of the hat of a highly controversial third-party state law fraud claim, Chevron wants this court to magically pull out a global injunction that would not only have the same practical effect ... but in so doing would raise exactly the same comity concerns," Donziger said.

The Ecuadoreans who originally sued the company have sought to enforce the disputed judgment via asset freezes around the globe that have proven largely unsuccessful to date.

While they secured a freeze on Chevron assets in Argentina last November, the country's Supreme Court lifted that freeze in June after determining that the oil giant's Argentine subsidiaries were not party to the Ecuadorean litigation.

Efforts to secure the judgment in Canada were also dealt a blow earlier this year when an Ontario judge halted efforts in May to seize Chevron assets in Canada after determining that subsidiary Chevron Canada was sufficiently independent and not party to the Ecuadorean dispute.

A representative for Chevron declined to comment on the filing Friday.

Chevron is represented by Randy M. Mastro, Andrea E. Neuman and William E. Thomson of Gibson Dunn.

Donziger is representing himself in the litigation.

The case is Chevron Corp. v. Steven Donziger et al., case number 1:11-cv-00691, in the United States District Court for the Southern District of New York.