Chevron’s going all-out in its lawsuit against the Ecuadorian plaintiffs and their lawyers who’ve sued Chevron over environmental devastation in the Amazon. The company wasted no time in asking for a temporary restraining order (TRO) and preliminary injunction preventing the plaintiffs and their lawyers from enforcing an Ecuadorian judgment or attaching Chevron’s assets.
Today, Judge Kaplan, the federal judge presiding over the case, granted a 14-day TRO and an expedited schedule for a hearing about a preliminary injunction. This was no surprise; last week Judge Kaplan issued an “order to show cause” (OSC) which basically said that Chevron had made a good case for a TRO and the Ecuadorians needed to prove why it should not issue.
It’s not clear, though, how Chevron’s made an adequate showing as to why it needs these emergency orders. The Ecuadorian court has not issued any kind of judgment against Chevron, and it’s not clear when such a judgment will be issued. As far as I know, the plaintiffs have not tried to attach any of Chevron’s assets.
Under Rule 65 of the federal rules, the judge is only supposed to issue a TRO if Chevron is facing “immediate and irreparable injury, loss, or damage.” It’s highly questionable whether Chevron’s actually met this standard.
Furthermore, Chevron’s supposed to pay “security” to the court–such as a bond–that would be sufficient to cover the plaintiffs’ losses if it turns out the TRO was issued improperly. So far I haven’t seen any indication that Judge Kaplan is going to require this.
Nor is it even clear what the legal impact of Judge Kaplan’s ruling is. The TRO rules don’t give the court jurisdiction over anyone that it wouldn’t otherwise have. So it doesn’t answer questions about why the Ecuadorians, or most of their lawyers, would be subject to the jurisdiction of a New York federal court. Almost none of the people that Chevron has sued have actually showed up in Kaplan’s court yet, which could be a strategy to fight the court’s jurisdiction.
But Steven Donziger, a longtime lawyer for the Ecuadorians, did send a letter to the court that indicated that the Ecuadorian’s first strategy is to move the case away from Kaplan–he noted, like I did in my earlier post, that it created the appearance of impropriety for Kaplan to preside over a case that he had basically suggested to Chevron that they file. (Donziger’s about the only one that is unquestionably subject to the court’s jurisdiction, since his office is in New York.)
And the plaintiffs are fighting back. They have a huge law firm, Patton Boggs, on their side, too. Patton Boggs just filed claims against both Chevron and its law firm, Gibson Dunn–this time in a different federal court, in Washington, D.C.
The Patton lawsuit was originally filed in November, but only sought a declaration that the firm did not have a conflict of interest in representing the Ecuadorians. The new charges in the suit allege that Gibson and Chevron are trying to interfere with Patton’s relationship with its Ecuadorian clients, by making unfounded allegations that Patton should be disqualified from representing them.
My guess is that this is only the first in a series of countermeasures that the Ecuadorians have planned. One thing is certain: the Ecuadorian plaintiffs will not be out-gunned or intimidated by Chevron’s legal tactics.