Kiobel v. Cravath, Swaine & Moore, LLP

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December 2, 2018

Kiobel v. Cravath, Swaine & Moore, LLP

A continued search for justice: Shell’s alleged complicity in torture and executions is challenged in the Netherlands

Country:

Nigeria, the Netherlands

Case Status:

Closed

Issues:

Corporate Accountability, Extractive Industries, EarthRights Defenders

Harms:

Torture, Summary Execution ,

Summary

When the Ogoni people of Nigeria organized in protest of Shell’s oil operations in the Niger Delta, Shell worked with the Nigerian military to crack down on the Ogoni. Nigerian soldiers used deadly force and massive, brutal raids against the Ogoni people throughout the early 1990s to repress a growing movement against the oil company. This crackdown culminated in the execution of nine Ogoni leaders, known internationally as the “Ogoni Nine,” on November 10, 1995.

After fleeing Nigeria in 1996, Esther Kiobel, the wife of Dr. Barinem Kiobel (one of the Ogoni Nine), fled to the United States. In 2002 she filed a class action lawsuit under the Alien Tort Statute in federal court in the Southern District of New York. In an earlier, related action, ERI represented the family members of Ogoni Nine member Ken Saro-Wiwa and other survivors in a lawsuit, Wiwa v. Royal Dutch Petroleum (Shell), which ended in a landmark settlement in 2009. Unlike in Wiwa, however, Esther Kiobel’s case continued through the courts, only to be dismissed for jurisdictional reasons by the U.S. Supreme Court in 2013.

As one final means of obtaining justice, in 2017 Ms. Kiobel filed a civil action in the Netherlands—home of Royal Dutch Shell—based on the same claims. Critical to winning her case in the Netherlands is evidence discovered during the U.S. Wiwa and Kiobel cases. Although this evidence was available to Ms. Kiobel during her U.S. lawsuit, she was required to return or destroy it when her case was thrown out of U.S. courts. This critical evidence still exists in the possession of the law firm that represented Shell in the U.S. litigation: Cravath, Swaine & Moore, LLP. In order to assist in re-obtaining these documents, ERI filed a petition pursuant to the Foreign Legal Assistance (FLA) Statute, 28 U.S.C. § 1782, in the Southern District of New York on Ms. Kiobel’s behalf.

Netherlands Case:

After having her case thrown out of the United States, Esther Kiobel turned to Dutch courts for a final means of obtaining justice. In 2013, Dutch attorneys at the Amsterdam-based law firm, Prakken d’Oliveira decided to take on Ms. Kiobel’s case, and sent notice to Shell of her claims. The firm also has a case against Shell arising out of oil pollution in Ogoniland, but the claims in Ms. Kiobel’s Dutch case are similar to the claims she made in the United States: she seeks to hold Shell liable for the summary executions of her husband in 1995. In June 2017, Prakken d’Oliveira commenced proceedings in the Netherlands by serving a writ of summons on Shell defendants.

Petitioner:

Esther Kiobel, widow of Ogoni Nine member, Dr. Barinem Kiobel.

Ms. Kiobel herself was whipped, sexually assaulted, and detained without food, water, or other basic necessities for weeks when she tried to bring food to her husband at a detention camp.

Respondent:

Cravath, Swaine & Moore, LLP.

Cravath, Swaine & Moore, LLP is a law firm based in New York City. The firm previously represented Shell during the course of Kiobel’s U.S. litigation, and holds documents that may prove critical to Kiobel’s Netherlands-based civil action. Cravath appeared on behalf of itself at the district proceedings. Hogan Lovells additionally represented Cravath during appellate proceedings.

Partners

In addition to EarthRights International, counsel for the plaintiff at the district level included Benjamin Hoffman of the Columbia Law School Human Rights Clinic. Counsel for the Esther Kiobel in the Netherlands is Channa Samkalden of Prakken d’Oliveira—a Dutch law firm.

Timeline

2013

Over ten years after she originally filed her case, the U.S. Supreme Court dismissed Esther Kiobel’s lawsuit against Shell for extraterritoriality reasons. In a continued effort to achieve justice, Kiobel turned to courts in the Netherlands—Shell’s home jurisdiction—to pursue her claims. Human rights attorneys at Prakken d’Oliveira in Amsterdam took up her case, and in December 2013, Channa Samkalden of Prakken d’Oliveira issued a liability letter to Shell to put it on notice of Ms. Kiobel’s claims against it for involvement in the criminal trial leading to the 1995 execution of her husband, Dr. Barinem Kiobel.

2016

ERI, on behalf of Esther Kiobel, returned to the same federal court where Kiobel filed her original U.S. litigation, and submitted a petition pursuant to 28 U.S.C. § 1782 to serve a subpoena on Cravath—Shell’s U.S.-based law firm—to obtain discovery for use in her then-contemplated proceedings in the Netherlands against Royal Dutch Shell. As defense counsel for Shell during the litigation proceedings that took place in the United States, Cravath retained custody of documents and deposition transcripts that were produced during the course of that litigation—documents that would be critical to Ms. Kiobel’s ability to bring successful claims in the Netherlands.

In an order from the bench during oral argument, Judge Alvin K. Hellerstein granted Ms. Kiobel’s petition to obtain the documents for use in her Dutch proceeding, pursuant to working out the terms of a confidentiality order.

2017

After the parties negotiated a confidentiality order to govern the exchange of documents, and Judge Hellerstein formally issued an opinion and order granting Kiobel leave to subpoena Cravath and ordering Cravath to produce documents, Cravath decided to appeal Judge Hellerstein’s decision.

Judge Hellerstein agreed to stay production of the documents pending outcome on appeal at the Court of Appeals for the Second Circuit.

On July 10, a three-judge panel of the Second Circuit Court of Appeals blocked a lower court’s decision to allow Ms. Kiobel to use the evidence from the U.S. case in her lawsuit against Shell in the Netherlands.

On July 24, we filed a petition for rehearing.

On November 28, we filed a petition for certiorari with the Supreme Court, seeking to overturn a decision that prevents Esther Kiobel from using the evidence from years of U.S. litigation to seek justice in the Netherlands.

In January, the Supreme Court denied our cert petition.

Legal Issues

ERI believes that this case presents a straightforward application of the Foreign Legal Assistance statute, 28 U.S.C. § 1782, involving documents in the U.S. that are unquestionably relevant to prove the claims in foreign litigation. Cravath has raised a number of objections on appeal, which are currently being considered by the U.S. Court of Appeals for the Second Circuit.