WASHINGTON, D.C., Dec. 14 /CSRwire/ – Indigenous peoples and farmer communities from Ecuador are demanding that the U.S. Department of Justice (“DOJ”) act on overwhelming and undisputed evidence that Chevron and its outside law firm Gibson Dunn conspired to fabricate evidence to try to undermine a $9.5 billion environmental judgment against the company, according to representatives of the groups.
In a letter sent in November to the DOJ and three separate U.S. attorneys, the Ecuadorians presented evidence that Chevron bribed a key witness with at least $2 million in cash and benefits to present false testimony to a U.S. federal court to try to taint the Ecuador judgment and hinder enforcement actions to seize company assets in Canada and other jurisdictions. After being coached for 53 days by Chevron lawyers from the U.S. law firm Gibson Dunn, the witness – an admittedly corrupt former Ecuador judge named Alberto Guerra – testified falsely before a U.S. federal judge in a bench trial that the judgment against Chevron in Ecuador had been procured through bribery and that it had been ghostwritten.
The false Guerra testimony resulted in a decision by the U.S. trial judge (Lewis A. Kaplan) in favor of Chevron, contradicting 21 separate appellate judges in Ecuador and Canada who have affirmed the company’s underlying liability in Ecuador or rejected Chevron’s allegations, according to an analysis of court records. Chevron’s use of false testimony also seems to be backfiring against the company in Canada, where the Ecuadorian villagers have racked up three straight unanimous appellate court victories (including one from the Canada Supreme Court) in their campaign to force the company to pay its debt.
After Chevron accepted jurisdiction in Ecuador and litigated an eight-year trial there that ended 2011, the Ecuador court found that the company deliberately dumped billions of gallons of toxic waste into the rainforest when it operated more than 400 well sites (under the Texaco brand) from 1964 to 1992. The dumping decimated indigenous groups and caused an outbreak of cancer that has killed or threatens to kill numerous people, according to independent health studies cited by the court. Chevron filed the retaliatory U.S. case and paid for the false testimony to try to undermine the Ecuador court decision.
After testifying before U.S. judge Kaplan, Chevron’s star witness Guerra later admitted under oath in a separate arbitration proceeding that he repeatedly had perjured himself, as summarized in the criminal referral letter to the DOJ and in media reports (see here). Separately, a forensic computer examination by noted international expert J. Christopher Racich demonstrated that Guerra’s claim that the judgment was ghostwritten was “abjectly false”, according to evidence presented to the DOJ, said Patricio Salazar, the Ecuadorian lawyer for the affected communities.
“Uncovering Chevron’s fraud before a U.S. federal court is a monumental development suggesting a criminal conspiracy orchestrated in the company’s executive suites and carried out by its outside counsel,” said Salazar. “The lives of thousands of Ecuadorians hang in the balance while a major U.S. oil company appears to think it can use its political influence to get away with bribery and fraud to avoid paying to clean up the massive pollution it caused. The U.S. Department of Justice should and must act.”
U.S. Judge Kaplan has refused to set aside his decision in favor of Chevron despite proof of Guerra’s perjury. The only U.S. appellate court to review the Kaplan decision also refused to consider the new evidence. Kaplan himself made several biased statements in favor of Chevron during the trial – noted lawyer John Keker accused the judge of letting the matter degenerate into a “Dickensian farce” to help the oil major – and the judge also held undisclosed investments in the company while presiding over the case.
The letter to the DOJ, sent by Steven R. Donziger, the longtime U.S. legal advisor to the Ecuadorians, follows the issuance of a 33-page report outlining how Chevron and its lawyers distorted key evidence when the company obtained the “racketeering” judgment to try to immunize the company from the environmental liability in Ecuador. The report is called Chevron’s RICO Fraud: An Abuse of Indigenous Peoples, the Environment, and U.S. Courts.
Written by lawyers for the Ecuadorian rainforest communities, the report rebuts 12 false or distorted findings by Kaplan in Chevron’s RICO case. Chevron is now trying to force Donziger – a solo practitioner — and the impoverished Ecuadorian villagers to pay $33 million for part of the company’s legal fees which includes the work involved in creating the fraud, said Donziger. Chevron recently also tried to impose a $1 million costs order on the villagers in Canada in an effort to block the enforcement action in that country.
“Lacking any valid argument on the merits, Chevron is now trying to use its financial muscle to intimidate and silence its critics,” said Donziger. “It just makes the Ecuadorians and their lawyers more determined to hold the company accountable for its abuse of indigenous peoples in Ecuador.”
Chevron’s RICO Fraud also focuses on how the false testimony from the paid-for Chevron witness, Guerra, was honed in coaching sessions with Chevron lawyers that spanned weeks in a conference room in Gibson Dunn’s New York offices. Chevron is still paying Guerra a large salary, housing costs, health care and his personal income taxes while sequestering him in a secret location in the U.S., according to court records.
“The bottom line is that Chevron used the RICO case as a central component of a corporate racketeering scheme designed to retaliate against the rainforest communities and their counsel for holding the company accountable for its environmental atrocities,” said Donziger, who has offered his own detailed rebuttal to the RICO allegations. “The villagers did not commit racketeering; Chevron committed racketeering against the very people it poisoned and it used fake evidence and the U.S. courts to carry out its scheme.”
The criminal referral letter to the DOJ is being released after the U.S. Supreme Court was urged by dozens of law scholars, environmental groups, and human rights organizations to reverse Kaplan’s “racketeering” judgment in favor of Chevron given the Guerra fraud and the myriad other legal problems created by using the civil justice system to try to intimidate adversary counsel during an ongoing litigation, said Donziger. In an analysis on the Huffington Post earlier this year, Aaron Page, a lawyer for the communities, explained how easy it would be to establish a violation of federal criminal law that prohibits payments to witnesses. “This really isn’t a subtle or nuanced case,” wrote Page, citing Guerra’s attempt to get Chevron to “add a few zeroes” to the initial cash payment company agents gave him in a suitcase.
The report Chevron’s RICO Fraud also names some of the individuals at the Chevron law firm of Gibson Dunn who apparently were involved in the fabrication of evidence. The firm, in echoes of its current problems in the Chevron case, recently was sanctioned by the High Court of London for fabricating evidence to help frame a political opponent of a client who was President of the African nation of Djibouti.
Other amicus briefs presented to the U.S. Supreme Court (see here and here) argued that Judge Kaplan’s RICO decision violates international law and amount to an unconstitutional SLAPP-style lawsuit. SLAPP lawsuits are designed by corporate or government entities to harass political opponents and to silence criticism in violation of the First Amendment.
As evidence against it in Ecuador mounted, Chevron switched gears and began to attack the country’s courts while threatening the villagers with a “lifetime of litigation” if they persisted. “We will fight this until hell freezes over, and then fight it out on the ice,” said Chevron’s General Counsel, Charles James. Chevron has used at least 60 law firms and 2,000 lawyers to defend the company since the inception of the case.
Donziger, praised by the magazine Bloomberg Businessweek as a lawyer of “Herculean tenacity”, represented himself alone for several months in the RICO case against more than 100 lawyers at the Gibson Dunn firm. Donziger personally deposed Chevron CEO John Watson and other top company officials, but Judge Kaplan imposed a gag order preventing release of the transcripts.
(For more background on the corrupt acts committed by Chevron and Guerra that was ignored by the Second Circuit, see here and here. For background on the many procedural flaws in Judge Kaplan’s RICO proceeding, see here.)
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