By Jessica M. Karmasek, Legal Newsline
7 September 2011
New York – The Ecuadorian plaintiffs suing Chevron Corp. are yet again asking a federal judge to recuse himself from a case involving a multibillion-dollar judgment against the oil company in Ecuador.
The plaintiffs filed a petition with the U.S. Court of Appeals for the Second Circuit on Friday, asking it to issue a writ of mandamus to the U.S. District Court for the Southern District of New York directing Judge Lewis Kaplan to remove himself from the case.
The Ecuadorians take issue with, among other things, Kaplan's recent order compelling petitioners Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, who are residents of Ecuador's Amazon region, to travel to New York for depositions.
Kaplan agreed with Chevron's assertion that New York is the most convenient location for the depositions.
"Judge Kaplan disregarded the fact that Chevron's current statements are shamelessly at odds with the representations it made to wrest jurisdiction away from the Southern District of New York in the first place," the Ecuadorians wrote.
In February, an Ecuadorian court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups. Damages were found to be up to $18 billion.
Chevron filed a racketeering lawsuit, alleging that the Ecuador suit has been used to threaten the oil company, mislead U.S. government officials, and harass and intimidate its employees – all to extort a financial settlement from the company.
In March, Kaplan issued an injunction blocking worldwide enforcement of the judgment. That ruling is under an expedited appeal before the Second Circuit, with arguments set for this month.
In their petition, the Ecuadorians argue that Chevron asserted, after Texaco and it merged in 2001, that its dispute with the residents of Amazon basin should be litigated in Ecuador and not New York.
The Ecuadorians say the oil company argued at the time that the named plaintiffs and class members would be obliged to travel to New York for trial and that the expense and inconvenience could be avoided by litigation in Ecuador.
The Southern District dismissed the litigation in favor of the Ecuador courts on the premise that the dispute between Chevron and the Ecuadorians had "everything to do with Ecuador and nothing to do with the United States."
"That Judge Kaplan allowed Chevron to get away with its 180-degree turn is eye-opening enough, but the manner in which he did it demands this Court's attention," the Ecuadorians wrote in their new petition.
Chevron, the plaintiffs say, has taken out all the stops to defend its judge of choice.
"Chevron cannot explain or excuse Judge Kaplan's pride at purportedly having figured out the case from day one. Nor can Chevron explain how the Ecuadorian Plaintiffs can expect to receive fair treatment from Judge Kaplan when he is so clearly driven by a desire to inflict punishment on their lawyer, Steven Donziger, whom Judge Kaplan openly disdains," they wrote.
"In essence, Chevron's defense of Judge Kaplan boils down to its claim that the 'undisputed' evidence justifies his conduct."
The Ecuadorians argue that there has never been an evidentiary hearing or any other fair opportunity to challenge Chevron's claims.
"And Chevron's carefully-crafted narrative and 'evidence' often goes unchallenged only insofar as Judge Kaplan either explicitly excludes from consideration, or inexplicably ignores, any record evidence tending to cast doubt on Chevron's claim of victimization in Ecuador," they wrote.
Another example of the judge's bias, the plaintiffs say, is that he has enabled the oil company to smother them with discovery.
The Ecuadorian plaintiffs argue they have been given "the impossible task of prying evidence from the determined grip of Chevron and its army of lawyers in this hyper-accelerated proceeding in front of Judge Kaplan, in which we are generally occupied simply trying to stay afloat responding to the torrent of Chevron motions and letters, and adverse rulings, appearing on the docket each day."
In their petition, the plaintiffs go as far as to say that the proceedings before Kaplan have degenerated into a "ludicrous spectacle for which there is no place in a United States federal courthouse."
"It is not at all remarkable that a company that may face a sizeable judgment in a foreign court would deem that court unworthy of international respect. Yet Judge Kaplan is so taken in by this purportedly 'extraordinary' set of circumstances and the supposed public interest in protecting American companies like Chevron, that he has disregarded principles of limited jurisdiction and comity that ordinarily restrain federal courts," the Ecuadorians wrote.
The plaintiffs say Chevron claims they are unfairly painting Kaplan as a "rogue judge." But they say that is untrue.
"The Ecuadorian Plaintiffs are well aware that Judge Kaplan is an esteemed jurist. Nonetheless, the record speaks for itself," they wrote.
"Judge Kaplan clearly has pre-judged this action in favor of Chevron 'from the beginning,' and demonstrated a deep-seated bias against the Ecuadorian Plaintiffs."
They argue that they are entitled to a judge who:
- Does not believe that it is inherently distasteful for American plaintiffs' lawyers to enable them to sue an American company;
- Does not believe that the courts of a small, Latin American nation are unworthy of the presumptive deference that might be afforded to the courts of England;
- Does not so passionately detest their lead counsel that his desire to punish their lawyer deprives the client of any hope of success;
- Respects the rulings of a court even if they do not favor Chevron; and
- Does not hold such contempt for their country's judiciary that esteemed tribunals from other jurisdictions feel compelled to comment.
Friday's petition is not the first recusal request made by the Ecuadorians. The plaintiffs have asked the judge to step down from the case a handful of times now. Kaplan, himself, has refused to step down.
Kent Robertson, a spokesman for Chevron, said the company plans to file a reply to the petition.