I’ve been traveling a bit recently, so I haven’t been blogging about ongoing developments in the Chevron/Ecuador litigation and the Kiobel corporate human rights case. Below are updates on both.
Chevron in Ecuador: A Verdict, An Injunction, and New Corruption Evidence
As Jonathan noted a few weeks ago, the plaintiffs won an $8 billion verdict against Chevron in Ecuadorian court for contaminating the Amazon. On Monday of this week, however, federal judge Lewis Kaplan in New York issued a preliminary injunction that seeks to prevent the plaintiffs and their lawyers from enforcing the judgment. (This replaces the restraining order that I discussed earlier.)
But that’s not all. Although there have long been allegations that Chevron’s hands are not clean when it comes to the Ecuador case, some more hard evidence of improper conduct recently surfaced. California’s legal paper, the Daily Journal, reported yesterday that Chevron’s lawyers have been paying huge sums–between $170,000 and $340,000–to Diego Borja, one of the men who apparently tried to entrap the Ecuadorian judge into accepting bribes.
The Daily Journal article linked above requires a subscription, but it implicates Bob Mittelstaedt, the lead lawyer at Jones Day, one of the firms defending Chevron: “Mittelstaedt has been one of the partners facilitating Chevron’s payments to Borja.” Paying a witness beyond necessary costs is generally highly unethical for a lawyer, and potentially criminal. (Bob Mittelstaedt and Jones Day also defended Chevron in the Bowoto v. Chevron litigation.)
Kiobel: Petition Denied
As for Kiobel, the case in which the Second Circuit Court of Appeals found that corporations could not be sued for violating international human rights law, the plaintiffs filed a new petition for rehearing after the court denied their first petition.
This was a highly unusual move, but nothing about Kiobel is ordinary. As I noted earlier, the initial vote on rehearing was a 5-5 tie. Turns out, however, that under Second Circuit rules a judge’s eligibility to vote on rehearing is determined on the date that the rehearing order is published. (It’s IOP 35.1(b), for all you civil procedure geeks.) On February 4, 2011, when the order came down, there were actually eleven judges on the court, not ten–an Obama appointee, Raymond Lohier, was sworn in on January 3, 2011. But Lohier apparently didn’t, or wasn’t given the opportunity to, vote. So the plaintiffs asked the court to reconsider, hoping that Lohier’s vote would break the tie.
Unfortunately, for whatever reason, last week the Second Circuit refused to reconsider. So while the Second Circuit may yet rehear another case and reverse the Kiobel rule of corporate immunity, the Kiobel plaintiffs themselves basically have one option now, and that’s to try to get the Supreme Court to take the case.