By Nikolas Kozloff, The Huffington Post
20 January 2014
In a recent column, journalist Chris Hedges compares New Jersey governor Chris Christie to a "Third World despot." In a rhetorical flourish, Hedges writes that if the New Jersey governor ever becomes president "the corporate state's repression, now on the brink of totalitarianism, would with the help of Christie, his corporate backers and his Tea Party loyalists become a full-blown corporate fascism."
Hedges' article is a bit over the top and ideological at times, and it would be a mistake to equate Christie with some kind of "banana republic"-type dictator along the lines of Anastasio Somoza. Nevertheless, Christie's links to high-powered attorneys may stir uncomfortable memories for those who have been on the receiving end of the corporate stick in Latin America.
Recently, the New Jersey governor tapped well-known lawyer Randy Mastro to lead his political defense in the so-called "Bridgegate" scandal. A Republican attorney known for aggressive tactics, Mastro served as former New York Mayor Rudolph Giuliani's Chief of Staff and subsequently as the city's Deputy Mayor for Operations. He was also a member of John McCain's judicial steering committee during the 2008 presidential election.
The Nicaragua Legal Prototype
More recently, Mastro has been chairing a "crisis management group" in the powerful Gibson & Dunn Los Angeles-based law firm. The company has long been infamous for its defense of corporations and their foreign dealings. In one high-profile case, Gibson & Dunn rescued Dole Food from billions of dollars in damages based on allegations that the company had used pesticides which caused sterility and other harm to banana workers in Nicaragua. Turning the tables, Gibson & Dunn claimed that workers had lied about their medical condition in an attempt to defraud Dole, and the case was later dismissed.
Gibson & Dunn's strong-arm tactics, which are designed to distract attention away from the fundamental suffering of victims while attacking plantiffs, their lawyers and even the overall credibility of the justice system trying any given case, soon got the attention of corporate bigwigs over at Chevron. Ever since 2001, when the oil company had merged with Texaco, Chevron had been keen to figure out a way of evading its responsibilities for an earlier environmental mess in Ecuador. Perhaps, Chevron reasoned, Gibson & Dunn could help make pesky Ecuadoran indigenous peoples go away.
A Black History
In order to put Chevron's problems in context, we must go back in time some twenty years. According to Ecuadoran Indians, from 1964 to 1990 Texaco caused serious damage to human health and the environment by employing obsolete technology in drilling operations at hundreds of wells spread throughout the jungle. Indigenous peoples claim that contamination created a virtual "death zone" in an area the same size of the state of Rhode Island. Within the area, they say, local people have suffered from increased rates of cancer, leukemia, birth defects, and a variety of other medical problems.
In their original 1993 suit against Texaco, filed in U.S. Federal Court in New York, indigenous peoples alleged that the company spent three decades systematically polluting the rainforest while poisoning the water, air and land. In 2001, a New York court rebuked the Indians and dismissed the case, arguing that jurisdiction belonged to Ecuador. So, two years later close to 50 plantiffs filed a new suit in the Andean nation. In 2007, Ecuador increased damages to $27 billion based on an expert's report.
Attack Dog Résumé
By now facing huge penalties and perhaps regretting its earlier purchase of Texaco, Chevron would shortly turn in desperation to Mastro's firm Gibson & Dunn, a company which had earlier distinguished itself in the slightly similar Dole case in Nicaragua. Apparently Chevron CEOs were impressed with Gibson & Dunn's braggadocio up on the firm's website. The company crows for example that Mastro, "who wrestles like an alligator," is someone who will "fight you to the end" and really "you do not want to meet Randy down a dark alley."
Mastro, who cut his chops as a mob prosecutor, has made a career out of aiding America's most powerful companies including JP Morgan, Dow Jones, Bear Stearns, UBS and Lehman Brothers, while suing other organizations such as the Working Families Party for electoral violations. Soon, however, Mastro would take over the Chevron case and seek to prevent enforcement of an Ecuadoran judgment which sought to compel the company to clean up its environmental pollution of the Amazon rainforest.
Let's Get the Documentary Filmmaker
By 2009, Chevron was getting hit every which way by the mess in Ecuador. In addition to the hostile rulings in Quito, the company now had to contend with a PR disaster in the form of a new documentary film. Crude, which was produced by Joel Berlinger, tells the story of the Amazonian Indians' fight to get environmental justice.
Early on in the film, Pablo Fajardo, a lawyer representing indigenous peoples, accompanies a fact-finding delegation to toxic pits deep in the Amazon. Indignantly, he denounces Texaco for its environmental disaster while a judge and onlookers take in the scene. As the delegation moves from one sludgy pit to the next a Chevron lawyer does his best to attempt the impossible: there's no evidence, he claims absurdly, that the oil company is responsible for the mess that occurred long ago.
Irate over the film, which depicts Fajardo and U.S. plaintiff lawyer Steven Donziger in a favorable light, Chevron claimed that Crude actually showed efforts to threaten a judge in Ecuador while inflating damage estimates. Over at Gibson & Dunn, Mastro was now working on the Chevron case and came up with an ingenious strategy to handle the mounting PR fiasco. As a result of his own campaigning, Mastro boasts on the company web site, his firm succeeded in getting a ruling from the Second Circuit which ordered Berlinger to turn over outtakes of his film.
News organizations, including the Washington Post, viewed the court ruling with dread and trepidation. Concerned about the chilling effects of such developments, media outlets filed an amicus brief in the U.S. Court of Appeals in New York, arguing that surrendering the outtakes "severely undermines the continued vitality of a journalist's privilege" and "imperils not only the rights of the filmmakers before this Court but those of all who engage in news reporting and filmmaking, and ultimately all who read and view their efforts."
Maestro of the Vicious Counter-Attack
Meanwhile, amidst the brouhaha over Berlinger, Chevron was facing mounting pressure in Ecuador. In 2011, Judge Nicolás Zambrano awarded plantiffs $9 billion in damages, to be doubled unless Chevron paid up and promptly apologized. Predictably, Chevron refused while claiming that Texaco had long since cleaned up its share of the waste. Outrageously, Chevron then argued that the case constituted a fabrication spread by "environmental con men" seeking to enrich themselves by cutting into company profits.
In the wake of the 2011 Zambrano ruling, the case took another surreal turn. In an outlandish move, Mastro sought to cast doubt on the entire Ecuadoran judicial system and managed to obtain an injunction in New York federal court to block enforcement of any judgment throughout the entire world. In a column on the Huffington Post, U.S. spokesperson for Ecuador's indigenous peoples Karen Hinton wrote that the move was patently absurd.
"No U.S. court has jurisdiction over another country's judicial system," she says, "even when that system rules against a U.S.-based corporation that just happens to be responsible for the deliberate contamination of Ecuador's rainforest...Chevron wants a U.S. court opinion that says [Zambrano's Ecuadoran ruling] is wrong. But imagine a U.S. judge sitting in judgment of the decision of a British or German court and declaring it unenforceable and fraudulent. It would never happen."
Realizing that the company probably could not win its case on the merits, Mastro decided to change the nature of the debate entirely. In a rapidly unraveling kangaroo process, Mastro took advantage of a bizarre legal tactic which states that U.S. courts may force testimony to assist foreign courts. If Chevron prevailed, the U.S. would probably assist Chevron in defending against the Ecuadoran judgment in other countries where the plantiffs might seek to pursue the case.
Taking his cue from the earlier Nicaraguan Dole case, Mastro shifted the focus from pollution to attorney ethics. Through a calculated campaign of obfuscation, denial, personal attacks and claims of bias by the Ecuadoran legal system, Mastro sought to divert attention away from the suffering plaintiffs.
In a jarring development, Mastro served Patton Boggs, a U.S. firm working with the Ecuadoran Indians, with a subpoena to turn over millions of pages of documents relating to the case. The attorneys, Mastro charged, had concealed and promoted fraudulent information. The subpoena was served in connection with another Chevron civil suit filed against Donziger and Fajardo back in Ecuador.
In that suit, Mastro harked back to his mobster busting past, accusing the two lawyers of violating nothing less than the Racketeer Influenced and Corrupt Organizations Act or RICO. In a move reminiscent of the movie Donny Brasco, Mastro accused Donziger and the plaintiffs of racketeering and pushing an "extortionate case." Under RICO statutes, Mastro sought to prove that Donziger was a kind of kingpin in an illegal "enterprise" designed to extort money from Chevron. Speaking to the Washington Post, one prominent D.C. lawyer remarked "Randy is going at this the same way he would a mafia case."
Despite Patton Boggs' protests about attorney-client privilege, sympathetic New York federal judge Lewis Kaplan allowed Chevron to examine the firms' internal communications with the Indians. In yet another strange twist, Mastro then hauled Ecuadoran judge Zambrano into a New York court for cross-examination. Not stopping there, Mastro also questioned Donziger for good measure, who was forced to give over computer files, diaries and tax returns.
How long can this charade go on? Last year, Kaplan ordered a worldwide injunction against enforcement of the Ecuadoran judgment. That ruling, however, was thrown out by a Court of Appeals, and Patton Boggs has appealed to have Kaplan removed from the case. Meanwhile, Ecuador's Supreme Court has unanimously reaffirmed Zambrano's earlier ruling in the judgment against Chevron. On the other hand, Kaplan is recalcitrant and is expected to rule again in Chevron's favor in the coming weeks and again impose an injunction blocking enforcement of the Ecuador case.
The stakes meanwhile are quite high for Patton Boggs, a firm which doesn't have pockets nearly as deep as Chevron's. If Mastro wins, Patton Boggs could face dire consequences as Chevron could seek damages for intentional misconduct. Speaking with the Washington Post, Donziger remarked that Chevron was trying to intimidate Patton Boggs. "What Chevron is doing is suing lawyers for litigating," the lawyer said. "They are trying to scare lawyers from representing victims of their own misconduct. . . . I think that's very bad for the legal profession and our democracy."
From Ecuador to Christie
In light of Mastro's tactics in the Ecuador affair, perhaps we should expect the unexpected when it comes to the unfolding investigation into Chris Christie's affairs. If history is any indication, Mastro will probably try to wear out investigators or to turn the tables. A master of the counter-suit, Mastro might seek to question the credibility of Christie opponents or to underhandedly change the "narrative." From Nicaragua to Ecuador, these are strategies that have worked for Gibson & Dunn over the years, and the firm may well be tempted to employ such an approach once more.