What does superstar quarterback Tom Brady and a group of Ecuadorian indigenous tribes suing Chevron for massive oil contamination have in common?
They both had lawsuits heard in U.S. federal trial court and appealed to the Second Circuit Court of Appeals in Manhattan. That, however, is where any similarity ends.
Brady -- who only wants to play football -- got his decision from the appellate court only 4 weeks after oral argument.
The Ecuadorians, who only want to survive on their ancestral lands without being poisoned by oil waste?
They are still waiting, 64 weeks after their oral argument.
A ruling on whether a superstar football player, married to a superstar model, gets to play football appears to be more important than cleaning up toxic waste in the Ecuador rainforest.
The Ecuadorians' quest for justice began over 23 years ago when they sued Chevron for intentionally contaminating the Amazon rainforest where they literally live off the land.
Chevron and its legions of law firms have done everything in their power to smother the lawsuit in legal delays to block a $9.5 billion Ecuador judgment against the oil giant. The country's highest court upheld the judgment in a unanimous decision, in the forum where Chevron insisted the trial be held -- in Ecuador. In all, 18 consecutive appellate judges in Ecuador and Canada have ruled in favor of the villagers and against Chevron.
With the writing on the wall, Chevron still refuses to pay the judgment, which serves to further delay the case and force the Ecuadorians to try to seize the company's assets in other countries.
Justice delayed is justice denied but, hey, football season is about to begin.
I'm not so presumptuous to think this blog will have any impact on the timing of the 2nd Circuit ruling in the Ecuadorians' case. I also recognize legal arguments vary in complexity, but it's important for environmental advocates to take note of the difference in treatment. A valid argument can be made that a U.S. courtroom is the last place to look for justice when trying to hold a U.S. corporation accountable for environmental misdeeds in other countries.
For example, the Southern District Court of New York (the federal trial court in Manhattan) is largely responsible for making a legal mess of the original lawsuit against Chevron filed before U.S. Judge Jed Rakoff in 1993. In 2001, he ordered the case returned to Ecuador, over the objections of the indigenous groups. (Yes, it took eight years just to dismiss and move it to Ecuador.) The Ecuadorians argued their country's courtroom could not handle a mass tort case this complicated.
Since then six top-shelf corporate law firms, at the direction of Chevron, have used every legal trick in the book to slow down the case in Ecuador and grind it into quicksand.
This includes drowning the country's under-funded court system with motions, some of which were duplicates of earlier motions already ruled on, and bankrupting the Ecuadorians by filing related lawsuits against them in over two dozen jurisdictions across the U.S. See here and here. Finally in 2011 -- eight years later -- an Ecuador court ruled against Chevron.
Enter Gibson Dunn's Randy Mastro.
Leading the legal hordes is Mastro, now infamous for having been paid $8 million of taxpayer money to do a bogus "study" supposedly "exonerating" Governor Chris Christie in the Bridgegate scandal. Mastro and his team destroyed notes from his own investigation that produced no negative findings against Christie. Watchdog groups and some New Jersey electeds have questioned whether the cover-up of Bridgegate should be treated as a criminal conspiracy, involving the Governor, his staff, Gibson Dunn and specifically Mastro. (Gibson Dunn is earning quite a reputation; the High Court of England last year ruled the corporate law firm falsified evidence in another case.)
Mastro - who with great rhetorical flair accused poor Ecuadorian villagers and indigenous peoples living in the rainforest of a "criminal conspiracy" to shake down Chevron -- also was the man responsible for prepping the main witness in the U.S. "fraud" lawsuit against the Ecuadorians and their attorneys.
That witness, Alberto Guerra, spent a whopping 53 days being coached by Mastro and Gibson Dunn lawyer Avi Weitzman to get his story straight in federal court.
We know this because Guerra recently admitted under oath in a separate but related case that he lied about major portions of his testimony during the lower court trial in the Southern District, heard by U.S. Judge Lewis Kaplan.
In April 2015, Guerra admitted before an international arbitration panel he changed his story not once, but three times. These are Guerra's three stories:
Story No. 1: Guerra alleged the Ecuadorians' attorneys "ghostwrote" the Ecuador judgment and hired Guerra to edit it, which he said he did on his home computer. But when Chevron couldn't find the judgment on his computer, Guerra recanted.
Story No. 2: Actually, Guerra said, the verdict was on a flash drive that the Ecuador judge hearing the case gave him at the Quito airport. But when Chevron couldn't find the judgment on any flash drives, Guerra changed his story yet again.
Story No. 3: Actually, Guerra said, he traveled to the jungle on a bus and edited the judgment there on a laptop owned by one of the Ecuadorian attorneys.
As each story unraveled and evolved, Chevron agreed to pay Guerra more money for testimony the company desperately needed to hold up its "fraud" allegations. To date, Chevron has paid him at least $2 million in cash and benefits and moved him and his family to the U.S., in exchange for his testimony. He also is an admitted criminal, testifying under oath to taking numerous bribes in other cases before he was removed from the bench. Read this Courthouse News article for more background.
This information is in front of the 2nd Circuit, including an argument that a recent Supreme Court decision essentially nullifies Chevron's entire case.
Chevron and Mastro put many, if not all of their eggs, in the Guerra basket that now has large holes in it, threatening to sink Chevron's entire retaliation strategy.
Perhaps like Brady's football, Mastro's argument has been deflated. The Second Circuit should take note. Hopefully, soon.