Reuters blog archive
from Alison Frankel:
Regardless of what you think of the business of litigation funding, it's here to stay. There are now hundreds of millions, if not billions, of dollars of capital invested in commercial litigation and arbitration in the United States, Britain and Australia, and some of the biggest litigation funding firms in the United States have begun to show a good enough return for their investors to justify the risk of taking sides in inherently lengthy and uncertain cases. Business groups that oppose investment in litigation tried mightily, but they simply haven't managed to stem the industry's steady spread, either through legislation or regulation.
For leading litigation financiers, the most significant impediment to growth is probably vestigial suspicion of their business by the big companies and major law firms they want to partner with. That's why a newly released unredacted version of a filing by Patton Boggs in Chevron's Manhattan federal court fraud litigation against the onetime lawyer for Ecuadorians with a $19 billion judgment against the oil company is so interesting. (Ted Folkman at Letters Blogatory was the first to spot the unredacted filing.)
The Patton Boggs brief addresses the relationship between the law firm, which is counsel to the Ecuadorian claimants in some of the multipronged litigation between them and Chevron, and Burford Capital, which once invested in the Ecuadorians' case but has since alleged that it was deceived into taking part in the litigation. Precisely what Burford knew, and when it knew it, is yet another treacherous cul de sac on the long and ugly road of the Chevron litigation; Burford principal Christopher Bogart and Chevron itself present an abundance of contemporaneous evidence to rebut Patton Boggs's premise that Burford knew more about flaws in the Ecuadorians' case than Bogart said in a declaration to U.S. District Judge Lewis Kaplan in April. But the newly released brief quotes internal Burford communications showing the funder's fear that the taint of its investment in the Chevron litigation would hurt not only its prospects but those of the entire litigation finance industry.
In case you don't recall, Burford co-founder Bogart made a splash this spring when he filed his declaration, which described how Patton Boggs and Steven Donziger - the New York lawyer who championed the Ecuadorians' environmental claims against Chevron for years, until Chevron lawyers at Gibson, Dunn & Crutcher revealed such allegedly illicit tactics as bribing Ecuadorian judges - had falsely assured Burford about the legitimacy of the case in Ecuador. Bogart's declaration was rightly regarded as a boon to Chevron, a repudiation of the Ecuadorians and their advisers by another of their onetime supporters.
from Stories I’d like to see:
The Hagel fiasco:
I can’t get Defense Secretary-designate Chuck Hagel’s awful Jan. 31 Senate confirmation testimony out of my head. I went back last week and watched most of it again. It was stunning, by far the worst performance by a high-level appointee I’ve ever seen or heard about. I’m not referring to Hagel’s gaffes, though there were some. I’m talking about pretty much everything he said after he read his opening statement. He seemed – is there a nice way to say this? – stupid.
Yet from what I’ve read, those who know him say he is far from stupid. I spent an hour interviewing him about 10 years ago and he seemed pretty sharp ‑ though it was for a profile of a friend of his, so the questions were hardly challenging.
from Alison Frankel:
On Monday, Chevron filed a new motion for summary judgment in its fraud and racketeering case against the lawyers and expert witnesses who helped 47 Ecuadoreans from the Lago Agrio region of the rainforest obtain an $18 billion judgment against the oil company from an Ecuadorean court in 2011. The motion discloses what seems to be incredibly powerful evidence that the Ecuadorean judgment was illegitimate: A onetime presiding judge on the Ecuadorean case, Alberto Guerra, submitted a declaration asserting that he acted as the middleman in setting up a $500,000 bribe from plaintiffs' lawyers to the Ecuadorean judge who entered the judgment against Chevron. Guerra claimed that the plaintiffs actually drafted the 2011 judgment and that he, as a behind-the-scenes ghostwriter, worked with plaintiffs' lawyers to make it seem more like a court ruling. According to his declaration, filed before U.S. District Judge Lewis Kaplan of Manhattan, Guerra had previously received regular payments from the plaintiffs in the Chevron case to ghostwrite other rulings subsequently issued by the presiding judge. And, to boot, Guerra asserted that Chevron -- unlike the plaintiffs -- didn't respond to his solicitation of bribes.
Chevron filed additional new evidence to back Guerra's declaration, including draft versions of the 2011 judgment found on the former judge's computer, mail and bank records showing his contacts with the plaintiffs and sworn statements by other witnesses supposedly involved in the bribery scheme. "Guerra's testimony and corroborating evidence confirm what the extensive overlap between the (plaintiffs') internal files and the judgment already prove: that the (plaintiffs) corrupted the Ecuadorean court and wrote the $18 billion judgment against Chevron," wrote the oil company's lawyers at Gibson, Dunn & Crutcher.
By Christopher Swann
The author is a Reuters Breakingviews columnist. The opinions expressed are his own. Exxon Mobil’s reticence to come clean about fracking makes Chesapeake Energy look good. That’s a rare feat - and hardly one to brag about. The troubled gas firm is infamously opaque. But its openness on the risks of fracking puts larger rivals like Exxon Mobil and Chevron to shame. After another large minority vote from investors for more information on this controversial practice, Big Oil should follow its troubled cousin’s lead.
from Alison Frankel:
It's been relatively easy for district courts to figure out how to apply the U.S. Supreme Court's 2010 ruling in Morrison v. National Australia Bank in securities cases – unless the defendant is a U.S.-listed company, shareholders are pretty much out of luck in U.S. courts. Post-Morrison racketeering litigation has no such conveniently bright lines. The Racketeer Influenced and Corrupt Organizations Act doesn't explicitly mention that it applies to overseas conduct, so under Morrison judges must presume it does not. But they've struggled to define exactly what constitutes overseas racketeering as opposed to domestic racketeering with an international component.
After all, as U.S. District Judge Lewis Kaplan of federal court in Manhattan noted in a ruling last week, RICO was originally intended to combat international organized crime rings. Kaplan is presiding over Chevron's RICO case against the U.S. lawyers and experts who helped Ecuadoreans obtain an $18 billion judgment against the oil company. His ruling cites the Southern District's famous Pizza Connection prosecution, which involved Mafia drug trafficking between Sicily and New York, as a RICO paradigm. "To say that Congress did not intend RICO to apply unless the enterprise in question was purely domestic would be unsupportable," Kaplan wrote.
By Christopher Swann
The author is a Reuters Breakingviews columnist. The opinions expressed are his own.
Exxon Mobil shareholders may feel a warm glow when reading Steve Coll’s history of their firm. “Private Empire” reveals the company’s single-minded devotion to investors and shows that it has helped the oil giant earn world-beating returns. But other readers will be struck by the downside of this obsession.
from The Great Debate:
A truly bizarre international incident has gone largely unnoticed, even though it is one of the most shameless shakedowns of an American company by another country in recent memory. What is happening now in Brazil could easily scare off U.S. companies that may be looking to do business overseas.
What happened was that a small amount of oil seeped from cracks in the ocean floor near an oil well that was operated by Chevron off Brazil’s coast. This oil seep occurred some 200 miles offshore, was successfully stopped in four days, has been fully contained, and caused no harm to the environment, wildlife or human health. The amount of oil that leaked from the cracks in the ocean floor was less than 0.1 percent the size of the BP spill in the Gulf of Mexico.
from Alison Frankel:
It's been all of three weeks since U.S. District Judge Lewis Kaplan of Manhattan federal court lifted a stay on Chevron's fraud and racketeering suit, which was filed in 2010 against the Ecuadoreans who accuse the oil company of contaminating the Lago Agrio region of the rainforest as well as the Ecuadoreans' lawyers and advisers. But the two sides in this corollary to the endless litigation that produced an $18.2 billion judgment against Chevron in the Ecuadorean courts have picked up as though they never left off. This week Chevron filed a motion for partial summary judgment and renewed its motion for an attachment order that would effectively block the Ecuadoreans from enforcing their award. Lawyers for the RICO defendants, predictably, have responded with accusations of dirty tricks against Chevron and its counsel at Gibson, Dunn & Crutcher.
Chevron's summary judgment motion, which asks Kaplan to reject collateral estoppel defenses based on findings in the Ecuadorean courts, is mostly a reformulation of arguments that have become all too familiar to anyone who follows the litigation. So I'll focus on the new attachment motion, which includes some information we haven't seen before. In January, you may recall, Kaplan denied Chevron's request for a highly unusual pretrial order that would essentially have frozen the assets of the RICO defendants in anticipation of a Chevron victory and damages award in the New York case. The judge said that Chevron hadn't sufficiently specified its alleged damages, aside from citing the $18.2 billion Ecuadorean judgment. "In these circumstances, Chevron has not demonstrated a likelihood of recovering any specific amount of damages," Kaplan wrote. But he invited Chevron to come back when it had firmer evidence of its potential damages.
from The Great Debate:
On Feb. 28, the U.S. Supreme Court will hear arguments in Kiobel v. Royal Dutch Petroleum. The case is about Shell’s alleged complicity in torture and extrajudicial killings committed by the Nigerian military in the mid-1990s, and is expected to determine whether corporations can be sued in the U.S. for their involvement in human rights abuses abroad.
Corporate lawyers and plaintiffs’ attorneys alike are eagerly awaiting the outcome. If the Supreme Court upholds corporate liability, as federal courts have in the past and the Obama administration is encouraging the High Court to do, other lawsuits will surely follow -- against Apple for labor abuses in its Chinese manufacturing base, for example.
from Alison Frankel:
In last week's rejection of Chevron's attempt to use U.S. courts to block enforcement of the Lago Agrio plaintiffs' $18 billion Ecuadorean judgment, the U.S. Court of Appeals for the Second Circuit was clearly uneasy at the idea of American judges interfering with foreign jurisprudence. So far, the arbitration panel overseeing Chevron's case against the Republic of Ecuador has had no such qualms. But with Chevron now relying heavily on the arbitration process to protect it from plaintiffs' attempts to claim oil company assets, the panel's power over foreign courts is going to become a key issue -- and the Ecuadorean plaintiffs are now calling for the U.S. government to support Ecuador's sovereignty. Chevron, meanwhile, argues that if anyone has caused harm to Ecuador's constitution, it's the Republic and the Lago Agrio plaintiffs, not Chevron and the arbitration panel.
The three-person arbitration panel, appointed under the terms of a bilateral investment treaty between the United States and Ecuador, is presiding over Chevron's claim that the Republic of Ecuador is liable for any judgment in the Lago Agrio litigation. (The argument is two-fold: Chevron asserts that it has been denied due process, in violation of the investment treaty, and that the Republic signed an indemnification agreement years ago with its predecessor, Texaco.) The arbitrators don't have jurisdiction over the individual Ecuadoreans suing Chevron, but they do have power over the Republic. Last spring, following U.S. District Judge Lewis Kaplan's imposition of a worldwide injunction barring enforcement of the Ecuadorean trial court's judgment against Chevron, the arbitration panel issued an interim order instructing the Republic to "take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment against in the Lago Agrio case."