Gibson, Dunn and Crutcher

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mofo's

see boutrous, donziger

SEE GREENPEACE SLAPP

SEE CLIMATE LAWSUITS CITY

see ted olson

see eugene scalia

Chevron

corps

bak

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EXXONKNEWs

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Energy Transfer’s case, originally filed by the firm Kasowitz Benson Torres (long-time lawyers for Donald Trump), was taken over in 2023 by Gibson Dunn, a law firm with a record of “playing both sides” of the First Amendment on behalf of its corporate clients. }:Gibson Dunn lawyer Trey Cox represented Energy Transfer in its opposition to Greenpeace’s motion this week,:{:{ arguing that juror questionnaires are the appropriate method to ensure a fair trial — and that whether or not Morton County residents received or read the newspaper was irrelevant.}:

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ref

https://www.exxonknews.org/p/exxon-uses-free-speech-argument-to

exxon uses free speech argument to fight climate laws

It’s not the first time the oil giant has tried to ward off accountability using the First Amendment.

Emily Sanders

Oct 29, 2025

ExxonMobil has sued California over a pair of state laws that force big companies to disclose financial climate risks to shareholders and the full greenhouse gas emissions resulting from their businesses — arguing that the measures violate the company’s free speech. It’s the latest example of Exxon, the biggest U.S. oil company, wielding the First Amendment as both a shield and sword in court.

The California Climate Accountability Package, which passed in 2023, would make companies doing business in California disclose emissions that result from the use of their products — also known as “Scope 3” emissions. That category makes up the vast majority of emissions from the oil and gas industry, but companies including Exxon have fought to avoid making them transparent.

Exxon’s new lawsuit argues that by requiring it to account for the entirety of its emissions, the laws would force it to “espouse California’s preferred framing for issues of immense public concern” and to “describe its emissions and climate-related risks in terms the company fundamentally disagrees with.” The lawsuit asks a U.S. District Court to stop California from enforcing the laws.

The case targets the country’s only existing disclosure laws for greenhouse gas emissions, even as the federal government ends emissions reporting and required climate disclosures at the federal level. But it’s also part of a years-long trend of corporations using First Amendment arguments in an attempt to shield themselves from scrutiny and regulation, experts say.

“This is part of a long history of companies including Exxon trying to use the First Amendment to block regulation that they dislike,” said Amanda Shanor, an associate professor of legal studies and business ethics at the Wharton School of the University of Pennsylvania, who has chronicled some of those high-stakes efforts. “That’s not really how the First Amendment works or is supposed to work.”

The fossil fuel industry, in particular, has leveraged First Amendment arguments to repel criticism over their role in the climate crisis. In recent years, oil companies have claimed that lawsuits across the country accusing them of misleading the public about climate change violate their free speech rights. From Oregon to Massachusetts, the District of Columbia to California, Exxon has brought motions to dismiss states’ and municipalities’ climate deception lawsuits under anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes — laws that were developed to protect the free speech of press and civil society groups.

One of those motions, responding to lawsuits filed by the state of California and eight California municipalities, argues that oil companies “have long exercised their rights to participate in the public debate over which policies best balance the challenges posed by a changing climate and the world’s increasing need for energy,” and that “This lawsuit threatens Defendants’ continued participation in those debates.”

The law firm representing Exxon in that motion, O’Melveny and Myers, is the same as in the latest First Amendment lawsuit against California. The argument seeks to cast Exxon’s public statements on climate change as political speech, which concerns public policy and has stringent First Amendment protections, rather than commercial speech, which does not enjoy the same level of protections.

“We’ve seen this movie before,” said Robert Brulle, an environmental sociologist and professor at Brown University and director of research at the Climate Social Science Network, who has co-authored briefs in support of climate deception lawsuits. “Their fallback defense is freedom of speech — ‘nobody ever said we have to be truthful.’”

Mobil Oil, now part of ExxonMobil, helped pioneer the idea of corporations as citizen-like entities with free speech rights in an effort to revive their reputation back in the 1970s. Exxon and Mobil backed other corporations’ First Amendment lawsuits, arguing that companies should be free to express their views on “matters of public concern,” including climate change. In Supreme Court cases like First National Bank v. Bellotti and Citizens United v. FEC, the idea of corporate free speech was expanded to usher in nearly unlimited corporate money in politics.

Still, none of oil companies’ anti-SLAPP arguments has been validated by judges. Under existing First Amendment law, Shanor explained, Exxon’s lawsuit against California’s disclosure laws should be very unlikely to succeed, too.

“Exxon is grasping at straws,” said Maggie Coulter, a senior attorney for the Climate Law Institute at the Center for Biological Diversity. “Courts have already rejected companies’ weak arguments rebranding their greenwashing and misinformation as free speech.”

Exxon and other corporations could be hoping that the U.S. Supreme Court might eventually use such a case to alter the boundaries between political and commercial speech — or “change what the rules are in a way that will favor them,” Shanor said.

“You just keep throwing the same basic core argument up there, wave the flag of the First Amendment and say, ‘leave us alone.’ Kind of like holding up a cross to a vampire,” said Brulle. “Now they’re playing it out in California to try to build a record in the court.”

‘Disproportionate blame’ on Exxon

According to Exxon’s lawyers, California’s disclosure framework would place “disproportionate blame on large companies like ExxonMobil for being large.”

“ExxonMobil understands the very real risks associated with climate change and supports continued efforts to address those risks,” reads the complaint. Such frameworks “send the counterproductive message that large companies are uniquely responsible for climate change no matter how efficiently they satisfy societal demand for energy, goods, and services.”

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, said that Exxon should “let the readers decide.”

“If Exxon doesn’t like California’s framing, it’s free to supplement it with its own framing and offer an explanation of why it thinks that one is better,” he said.

The company’s own framing hasn’t gone over well so far, at least with climate experts. Exxon is the top investor-owned carbon emitter in the world, according to the latest Carbon Majors database by researchers at the nonprofit think tank InfluenceMap, and one of the most profitable. But Exxon officials have often blamed the company’s emissions largely on the habits of consumers. In an interviewwith Fortune last year, ExxonMobil CEO Darren Woods said that “the people who are generating the emissions need to be aware of and pay the price … for generating those emissions,” and referred to Scope 3 emissions as “essentially the emissions of our customers.”

Just before that interview, Exxon sued its own shareholders in an effort to block a proposal for the oil giant to limit its Scope 3 emissions. The lawsuit was dismissed, but not before shareholders revoked their proposal.

“What Exxon is asking for in this case is to say that shareholders should have no right to question companies on climate-related issues,” Danielle Fugere, president & chief counsel of shareholder advocacy group As You Sow, told ExxonKnewsat the time.

Both that lawsuit and another last year brought by the U.S. Chamber of Commerce against the California Air Resources Board, which also alleged California’s climate disclosure laws violated the First Amendment, were argued by law firm Gibson Dunn — a favorite of fossil fuel companies. The industry has also used the firm to pursue massive legal damages from their opponents, including this year’s nearly $667 million verdict against Greenpeace for its role in the protests against Energy Transfer’s Dakota Access pipeline.

Earlier this year, after California Attorney General Rob Bonta and a group of nonprofits sued Exxon for a “decades-long campaign of deception” about the efficacy of plastic recycling, Exxon sued them back under defamation laws — a clear example of a SLAPP, legal experts said.

Though climate deception lawsuits face growing attacks from fossil fuel allies and the Trump administration in the United States, they have seen recent successes abroad — a Paris Court just ruled that French oil giant Total’s advertising about “net zero” and leading the energy transition was misleading consumers. And over the last week, two new lawsuits have been brought against major polluters in the UK and Germany by victims of climate disasters. “I think that the evidence is pretty solid that Exxon and Mobil and all sorts of other folks knew all about climate damages and lied about it, and it’s just going to get more solid the more information we get,” said Brulle.

California officials said they would fight to uphold the disclosure laws, which could soon show up in other states, too. “These laws are about transparency,” said Christine Lee, a spokesperson for the California Department of Justice, in a statement.“ExxonMobil might want to continue keeping the public in the dark, but we’re ready to litigate vigorously in court to ensure the public’s access to these important facts.”

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russel mok

greenpeace Goes to Trial in North Dakota to Defend Against Energy Transfer SLAPP Suit

:{By Editor Filed in Uncategorized February 13th, 2025

On February 24, 2025, Greenpeace USA is scheduled to go to trial in state court in Mandan, North Dakota. Greenpeace is being sued by Energy Transfer – the operator of the Dakota Access Pipeline – for nearly $300 million related to the 2016 protests at Standing Rock.

Deepa Padmanabha

The stakes are high, and not just for Greenpeace USA as an organization. This trial is testing out legal tactics that, if successful, could be widely applied against protesters, and indeed, anyone who speaks out or criticizes a deep-pocketed corporation.

The lawsuit filed against Greenpeace has been called a SLAPP suit – a Strategic Lawsuit Against Public Participation.

We rang up Deepa Padmanabha, a senior legal advisor to Greenpeace USA, to get some details on the lawsuit and upcoming trial.

What are the allegations of the lawsuit?

“Both sides have said this is likely the biggest case ever in the history of the North Dakota state courts,” Padmanabha toldCorporate Crime Reporterin an interview last week. “It’s three buckets of claims. The first bucket of claims are claims of defamation. Energy Transfer alleges that the Greenpeace entities made false statements. And those false statements caused damages. In the state case, we originally started out with over 80 statements that Energy Transfer alleged were defamatory. And now we are down to nine.”

“Those nine statements fall into three categories. The first category of statements are statements that we made that the Dakota Access Pipeline crosses Standing Rock Sioux tribal ancestral lands.”

“The second category are statements that Energy Transfer deliberately desecrated Standing Rock Sioux tribe cultural resources.”

“And the third category of statements are statements that we made that Energy Transfer and its contractors used excessive force against peaceful protestors.”

“The important thing to note here is that by the time Greenpeace entities made any of these statements that are at issue, these were statements that were already widely circulated in the public. Anybody familiar with the resistance at Standing Rock had heard these statements. These were not statements that Greenpeace invented.”

“Yet Energy Transfer is suing the Greenpeace entities for these statements.”

“That’s the first bucket of claims. The second bucket of claims are claims of tortious interference. They are related to defamation. Energy Transfer alleges that Greenpeace made these alleged false statements to financial institutions – institutions that were involved with financing the Dakota Access Pipeline. And the allegation is that based on those statements, the financial institutions took action that cost Energy Transfer hundreds of millions of dollars in damages – lost financing, financing costs from delays.”

“We know that many of these financial institutions had their own commitments. They did their own due diligence to understand what was happening with the Dakota Access Pipeline. In fact, no bank or financial institution made any decision based on a Greenpeace statement.”

“That’s the second bucket of claims. The third bucket of claims are on the ground claims such as trespass, conversion, and aiding and abetting. This is a bucket that is quite dangerous for the movement. These claims make it clear that Energy Transfer’s target is much bigger than Greenpeace. It really is an attack on our First Amendment rights.”

“What they are trying to do is create this idea of collective protest liability where if you have any involvement with, for example, training at a protest, you can be held accountable for anything that happens there by unknown people.”

“For example, if you are engaged in training in principles of non-violence, de-escalation, principles of safety, you can be held accountable for the actions of unknown protesters who, for example, destroy construction equipment. This idea is dangerous – that you can be held accountable for anything that happens by unknown people, especially at a time when we know that many protests are being infiltrated.”

“And you can imagine that this would have a serious chilling effect on anybody who wants to engage in protests. This idea that you can be held accountable for anything that happens is quite a dangerous one. It’s very clear that Energy Transfer – and the larger fossil fuel industry – is trying to send a message to everybody – watch out, you could be next.”

This lawsuit has been going on for eight years. Have there been any settlement talks?

“I can’t get into too much detail about that. But I will say that we are prepared to go to trial, and we are expecting to go to trial. It’s very important for us that no matter the outcome of this lawsuit, our decisions will be in line with our values and our principles and our commitments to our own indigenous peoples policies.”

There have been public reports about settlement talks in this lawsuit. And last year, Greenpeace settled with Shell Oil over another lawsuit. Did you work on that lawsuit?

“That was not Greenpeace USA. That was Greenpeace UK.”

Greenpeace UK agreed to pay something like $375,000 to settle that lawsuit. What are the odds this case will actually go to trial?

“As of now, we are fully prepared to go to trial. Trial is in three weeks. That’s where we are headed.”

Will you be in court at trial?

“Yes.”

You say this is a SLAPP suit. What is that?

“SLAPP stands for Strategic Lawsuit Against Public Participation. At their core, they are attacking First Amendment protected behavior. You look at the parties. It’s often activists, non-profit organizations, journalists, even concerned citizens who are speaking out about a matter of public concern.”

“In this instance, the concerns about the Dakota Access Pipeline, its routing and risks were absolutely a matter of public concern.”

“What is the nature of the activity targeted? Often the activity is First Amendment protected activity, such as free speech or non-violent protest. These lawsuits are often disguised as defamation lawsuits. That is very much the case here where many of the claims at issue are defamation claims.”

“The other issue is peaceful protest. Any involvement we had on the ground was 100 percent in line with our 50 plus year history of nonviolent direct action, bearing witness, and no property damage.”

“Another tell-tale sign of a SLAPP lawsuit is the power imbalance between the parties. To Energy Transfer, this lawsuit is just a drop in the bucket for them. But for Greenpeace, it represents a significant financial investment to put on this kind of defense.”

“Another tell-tale sign – the amount of damages. Energy Transfer is seeking $300 million. SLAPP suits have these huge damage claims to send a message. Even if they lack the evidence to support such a damage claim, which is absolutely the case here, just by making the allegation, it can have a chilling effect on anyone watching the case.”

“These corporations use the litigation process as punishment. This has been eight years. The first case was thrown out of federal court. But they kept the fight going.”

“When they filed the federal court action, they already had the green light to construct the Dakota Access Pipeline. It was constructed. So why would you still use the litigation process?”

“Because they know these kinds of lawsuits take years and years and years. You put a stress and burden on the powerful voice they are trying to shut down.”

“Even though it’s only the Greenpeace entities that have been served in this case, there have been a number of third party subpoenas. There have been wild attempts to draw in smaller groups and individuals into this lawsuit – not as named defendants, but to instill a sense of fear that they too are being watched.”

“As someone who has been involved in SLAPP lawsuits for a long time, this case hits every single aspect.”

The Wall Street Journal published an article last year titled – The Texas Billionaire Who Has Greenpeace USA on the Verge of Bankruptcy. That billionaire is Kelcy Warren. What did you make of that article?

“One of the most interesting points of that article was toward the end. The journalist wrote this: ‘The lawsuit poses its own risks for Warren. Some oil-and-gas investors expressed concerns about the claim, saying it makes the industry look vindictive and could result in a reinvigorated protest movement.’”

“Basically, some investors are concerned about a backlash. That is the truth. This lawsuit has galvanized the movement in a powerful way. Greenpeace is getting support from so many allies, allies we have never worked with before. They are now watching this case because they realize the implications this case could have.”

“There is what happens in court, but there is what happens outside the court. And corporations need to take the possible backlash into account. You could reinvigorate a movement. People have really come together to fight back against this kind of abuse of power.”

Were you able over the years to depose Energy Transfer executives, including the CEO Kelcy Warren?

“There were over 100 depositions in this case – Greenpeace employees, third parties, Energy Transfer contractors and Energy Transfer employees, including Kelcy Warren.”

Is the Kelcy Warren deposition public?

“I don’t know if that deposition is publicly available. There is quite a bit in this case that is subject to a protective order.”

Greenpeace wasn’t at the forefront of these protests. The native Americans groups were at the forefront of these protests.

“That is accurate. Greenpeace entities had limited involvement and that was intentional. This was not a Greenpeace campaign. This was a grassroots indigenous resistance. Greenpeace supported it by being an ally. Greenpeace supported the indigenous resistance in a very, very limited way.”

“Energy Transfer is trying to rewrite history. The first question I always get from people involved was – did Greenpeace have any involvement at Standing Rock? I had never heard about Greenpeace being involved. Greenpeace was really not involved.”

“Greenpeace was known for its big, bold campaigns. And that was not the case here.”

There were other major public interest groups who supported the resistance at Standing Rock. Why did Greenpeace get sued by Energy Transfer and not the other groups?

“Let’s go back to the first case that was dismissed, the RICO case. That was the second RICO case brought by the same law firm in back to back years. One of the lawyers made public statements and he was basically shopping this tactic around. There was this idea that civil RICO would be the new tactic used to go against advocacy groups.”

“Why Greenpeace? We are known for bearing witness, taking big, bold actions and not being intimidated. The idea was – if we can knock out Greenpeace, if we can scare them, then who else is going to step into their shoes? Who else will take on this level of risk?”

“We recognize that intention. And that also speaks to why we have been fighting the case the way we have been. We have been fighting this case for the movement. We know that the intent is to reach beyond the Greenpeace entities. And we take that fight seriously.”

*For the complete Interview with Deepa Padmanabha, 39 Corporate Crime Reporter 7(12), Monday February 10, 2025,[print edition only.

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Mayor Adams’ pick for New York City’s top lawyer played a pivotal role in helping Chevron escape liability for a toxic legacy of pollution in Ecuador.

Emily Sanders|

Randy Mastro appeals to the New York City Council during his confirmation hearing.

At the start of what would turn out to be a grueling 11-hour confirmation hearing before the New York City Council last week, Mayor Eric Adams’ pick for the city’s next top lawyer introduced himself as a “happy warrior” and “lifelong Democrat” with a laundry list of progressive accomplishments. He did not, during that introduction, mention his work as a lawyer for Big Oil.

Randy Mastro pleaded his case to the council as he might before a jury. Voice filled with emotion, he recounted his story as the grandson of Italian immigrants who has dedicated his career to pursuing social justice as a legal advocate. He talked about fighting for LGBTQ+ and civil rights, protections for workers, consumers, and the environment, public safety, and battling organized crime — things he said he could do on behalf of all New Yorkers.

Mastro faced steep odds with that appeal. A longtime trial attorney who worked as deputy mayor for Rudy Giuliani, Mastro’s nomination for Corporation Counsel has been met with heavy skepticism from many of the City Council’s 51 members. In April, the Council’s Black, Asian and Latino Caucus stated that “Mastro is unfit to serve as the city’s chief lawyer” given his “professional track record representing dubious clients.”

Indeed, Mastro’s list of clients include former New Jersey Governor Chris Christie during the “Bridgegate” scandal, New Jersey in its effort to block congestion pricing initiatives in New York, landlords fighting a local ordinance requiring buildings to make energy efficiency upgrades, and oil giant Chevron, in its years-long pursuit to evade liability for oil spills and billions of gallons of cancer-causing wastewater pollution in the Ecuadorian Amazon.

During Mastro’s hearing on August 27, Council Member Jim Gennaro, who chairs the Council’s Committee on Environmental Protection, Resiliency & Waterfronts, used his first question to confront Mastro for his representation of Chevron in that case, and for listing it first on his resume among his most significant legal accomplishments.

“How can the environmental justice community and this council trust you to champion [environmental justice] issues and defend [environmental justice] legislation when you tout as your number one legal victory your triumph for Chevron in this case, in which Chevron perpetrated one of the worst episodes of environmental injustice on the planet, which is still going on today?” Gennaro asked.

“You got them a walk, and the Indigenous people are still suffering from Chevron’s environmental destruction,” he said. “That is, I believe, a dealbreaker.”

“He can’t have it both ways”

The case Gennaro referred to was Chevron’s racketeering case against Steven Donziger, the now-former human rights attorney who in 2011 won a $9.5 billion judgment against the oil giant on behalf of Indigenous people and small farmers in Ecuador. Mastro played a leading role in trying Chevron’s case, which accused Donziger of winning the Ecuadorian judgment through bribery and fraud. Chevron’s paid witness later recanted large parts of his testimony — but more than a decade after the judgment in Ecuador, none of the 30,000 plaintiffs have received a cent or seen a cleanup of the pollution still making them sick.

In an interview with ExxonKnews, Gennaro reaffirmed that Mastro’s choice to “shield Chevron” from accountability was “a dealbreaker in terms of him being a good fit.”

“What I was trying to get across to Mr. Mastro is that he can’t have it both ways,” Gennaro said. “He can’t be the protector of Chevron when they perpetrate one of the most egregious environmental injustices in recent memory, and stand on the side of environmental justice when it comes to policies in New York City.”

Council Member Sandy Nurse, who also serves on the Council’s Committee on Environmental Protection, echoed that sentiment. Mastro helped “a lucrative client get off the hook for poisoning poor Brown people in another country,” she told ExxonKnews. “This was a for-profit venture to work for people who are destroying the planet, who have no problem toxifying our ecosystems for money.”

“He has fought good cases and represented good organizations,” Nurse added. “But he didn’t have to take that case. If you are someone who is claiming to be a lawyer for social justice, you don’t get to pick and choose when you’re doing that.”

Protecting the justice system

In response to Gennaro’s questioning at the hearing, Mastro argued that “Steve Donziger committed litigation fraud” and “is the reason why that judgment [against Chevron] didn’t stand,” and “what we did [in that case] was to preserve and protect the integrity of the justice system.”

But the firm Mastro worked for as a leading litigation partner for 20 years, Gibson, Dunn & Crutcher, has been accused of gaming the justice system to help its corporate clients silence their opponents. Gibson Dunn developed what it called the “kill step” — reportedly enticing witnesses to claim plaintiffs committed fraud — when defending Dole against Nicaraguan banana workers exposed to a toxic pesticide. It leveraged that strategy again against Donziger, who wound up spending 45 days in prison and 993 days on house arrest, and lost his license to practice law. Now, the firm is representing pipeline company Energy Transfer in a defamation case against Greenpeace US for its work organizing against the Dakota Access pipeline.

Gibson Dunn has also pioneered a strategy to expand free speech protections for corporations, beginning with its historic win in Citizens United. Today, the firm is defending Chevron against climate deception cases filed by state and local governments across the country, which accuse the oil giant of misleading the public about the dangers its products would cause. Gibson Dunn argues those cases violate the company’s protected “political speech” under the First Amendment, and should be tossed out.

New York City filed its own climate deception lawsuit in 2021 against BP, ExxonMobil, Shell, and the American Petroleum Institute for “systematically and intentionally” misleading consumers “about the central role their products play in causing the climate crisis.”

Though Chevron isn’t named as a defendant, Exxon and BP have brought motions to dismiss the case under those same First Amendment arguments. (Mayor Adams has boasted publicly about meeting with the “hard-working New Yorkers powering our business sector” at Paul Weiss, the firm defending Exxon against the city.)

After reaching Gibson Dunn’s retirement age for top leadership positions, Mastro left Gibson Dunn for King & Spalding in 2022. During his hearing, he revealed that he’s in a dispute with the former firm over the terms of his departure.

Mastro’s bio at King & Spalding touts that “The New York Times has called him ‘the go-to lawyer for companies’ suing the government,” and references his victory in a “two-month RICO trial barring the enforcement of a $9 billion fraudulent Ecuadorian judgment against Chevron.”

“I do not want someone to represent the City of New York who has no problem representing clients who do not have the interest of our future at heart, who are not committed to the long term viability of us to be here in New York City, given the challenges we have right now around a number of environmental issues,” Nurse said.

What’s next

The job of top lawyer for the nation’s most populous city is no small one: the position would reign over an 800-person law department, bring or defend any legal action brought by the city, and enjoy an indefinite term.

Mastro was nominated by Adams after the May resignation of Sylvia Hinds-Radix, who reportedly resisted defending a former NYPD inspector and friend of the mayor who was accused of sexual assault. Mastro donated $2,100 to Adams last October.

To get the position, Mastro would need to be confirmed by a majority of the 51-member City Council in a vote that will take place before September 15. But after the hearing, numerous anonymous sources told Fox 5 that Mastro is unlikely to have the votes he needs.

If you ask Steven Donziger, a New York City resident and the man who spent years tethered to an ankle monitor thanks to Chevron, the attorney is “the last person New York City should be thinking about for their lawyer.”

“Randy Mastro is a key reason for an ongoing environmental catastrophe that continues to kill people,” Donziger said. “The fact that tens of thousands of Indigenous peoples and farmers are suffering is Randy Mastro’s true legacy.”

Thanks for reading ExxonKnews!

===

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when the former president Donald Trump appointed the Texas attorney James Ho to the fifth circuit court of appeals in 2017, lawyers at the prominent law firm Gibson Dunn – where Ho worked before his appointment – had a problem: how to replace the politically connected Ho. Turns out, they didn’t even need to change the home address for his replacement. Ho’s wife, Allyson, moved into her husband’s position and his old office.

Meet the Hos.

Few people outside of legal circles have heard of the Hos, yet the couple is tied to the case before the US supreme court that will determine women’s access to mifepristone, a drug commonly used in medication abortions. The court hears arguments in the case on Tuesday.

Ho served on the three-judge panel last summer that ruled to restrict access to mifepristone. The legal group behind the mifepristone case, Alliance Defending Freedom, made at least six payments from 2018 through 2022 to his wife, Allyson, a powerhouse federal appellate lawyer who has argued in front of the supreme court and has deep connections to the conservative legal movement that has led the attack on the right to abortion in the US.

The payments don’t violate the court’s code of conduct, according to Stephen Gillers, a New York University emeritus professor of law and author of Regulation of Lawyers: Problems of Law and Ethics. But some court watchers argue that Ho’s failure to recuse himself from the case illustrates why public trust in the judiciary is eroding. One recent survey found that 63% of judges noted a dip in the public’s positive perception of them.

“When Americans see a case like this – so clearly concocted and motivated by special interests, and with evident connections between those interests and the judges on the case, it does tremendous damage to the reputation of the courts, and to the public trust in their ability to give all litigants an even shake,” said Alex Aronson, the executive director of the non-partisan group Court Accountability and a former chief counsel to the Democratic senator Sheldon Whitehouse.

In an email to the Guardian, James Ho wrote that he “consulted our court’s ethics advisor prior to sitting in that case, and was advised that there was no basis for recusal. In any event, my wife’s practice is to donate honoraria to charity.”

The Hos are just one of the increasing number of power couples in the conservative movement in which the wife of a prominent official works in the background, laying the groundwork for Republican policies that their spouses will rule upon or legislate. In the mifepristone case, the wife of the Missouri senator Josh Hawley, Erin, is the attorney of record for Alliance Defending Freedom and argued the case before Ho. The supreme court justice Clarence Thomas rankled the legal world when he refused to recuse himself from a case involving questions about the January 6 insurrection and the “Stop the Steal” campaign to which his wife, Ginni Thomas, was closely tied.

For Aronson, these are examples of “serious concerns about what is becoming an apparent pattern of coordinated activity by some of these couples in this extremist movement, including the Thomases, Hawleys and Hos”.

Ho’s rulings have included zealous language, referencing what he called in one decision “the moral tragedy of abortion”. He has suggested that protection orders in domestic violence cases “are too often misused as a tactical device in divorce proceedings – and issued without any actual threat of danger”. Orin Kerr, a University of California, Berkeley, law professor, tweeted that one of Ho’s opinions “reads like a politician’s op-ed, not a legal opinion; judges should stick to law”.

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In the mifepristone case, in which Ho supported rolling back decisions made by the Food and Drug Administration to loosen restrictions on the drug, he wrote: “Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients – and experience an aesthetic injury when they are aborted.”

He has chafed legal traditionalists from the moment of his swearing-in, when he opted for the ceremony to be held in the private library of Harlan Crow – the conservative mega-donor who, ProPublica revealed, has lavished Clarence Thomas with trips on his yacht and paid the$6,000-a-month private school tuition for the justice’s great-nephew. Ho worked as a clerk for Thomas in 2005.

Ho vowed to boycott hiring Yale Law School graduates as clerks after students interrupted conservative speakers on campus, noting “cancellations and disruptions seem to occur with special frequency” at the Ivy League school.

His caustic writings have drawn the spotlight while his wife, Allyson, has been working more inconspicuously, helping lay the legal foundation for conservative policies in her own work.

She appears frequently as a speaker for the Federalist Society, the group that has led the conservative effort to reshape the judiciary. She has also worked pro bono for the Christian right organization First Liberty Institute, a group that describes its mission “to defend and restore religious liberty in our schools, for our churches and houses of worship, inside the military, and throughout the public arena”.

It’s unclear what Alliance Defending Freedom paid Allyson Ho to do, yet ending abortion is central among the organization’s goals. The group helped writethe Mississippi law that led to the Dobbs decision that overturned Roe v Wade and ended the 50-year-old constitutional right to an abortion.

Her husband’s financial disclosures list descriptions of “Academy” or “Freedom Summit”, next to some of the payments. The ADF hosts various legal trainings as part of its ADF Legal Academy that “seamlessly combines outstanding legal training with an unwavering commitment to Christian principles” and a Young Lawyers Academy.

The Alliance Defending Freedom said: “ADF often invites lawyers of various backgrounds and experiences to speak at events. ADF offers honorariums for speaker participation. Allyson Ho is an exceptional lawyer with vast and diverse legal experience.”

A request to speak with Allyson Ho sent to Gibson Dunn has not been answered.

The Texas senators Ted Cruz and John Cornyn, both Republicans, appointed Allyson to the state’s committee responsible for recommending and vetting its recommendations to fill judicial vacancies. Neither Cruz nor Cornyn’s offices responded to the Guardian’s request for the names or dates of service for the judicial vetting committee nor did they respond to questions about what role, if any, Allyson had in her husband’s nomination to the bench.

[

‘They hate God’: US anti-abortion activists aim to fight back on 51st Roe anniversary

Read more](https://yyy.theguardian.com/us-news/2024/jan/22/roe-v-wade-abortion-anniversary-2023)

In 2023, the Texas attorney general, Ken Paxton, hired Allyson and Gibson Dunn, at a rate of $1,313 per hour – with a $7m cap – to represent the state in a decade-long legal battle in which a federal judge determined Texas had failed to protect foster children. The state had previously been represented by attorneys on its own payroll. The move to hire Allyson and her firm signaled that Texas could be looking to fight backagainst court orders mandating Texas comply with federal monitors appointed to ensure the safety of vulnerable children in its care by appealing district court rulings to the fifth circuit court of appeals – the court on which James Ho serves.

The mifepristone case might just be the beginning of the Hos’ influence, Gillers, the NYU professor, said.

“If Trump wins the election, you’ll see Ho on the short list of nominees to the supreme court,” he said. “He is obviously behaving in a way that makes him a very prominent candidate in a Republican administration.”

That appointment could once again leave an empty office – one that some might want Allyson to fill.

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YMAIL 2 24ExxonKnews

Chicago last week brought the newest lawsuit against Big Oil companies for spreading disinformation about the climate-warming hazards of burning fossil fuels — adding the third largest city in the U.S. to the growing list of state and local governments pushing for oil and gas majors to be held accountable in court.

The case charges BP, Chevron, ExxonMobil, Shell, ConocoPhillips, and the American Petroleum Institute with conspiring together and through front groups to run “tobacco-industry-style campaigns to deceive and mislead the public about the damaging nature of their fossil fuel products.” The fallout of those campaigns, according to the complaint, was a long delay in climate action that has come at an increasingly unbearable cost to Chicago residents — particularly in its low income neighborhoods and communities of color.

City officials say their legal action is necessary for the city to help shift the financial burden of adapting to climate disasters away from those communities and back onto the companies most responsible.

“There is no justice without accountability,” said Mayor Brandon Johnson in a statement. “From the unprecedented poor air quality that we experienced last summer to the basement floodings that our residents on the West Side experienced, the consequences of this crisis are severe, as are the costs of surviving them. That is why we are seeking to hold these Defendants accountable.”

Ted Boutrous of law firm Gibson, Dunn and Crutcher, an attorney for Chevron and chief architect of Big Oil's legal arguments in these cases, said in a statement that “addressing climate change requires a coordinated international policy response, not meritless local litigation over lawful and essential energy production.”

The city is charging the companies with 10 counts of failure to warn, negligence, fraud, conspiracy, and public nuisance, and it asks for compensatory damages and the disgorgement of profits made in the course of the industry’s fraud, among other remedies. The lawsuit, filed Tuesday in Cook County court, also requests a jury trial, where the companies could face more evidence of their deception gained through the discovery process.

That deception, Chicago argues, includes the oil majors’ ongoing campaigns to “falsely present themselves as corporate leaders in the fight against climate change, claiming to invest substantially in low-emission technologies and zero-emission energy sources, while their business continues to be overwhelmingly focused on fossil fuel production and sales.”

As one example, the complaint cites a recent BP ad targeting Illinois Facebook users that claims “We agree - the world needs fewer emissions. That's why we're working to make all forms of energy cleaner and better.” BP is simultaneously reneging on its climate pledges and increasing its production of oil and gas.

“At the end of the day, the climate crisis that we’re enduring was known by fossil fuel companies — they were warned decades ago by their own scientists of the potentially severe or even catastrophic consequences of their approach,” said Chicago Alderman Matt Martin, who applauded city leaders’ decision to file suit. “These companies should no longer be allowed to shift the burden of paying for the impacts resulting from that conduct onto Chicagoans.”

The harm to Chicago from climate change

It might be difficult to imagine what climate change looks like for a Midwestern city far from rising seas and hurricanes — but Chicago is susceptible to a spate of climate threats.

Chicago’s complaint cites more frequent and intense storms, flooding, droughts, shoreline erosion, toxic algae blooms in Lake Michigan, and extreme heat events like a four-day heat wave in 1995 that killed more than 700 Chicagoans.

The 1995 heat wave was a “watershed moment,” said Daniel Horton, who leads the Climate Change Research Group at Northwestern University. “Since that time the city has done a number of things to improve community resilience, but we expect more heatwaves in the future as the world continues to warm — so we have to constantly update our policies and prepare for extreme heat,” he added.

Many victims of that heat wave were elderly, low-income, and Black, residing in apartments without air conditioning. Those groups are still most at risk from extreme heat and air pollution in Chicago, which can coincide to produce “profound public health consequences,” said Horton, like they did when wildfire smoke from Canada gave the city the worst air quality in the world in June. The same demographics were also hit hardest during a severe rain event in July, which wreaked havoc on Chicago’s West Side, and are most susceptible to the city’s more-regular flooding.

“When you’re talking about the legacy of environmental racism all across the city, too often with regard to both severe weather and other aspects of the climate crisis, the communities bearing the brunt of that devastation are lower income communities of color,” said Alderman Martin.

Chicago is an “incredibly segregated city,” explained Horton, where Black and Hispanic communities are far more likely to live in places that are hotter, have poorer air quality, and are most flood-prone. The city can make decisions to ease the burden on those communities — like figuring out “where to increase our green infrastructure, building more of a green canopy and reducing the heat island effect, deciding where to build cooling centers in neighborhoods that have more vulnerable citizens or people without access to air conditioning or the ability to pay for it,” he said. The more the city invests in community adaptation, the higher the price tag — in its complaint, the city said it is already spending $188 million on climate projects in low-income communities — and that’s the kind of thing Chicago wants oil companies to help pay for.

“There’s surviving, and then there’s thriving,” Horton said. “I like to think surviving isn’t the goal.”

“Another powerful player”

More than 25% of all Americans are now represented by governments taking oil companies to court for climate deception. Chicago’s lawsuit brings “another powerful player into the game,” remarked Pat Parenteau, an environmental law professor at Vermont Law School.

“There’s strength in numbers, and the more entities like Chicago and California that have the resources to do battle, the better, from the plaintiffs’ side of it,” Parenteau said.

Chicago is suing as similar cases across the country move toward trial in state court. Massachusetts' consumer fraud case against Exxon is currently in the pre-trial discovery phase, and the City and County of Honolulu is in the process of agreeing what discovery will look like once it starts. Delaware is requesting that the state’s Supreme Court review a lower court’s ruling regarding which parts of its case can be heard at trial. In Italy, the trial for twelve Italian citizens’ lawsuit against oil giant Eni just kicked off.

Parenteau had a long list of reasons why new communities like Chicago would choose to sue now — growing evidence of what the companies knew and how they lied, more attribution science linking specific companies’ emissions to specific damages, the state of California filing suit, plaintiffs winning the fight to keep their lawsuits in state court, and other legal successes against oil majors across the world.

Or it could be simpler than all that. “These cities are beginning to realize just how much money they’re facing to deal with climate effects, and the recalcitrance of the oil companies that are sitting on piles of money and making more every year,” he said. “Maybe it’s too much for them to ignore.”

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an pro publ 7 23

sCOTUS Justices’ Beneficial Relationships With Billionaire Donors

For months, Harlan Crow and members of Congress have been engaged in a fight over whether the billionaire needs to divulge details about his gifts to Supreme Court Justice Clarence Thomas, including globe-trotting trips aboard his 162-foot yacht, the Michaela Rose.

Crow’s lawyer argues that Congress has no authority to probe the GOP donor’s generosity and that doing so violates a constitutional separation of powers between Congress and the Supreme Court.

Members of Congress say there are federal tax laws underlying their interest and a known propensity by the ultrarich to use their yachts to skirt those laws.

Tax data obtained by ProPublica provides a glimpse of what congressional investigators would find if Crow were to open his books to them. Crow’s voyages with Thomas, the data shows, contributed to a nice side benefit: They helped reduce Crow’s tax bill.

The rich, as we’ve reported, often deduct millions of dollars from their taxes related to buying and operating their jets and yachts.Crow followed that formula through a company that purported to charter his superyacht. But a closer examination of how Crow used the yacht raises questions about his compliance with the tax code, experts said. Despite Crow's representations to the IRS, ProPublica reporters could find no evidence that his yacht company was actually a profit-seeking business, as the law requires.

“Based on what information is available, this has the look of a textbook billionaire tax scam,” said Senate Finance Committee chair Ron Wyden, D-Ore. “These new details only raise more questions about Mr. Crow’s tax practices, which could begin to explain why he’s been stonewalling the Finance Committee’s investigation for months.”

Crow, through a spokesperson, declined to respond to ProPublica’s questions.

As ProPublica reported in April, Crow lavished gifts on Thomas for over 20 years, often in the form of luxury trips on Crow’s jet and yacht. One focus of the investigations is whether Crow disclosed his generosity toward Thomas to the IRS, since large gifts are subject to the gift tax. Another is whether Crow treated his trips with Thomas as deductible business expenses. (While the data sheds light on how Crow might have accounted for Thomas’ trips, there are no clear implications for Thomas’ own taxes, experts said.)

Crow’s entry into the world of superyacht owners came nearly 40 years ago. By 1984, his father, Trammell Crow, had forged his real estate fortune, and Harlan, then in his 30s, was taking an increasing role in the family business. That year, father and son worked together to erect the 50-story Trammell Crow Center in downtown Dallas. They also formed a company, Rochelle Charter Inc., with the purpose of leasing out their new yacht, the Michaela Rose.

ProPublica’s trove of IRS data, which contains tax information for thousands of wealthy individuals, includes both Harlan Crow and his parents, who filed jointly. The data shows his parents with a majority share in Rochelle Charter. After they both died, Harlan Crow took full control in 2014.

ProPublica’s data for the company runs from 2003 to 2015. Rochelle Charter reported losing money in 10 of those 13 years. Overall, the net losses totaled nearly $8 million, with about half flowing to Harlan Crow. By using those deductions to offset income from other sources, the Crows saved on taxes. (The wealthy often find ways to deduct the expense of a private jet; the records don’t make it clear whether Crow is doing so.)

For Crow, the tax breaks from his yacht were just one way he was able to achieve a lighter tax burden. The tax code is particularly friendly to commercial real estate titans, and Crow generally enjoyed low taxes during that same period: He paid an average income tax rate of 15%, according to the IRS data. It’s a rate typical of the very wealthiest Americans but lower than the personal federal tax rates of even many middle-income workers.

Crow’s biggest deduction from the Michaela Rose came in 2014, when, after the death of his mother, Crow decided to renovate the yacht. The interior needed updating to fit more contemporary notions of glamour (for one, less gold plating). The work was expensive: Crow’s tax information shows a $1.8 million loss from Rochelle Charter that year.

In order to claim these sorts of deductions, taxpayers must be engaged in a real business, one that’s actually trying to make a profit. If expenses dwarf revenues year after year, the IRS might conclude the activity is more of a hobby. That could lead to the deductions being disallowed, plus penalties. Nevertheless, the ultrawealthy often pass off their costly pastimes, like horse racing, as profit-seeking businesses. In doing so, they essentially dare the IRS to prove otherwise in an audit.

For a yacht owner to meet the legal standard of operating a for-profit business, said Michael Kosnitzky, co-chair of the private client and family office group at the law firm Pillsbury Winthrop, “You have to be regularly chartering the yacht to third parties at fair market value,” typically through an independent charter broker.

ProPublica interviewed around a dozen former crew members of the Michaela Rose, some of whom spent years aboard the ship, and none said they were aware of the boat ever being chartered. ProPublica also reviewed cruising schedules for three different years. According to the former staff and the schedules, use of the vessel appears to have been limited to Crow’s family, friends and executives of Crow’s company, along with their guests.

Moreover, in an attempt to trademark the name of his yacht, Crow struggled to provide evidence that he chartered his ship. In 2019, an attorney representing Rochelle Charter filed an application with the U.S. Patent and Trademark Office for the request. This required demonstrating commercial use of the name Michaela Rose. The attorney, of the law firm Locke Lord, wrote that the name was used for “yacht charter services for entertainment purposes” and as evidence attached a brochure.

“This magnificent yacht has cruised the oceans of the world with a graceful and gentle motion found only on the most superior seagoing vessels,” the pamphlet said, and it went on to extol the vessel’s “fine, seakindly hull” and “mahogany paneled formal dining room” that seats 16. But it said nothing about chartering.

“Registration is refused because the specimen does not show the applied-for mark in use in commerce,” the USPTO’s attorney responded.

Crow’s attorney asked the USPTO to reconsider. The brochure was “provided by Applicant directly to its customers and potential customers,” he wrote. Wasn’t that enough?

When USPTO again refused, the attorney provided new evidence: screenshots of the websites superyachts.com and liveyachting.com. These show “links and references to yacht ‘Charter’ services offered in connection with Applicant’s MICHAELA ROSE mark,” the attorney wrote.

At this point, the USPTO agreed to approve the trademark, but the evidence was dubious. Hundreds of ships have profiles on superyachts.com whether they are available to charter or not. The LiveYachting page merely encouraged readers to contact a broker “for finding out if she could be offered for yacht charters.”

“Reviewing the file, it’s not clear to me that the yacht was actually offered for use in commerce in a way that would justify a trademark,” said Neel Sukhatme, a professor at Georgetown Law and visiting scholar with USPTO.

Since April, when the Senate Finance Committee first sent Crow a long list of questions about Thomas’ trips on his jet and yacht, Crow has refused to provide extensive answers. But last month, his attorney, Michael Bopp of the law firm Gibson Dunn, did shed some light on how his chartering business worked: Crow leased from himself. (Gibson Dunn is representing ProPublica pro bono in a case against the U.S. Navy.)

For Crow’s personal use of the Michaela Rose, including trips when the Thomases were guests, “charter rates … were paid to the Crow family entities” that owned the yacht, Bopp wrote in a letter to Wyden. The letter did not specify who, if anyone, paid when Crow’s friends, family or employees used the vessel or how he determined the charter rate. Crow’s spokesperson declined to clarify these details.

According to Bopp, then, whenever Crow used his yacht, Crow (or one of his businesses) would pay his own company, Rochelle Charter, and Rochelle Charter would put that down as revenue. On the other side of the ledger would go the considerable expenses of operating the yacht: maintenance, crew, fuel and other costs. If, at the end of the year, Rochelle Charter’s revenue from chartering exceeded those expenses, Crow would pay tax on that income.

But the taxes of the ultrawealthy often have an up-is-down quality. The clear incentive is to welcome losses, not profits. If, as happened most years for which ProPublica has data, Rochelle Charter’s expenses far exceeded revenue, Crow would save on taxes.

These sorts of arrangements “should be aggressively audited,” said Brian Galle, a professor at Georgetown Law and former federal prosecutor of tax crimes.

“Assuming that the uses of the yacht are mostly personal, Crow should not be able to take a deduction,” he said, calling “absurd” the idea that “the more personal use you get from the yacht, the more deduction you get to claim.”

Crow treated personal trips on his jet in a similar fashion, according to his attorney. Wealthy business owners often derive tax savings from their jets, since business-related flights are fully deductible, and the rich can often find ways to blend business and pleasure, as ProPublica has reported. The company that owns Crow’s jet is not in ProPublica’s data set, so it’s unclear if it reported net losses.

Bopp’s letter describes the standard way that jet owners account for nonbusiness guests: “Reimbursements at rates prescribed by law,” he wrote, were paid to the Crow business that owned his jet. The IRS has a “Standard Industry Fare Level” that jet owners use to calculate the value of a seat aboard a jet for any trip. The amount is roughly equivalent to the cost of a first-class commercial ticket, far below what it would actually cost to charter a jet.

The Senate investigation has also focused on an entirely different tax question: Given that Thomas’ trips on Crow’s jets and yachts could easily be valued in the hundreds of thousands of dollars, did Crow report them to the IRS as taxable gifts?

For each year that Crow gave gifts to someone that exceeded a certain threshold ($17,000 in 2023), he was required to file a gift tax return. That might or might not have resulted in a tax bill for Crow, depending on how much he’d already given to others over the course of his life. (The lifetime limit for total gifts is $12.9 million in 2023.)

But, according to Bopp’s letter, Crow didn’t consider the trips reportable. The gift tax, Bopp wrote, was created to prevent people from avoiding the estate tax by simply giving away assets before death. But Crow still owned his jet and yacht after hosting Thomas. “Value [was] not transferred out of the hosts’ taxable estates,” he argued. Therefore, no gift tax.

Tax experts told ProPublica, on the contrary, that these sorts of luxury trips should be analyzed as gifts.

Beth Kaufman, a partner with Lowenstein Sandler who specializes in estate planning and a veteran of the Treasury Department’s Office of Tax Policy, said she’d counseled clients on the issue. After one couple took their extended family on an exotic vacation, she said, she helped them calculate the reportable costs and file a gift tax return.

However, taxpayers rarely report these sorts of trips, experts said. One important factor is that the IRS has no way of knowing about gifts like these unless they happen to be uncovered in an audit. The agency has also signaled no interest in scrutinizing these kinds of interactions. In fact, experts weren’t aware of any audits related to gifts of this kind.

The result is a situation where, counterintuitively, the gift tax can be easier to avoid the richer the host is.

As explained in a recent paper by two law professors and a private practitioner, everyone agrees that giving $500,000 to a friend would necessitate filing a gift tax return for that amount. Using that $500,000 to buy an all-expense-paid yacht cruise for friends would be treated no differently. But if someone owns a luxury yacht and takes their friends on a cruise, the situation gets muddy. Crow’s attorney even argues there was no gift at all.

That “doesn’t square with fundamental notions of fairness,” said Bridget Crawford, one of the paper’s authors and a professor at Pace Law School.

How to apportion the costs for Crow and his guests is debatable, Crawford said. Crow might argue he would have gone on the cruise without his friends anyway, but at the very least, she said, some portion of the costs of the trip (e.g., the crew and food) should be allocated to his guests.

She and her co-authors urged Congress and the IRS to make it clear these sorts of gifts should be disclosed and provide guidelines for valuing them.

“A lot of these tax rules were developed in an era where there were a few millionaires and the tiniest number of billionaires,” Crawford said, “and now there are many. This is becoming a more visible problem.”

FROM YOUR SITE ARTICLES

Changing of the Guard

Meyers, a former counsel to now retired Sen. Jon Kyl (R-Ariz.), was a longtime deputy general counsel at the U.S. Chamber of Commerce before joining API in 2020.

He started his career as an associate at Gibson, Dunn & Crutcher in Washington before going on to serve as general counsel to former Sen. Elizabeth Dole (R-N.C.). Meyers also spent time at the Commerce Department and Treasury Department during the second administration of President George W. Bush.

“Ryan has become a trusted adviser to me and many others,” Sommers said in a statement. “Ryan’s broad experience in Washington and across government will serve API well.”

beware code

https://www.thenation.com/article/activism/law-firms-climate-change/

For too long, law firms have been given carte blanche for their contributions to the climate crisis: They lobby on behalf of the fossil fuel industry, file the paperwork necessary for carbon-emitting projects, and litigate cases against indigenous and frontline communities. With over 1,500 lawyers in offices around the world, Gibson, Dunn, & Crutcher LLP is regarded as one of the top law firms in the United States.

Like many of its peers, Gibson Dunn profits from squashing class action lawsuits and labor organizing drives, keeping shareholders from reforming corporate practices and debtors from getting their day in court, and shielding US companies from accountability for their actions overseas and from regulation at home. Even by the standards of the legal industry, however, Gibson Dunn’s behavior is notorious. In 2007, the Montana Supreme Court rebuked the firm for engaging in “actual malice” and “legal thuggery,” and a Delaware judge recently described its pretrial practices as constituting “fraud.”

But Gibson Dunn’s behavior goes even further. It spent more than a decade defending Chevron in a lawsuit brought by indigenous communities whose homeland was poisoned by an oil spill in Ecuador. When Ecuadorian courts awarded those indigenous communities a $9.5 billion judgment, Gibson Dunn was involved in overturning that ruling in a corporate-friendly US court, leading to the prosecution of Steven Donziger, a human rights attorney who represented the Ecuadorian plaintiffs. Gibson Dunn’s involvement in the Chevron case is a chilling example of the lengths the firm is willing to go to represent the fossil fuel industry and silence anyone in the way.

And Gibson Dunn’s record on climate change is unapologetically awful. Law Students for Climate Accountability (LSCA), an organization that scores law firms based on their environmental activities, gave the firm an F this year, the lowest score possible. In addition to its involvement in dozens of climate change cases, Gibson Dunn has lobbied for Koch Industries and represented the corporation behind the Dakota Access Pipeline, a project that would violate indigenous rights. (In another affront to native sovereignty, Gibson Dunn has also represented those seeking to overturn the Indian Child Welfare Act). Over the last decade, the firm has brought in nearly $27 billion in fossil fuel and energy revenue, with no sign of slowing down even as the need to halt and reverse carbon emissions becomes all the more urgent.

In April 2021, dozens of law student organizations signed a letter from LSCA calling on Gibson Dunn to change its contracting standards. Following Gibson Dunn’s refusal to engage with this petition, in December 2021, LSCA announced a boycott so that individual students too can announce that they are#DoneWithDunn. Meanwhile, Gibson Dunn strives to maintain a liberal, even progressive image: One of the firm’s star litigators is vocally anti-Trump, even as he heartily defends oil and gas companies. Indebted law students are enticed by high pay, diversity initiatives and pro bono opportunities, but may not be aware that their first work assignments may include overturning Covid eviction moratoriums or defeating suits for toxic exposure. In increasing numbers, however, young workers are demanding that their would-be employers disentangle from work furthering environmental and social catastrophe.

When it comes to the climate crisis, business as usual won’t cut it, and nowhere is that more true than in the legal profession. Gibson Dunn is but one of many law firms with a terrible track record on climate, yet this boycott from LSCA is a crucial step in forcing Big Law to take responsibility for how it normalizes, entrenches, and exacerbates Big Carbon work that imperils our planet and its people. By doing so, we join a movement already changing norms at ad agencies, financial institutions, and tech companies, all of which are the sites for organizing to end profiteering from carbon extraction.

Reshaping the economic and social incentives for individual workers, their companies, and indeed entire industries is no small order. But this is exactly what is asked of our generation. Law firms are not leading the way on a just transition toward renewable energy; the only way they will is if we hold their feet to the very fires they are fanning.

Leehi YonaLeehi Yona is a PhD student in environment and resources and a Knight-Hennessy Scholar at Stanford University. Her research is on climate change science, policy, and justice.

Davi

https://www.thenation.com/article/activism/steven-donziger-chevron/

no lnx

More than a quarter-century ago, Steven Donziger, a young American human rights lawyer, joined the legal effort to force Texaco to clean up the Ecuadoran headwaters of the Amazon rain forest. Between 1972 and 1992, the company dumped toxic waste and spilled billions of gallons of oil-exposed water across 1,700 square miles, an area larger than Rhode Island. In response, a coalition of rural Ecuadorans in the Lago Agrio region sued the US oil giant, and Donziger signed on to help and soon became the lead attorney on the case.

In 2013, after a legal campaign that stretched across two continents, the 30,000 indigenous people and small farmers whom Donziger represented in a class-action lawsuit won a $9.5 billion judgment in Ecuadoran courts against Chevron, which acquired Texaco in 2001. It was one of the largest financial judgments ever against an oil company. It looked like a historic warning to polluters across the Global South. Paul Paz y Miño, the associate director of the environmental group Amazon Watch, described it as “the most important corporate accountability case in history.”

Fast-forward to today, and Donziger is under house arrest in New York City, forced to wear an ankle monitor. The lawyer, now 59, is fighting contempt charges.Meanwhile, his clients in Ecuador have received nothing from Chevron. Without that funding, they have no way to cleanse the poisoned soil or treat what they say is an elevated number of cancer cases.

The mainstream press has largely ignored the legal attacks against Donziger, but Chevron’s counteroffensive could endanger human rights and environmental work around the world. Donziger’s fate, Paz y Miño said, will set a precedent: “Whether it’s Chevron or BP or Shell or any other oil company, if you cannot hold them to account and the lawyer advocating for that case is personally attacked, who else is going to fight those kinds of cases?”

Chevron’s legal onslaught succeeded largely because of a single federal judge in New York named Lewis A. Kaplan. In 2014, Kaplan found Donziger and his Ecuadoran allies guilty of bribery and fraud, which makes it extremely difficult for the plaintiffs to collect their damages in the United States. Then Kaplan asked federal prosecutors in the Southern District of New York to bring criminal contempt charges against Donziger for refusing to turn over his electronic devices, which contain communications with his clients.When the prosecutors declined, Kaplan appointed private attorneys to prosecute Donziger—a nearly unprecedented step by a federal judge.

Judge Lewis Kaplan took the nearly unprecedented step of appointing private attorneys to prosecute Donziger. (Courtesy of Richard Baker / University of Rochester)

Kaplan’s hostility toward Donziger has been on ample display in his 21st-floor wood-paneled courtroom in downtown New York for nearly a decade. At times, he has said the pollution case in Ecuador was “not a bona fide litigation” and dismissed the Lago Agrio residents as “so-called plaintiffs.”

Martin Garbus, the legendary human rights lawyer who is part of Donziger’s legal team, is 86 years old and has appeared at hundreds of trials, including in the Deep South during the segregation era. He told me that Kaplan’s treatment of Donziger is the worst he has ever witnessed. “In the courtroom, Kaplan displayed a rage, a fury, that he channeled against Steve,” Garbus said. “He tried to humiliate him. You wouldn’t have to be an expert on the law to recognize it. It was brutal. I’ve never seen a guy eviscerated the way Kaplan tried to eviscerate Steve.”

For his part, Donziger said he hopes the Ecuadorans and their lawyers will hold Chevron accountable. He is a tall man—6 feet, 4 inches—and has been pacing restlessly around his Upper West Side apartment, reading law briefs or talking with his contacts in Ecuador by phone. These days, the coronavirus has driven almost everyone into their homes, but Donziger has already spent months “detained in a small apartment not because we did anything wrong,” he said, “but because we were successful and did a lot of things right. Facing the loss of one’s liberty not because one committed a crime but because of something dark and unaccountable in the system is terrifying. It calls into question most everything I believe about our country and my role in it.”

In an open letter to his supporters last August, Donziger wrote, “I never knew when I started working on this case in 1993 that I would face jail for standing up for the rights of my clients, who have been victimized by what is probably the world’s worst oil pollution…. Quite simply, Judge Kaplan and Chevron are working in lockstep to try and destroy me and my clients.”

Alberto Guerra, a former Ecuadoran judge who admitted to lying about his interactions with Donziger, became the target of outrage after he testified in support of Chevron.

The saga began in the 1980s, when Ecuadorans in the rain forest started to protest Texaco’s contamination. The company left Ecuador in 1992, after having dumped crude oil, drilling muds, and an oily, watery mixture known as formation water into unlined waste pits—a procedure that has been outlawed in Texas since 1969. Texaco also released billions of gallons of oil-laced water into the rain forest’s streams and lakes, even though the standard procedure in the United States has long been to inject the potentially toxic compounds safely deep underground.

Five peer-reviewed scientific studies have shown an increased incidence of cancer and other health risks in the area. (Chevron funded its own peer-reviewed study, which claimed to find no such cancer risk.)

About 20 grassroots organizations formed the Amazon Defense Coalition in the mid-1990s, and Donziger, a recent graduate of Harvard Law School, started representing the group in 1993.The Ecuadorans originally sued Texaco in the United States, but after years of delay, a federal judge in New York sent the case to Ecuador in 2001. More than a decade later, Chevron lost. Three levels of Ecuadoran courts up to the Supreme Court ratified the verdict and awarded the plaintiffs $9.5 billion. (Though even if Chevron honored the decision, none of the rain forest residents would receive a check. Instead, the Amazon Defense Coalition would use the money to scour the soil of toxins and build treatment centers for cancer patients.)

The Nation

ECUADOR’S BATTLE FOR ENVIRONMENTAL JUSTICE AGAINST CHEVRON

James North

Chevron defended itself at every stage of the proceedings in Ecuador, and for years it never challenged the legitimacy of the process. But in 2010 it changed strategies. Chevron launched a countersuit in a New York federal court, alleging that Donziger and his allies had committed bribery and fraud in Ecuador to win the case. The company invoked the Racketeer Influenced and Corrupt Organizations Act, originally designed to prosecute the Mafia, and in 2011, Kaplan presided over a new trial. Donziger and the Ecuadoran codefendants expected that such serious charges would be tried before a jury, but at the last minute, Chevron dropped its demand for monetary damages.Under RICO law, this meant Donziger and the others lost their right to appear before a jury and Kaplan alone would decide the facts of the case. Charles Nesson, a Harvard law professor, wrote recently in the Harvard Law Record that “Chevron amended its demands to cheat Donziger out of a jury.”

From the beginning of the RICO trial, Kaplan made his pro-business outlook clear. He lauded Chevron as “a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities—gasoline, heating oil, other fuels, and lubricants—on which every one of us depends every single day. I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there.”

During the case, Chevron claimed that Donziger and his clients had bribed the original trial judge in Ecuador. Chevron’s star witness was Alberto Guerra, a former judge who lost his position on the Ecuadoran bench because of corruption accusations and later, in testimony before an international trade tribunal, admitted to lying about his interactions with Donziger. The oil giant acknowledged paying Guerra and moving him and his family to a secret location in the United States. In all, Donziger estimated that Chevron has spent $2 million on the ex-judge.

Catastrophe: Cofan women stand near a pool of oil. Texaco spilled billions of gallons of contaminated water in Ecuador’s Amazon region. (Dolores Ochoa / AP)

Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times and then put him on the stand in front of Kaplan. In his testimony, the disgraced ex-judge asserted that Donziger and an Ecuadoran lawyer, Pablo Fajardo, had offered him a $500,000 bribe and that Donziger and Fajardo had ghostwritten the final judgment against Chevron. Nicolás Zambrano, the judge who had rendered the decision in Ecuador, denied Guerra’s testimony, but Kaplan accepted Guerra’s account, dismissed Zambrano, and found Donziger and his Ecuadoran colleagues guilty in 2014.

Chevron’s legal offensive is an example of a Strategic Lawsuit Against Public Participation, or SLAPP, suit. Over the past few decades, corporations have brought an increasing number of SLAPP suits against environmental and human rights groups. The idea is to spend so much money that your underfunded opponents are forced to give up.The oil giant presumably also has a related aim: to prevent the plaintiffs from ever collecting their cleanup money. Kaplan’s verdict in the RICO case means Chevron can refuse to pay them in the United States. Chevron has long since sold its remaining holdings in Ecuador, so now Donziger and the Amazon Defense Front have to chase the corporation to other countries where it still does business. Chevron’s lawyers are already trying to use the New York RICO judgment to discredit legal efforts against the company in Canada and elsewhere.

Kaplan’s persecution of Donziger did not stop after the RICO verdict. Donziger faces criminal contempt charges because he has so far refused to turn over his personal computer and cell phone to Chevron, as Kaplan ordered him to do last March. Donziger said in a press release that he is defending his clients, because his electronic communications would give Chevron’s lawyers “backdoor access to spy on everything we are planning, thinking, and doing.” He said he wants to wait until the US Court of Appeals hears his defense, after which he will promptly hand over his computer and phone if the higher court confirms Kaplan’s directive.

Sean Comey, Chevron’s senior adviser on corporate issues, litigation, and financial communications, declined to comment for this article. As a result, I was unable to ask him a series of questions, including: Is your company still paying Guerra for his cooperation? How much is it continuing to spend on the legal case? Why do attorneys representing Chevron appear at every hearing against Donziger, even ones that don’t involve the oil company? And what is Chevron’s role, if any, in the multiple legal attacks against Donziger?

Show of hands: Protesters in New York City, some with symbolically oil-stained hands, demonstrate against Chevron in 2013. (Spencer Platt / Getty Images)

Meanwhile, residents in the Amazon rain forest live and work on poisoned land. Donziger cautions that their plight must remain the center of the case. He works closely with Luis Yanza, the elected leader of the Amazon Defense Coalition and a lifelong defender of the environment; in 2008, Yanza won the prestigious Goldman Environmental Prize, an award for frontline activists. Donziger and Yanza have talked and e-mailed regularly for more than 25 years, and Donziger, who is fluent in Spanish, estimated that he has visited Ecuador 250 times to consult with his clients.

Yanza told me that cancer continues to afflict people in the rain forest. “I visited several of our communities just last weekend, and each one had two or three cases of cancer, including a girl,” he said. And there is no adequate treatment facility in the Lago Agrio area, he added. “The closest cancer treatment center is in Quito, which is seven to 12 hours by bus, depending on where you live.”

Luis Yanza, the elected leader of the Amazon Defense Coalition, speaks at a protest against Chevron in 2008. (AP Photo / Paul Sakuma)

He is indignant about the attacks on Donziger. “Steven is totally the opposite of how Chevron portrays him,” Yanza said. “He’s dedicated his life—a great part of his life—to defending people in our poor communities.” Yanza also dismissed the insinuations of critics that Donziger is manipulating the unsophisticated rain forest inhabitants. “This is the mentality of imperialism, saying that we don’t have the capacity to think and to act, to make decisions about our own lives. Steven and others in the United States do provide technical and legal help, but the fundamental decisions are made by us here.”

Donziger’s critics say that he is mainly after his percentage of the judgment, that he’s an ambulance-chasing attorney who found his way to the rain forest. But if that were true, wouldn’t Donziger have given up by now? Surely he would have cut his losses, dusted off his Harvard Law diploma, and found another potential money-making scheme. Instead, he has remained under house arrest for nearly eight months.

Donziger is also fighting to get his law license reinstated. (It was suspended in 2018 without a hearing, based on Kaplan’s findings in the contempt case.) In September and October, he appeared several times at a New York Bar Association hearing in lower Manhattan, before a polite referee named John Horan. The cramped, low-ceilinged hearing room was filled with human rights lawyers and environmentalists who support Donziger—as well as a few conservatively dressed attorneys representing Chevron. A parade of witnesses testified to Donziger’s honesty and integrity, including Rex Weyler, a founder of Greenpeace; Roger Waters of the rock band Pink Floyd; and Simon Taylor, one of the directors of Global Witness, the influential international anti-corruption organization. On February 24, Horan found in Donziger’s favor and recommended that his law license be restored. Horan, a former prosecutor, sharply criticized Chevron’s vendetta, writing, “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.” Horan’s decision must now be reviewed by a New York state court.

Steven Donziger addresses a press conference in Ecuador in 2014. Today he’s under house arrest. (Rodrigo Buendia / AFP via Getty Images)

On November 25, Donziger appeared before Senior US District Judge Loretta Preska, who will preside over his criminal contempt trial, to ask that his confinement be ended and replaced by an $800,000 bail bond, guaranteed by a number of his supporters. His attorney, Andrew Frisch, reminded the court that Donziger has a family and is not likely to abandon it to flee the United States. What’s more, Frisch pointed out, doing so would mean abandoning his clients in Ecuador. “For 25 years,” he noted, “Mr. Donziger has had his skin, his heart, and his soul in this cause, which is bigger than him.”

In the end, Preska turned down the request. “Mr. Donziger has ties to Ecuador, we know, indeed, to high-ranking government officials,” she said. “We know he has traveled to Ecuador on numerous, numerous occasions…. I find that he remains a flight risk, and accordingly, the request to eliminate monitoring and home confinement is denied.”

Donziger’s trial isn’t scheduled to begin until June 15. He is again challenging his home detention, but he could remain confined to his apartment until then. If this effort fails, he will have spent more than 300 days under house arrest.

Donziger described what it’s like to live under these circumstances. “Sleep is difficult because my ankle bracelet actually blinks and talks,” he said. “A voice reminds me to recharge the battery, which allows the state to monitor my every movement.” The bracelet is “like a giant black claw that clings to your lower leg. It’s designed to be a constant reminder of your banishment, to disorient you psychologically. Of course,” he added, “Chevron and Judge Kaplan want me to be consumed with my survival—rather than helping the indigenous people of Ecuador collect their judgment.”

James North has reported from Africa, Latin America, and Asia for four decades. He lives in New York City.

https://www.greenpeace.org/international/story/16448/chevrons-slapp-suit-against-ecuadorians-corporate-intimidation/

no lnx many

Chevron’s SLAPP suit against Ecuadorians: corporate intimidation

by Rex Weyler

CO-FOUNDER

11 May 2018 |

These days, when powerful corporations get caught breaking the law, polluting the Earth, violating human rights, or all of those crimes simultaneously, they don’t pay the fine and make amends, like normal citizens. They attack.

Corporate lawyers spend millions to assault victims with SLAPPs (Strategic Lawsuit Against Public Participation). The most recent SLAPP strategy in the US, popularized by attack-dog New York law firm Gibson Dunn, employs US “racketeering” (RICO) laws against environmental groups, victims of pollution, and their lawyers.

The purpose of a SLAPP lawsuit is not necessarily to win in court, but rather to intimidate, harass, demonize, and bankrupt the weaker opponent. “The powerful use their abundance of resources to enact revenge,” explains the American Civil Liberties Union. Many jurisdictions now ban SLAPP suits, but corporations still shop around for lax jurisdictions and sympathetic judges.

In 2013, for example, when Greenpeace Canada exposed Resolute Forest Products’ destructive logging in Québec, Resolute filed a retaliatory $7-million lawsuit against Greenpeace Canada and two staff members in Ontario, which did not yet have anti-SLAPP laws. Later, Resolute used US courts to attack Greenpeace USA and Greenpeace International under the Racketeer Influenced and Corrupt Organizations (RICO) Act, created in 1970 to prosecute organized crime syndicates. “This lawsuit,” said Greenpeace US director Annie Leonard, “is an attempt to silence, vilify, and criminalize activism.” As with most of these intimidation lawsuits, the RICO case in the US was thrown out of court, but Resolute promptly filed an amended suit.

In perhaps the most vindictive SLAPP in history, Chevron — one of the world’s largest corporations, with over $260-billion in assets — found a sympathetic New York judge to accept a RICO lawsuit against the victims of its vast oil pollution in Ecuador’s Amazon basin.

Legal thuggery

Chevron’s Amazon troubles began in 2000 when it purchased Texaco, inheriting liability for the company’s oil field pollution in Ecuador, known as the Amazon Chernobyl. Texaco/Chevron had dumped some 16 billion gallons of toxic wastewater into rivers and abandoned over 900 carcinogenic waste pits. The Indigenous rainforest inhabitants claim they were left with destroyed land, polluted water, and an epidemic of cancer and birth defects.

Abandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch Abandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch]

In 1993, the victims sued for damages in the US. Chevron fought for nine years to shift the case to Ecuador, where they may have expected to influence the courts. Chevron fully accepted jurisdiction in Ecuador, where the case began in 2003. Six years later, in light of overwhelming scientific evidence, Chevron realized that they would likely lose. In 2009 the oil company hired the notorious “rescue squad” law firm of Gibson Dunn, found a corporate-friendly Judge, Lewis A. Kaplan in New York, and began a series of SLAPP attacks on the victims, on their lawyers, and on the Ecuadorian judicial system. Over the next five years, Kaplan allowed virtually any Chevron motion, denied defendant motions, mocked the victims and their lawyers, and allowed a RICO racketeering case against two Ecuadoreans — Secoya Indigenous leader Javier Piaguaje and farmer Hugo Camacho — and their American lawyer, Steven Donziger.

Meanwhile, in Ecuador, the Indigenous and peasant villagers won a $9.5 billion compensation judgment, confirmed by appellate courts and by Ecuador’s Supreme Court (Court of Cessation). In response, Chevron sold its assets in Ecuador, fled the country, refused to pay, and threatened the victims with a “lifetime of litigation.”

The company has since retained over 60 law firms, 2,000 lawyers, paralegals, six public relations firms, squads of private investigators, and at least one bribed witness, who later admitted to lying. Lawyers for the victims estimate Chevron has spent over $2 billion to avoid payment of the court judgement, the largest collection of SLAPP suits in history.

Gibson, Dunn & Crutcher (Gibson Dunn) promotes itself as a corporate “rescue squad” specializing in “shielding clients” from “billions in liability”. They boast of getting George W. Bush installed as US president by stopping a Florida vote recount, and shielding Lehman Brothers from liabilities in the largest bankruptcy filing in U.S. history.

Randy Mastro co-chairs the firm’s litigation department; infamous for a string of court censures for fabricating evidence, lying and other criminal misconduct. In 2015, the High Court of England sanctioned Gibson Dunn for fabricating evidence to frame the political rival of the firm’s client, the President of Djibouti, Africa.

In 2005, a federal court in California sanctioned Gibson Dunn for tampering with a witness, “obstruction, gamesmanship and flagrant disregard” of Court orders. In 2007, the Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn for “blatantly and maliciously trying to intimidate” its adversary, using the judicial system for “legal thuggery”. The following year, a New York federal judge sanctioned the firm for “unacceptable shenanigans”, including hiding documents and outright lies. A California federal judge concluded that the firm’s misconduct is “a product of a culture which permeates” Gibson Dunn.

As Chevron faced losing the pollution case in Ecuador, CEO John Watson and General Counsel R. Hewitt Pate turned to Gibson Dunn’s “rescue squad” for help.The lawyers, led by Mastro, soon revealed their abusive tactics. An Oregon federal judge sanctioned the Gibson Dunn lawyers for using the discovery process — intended to provide information to opposing counsel — to harass a small legal non-profit assisting the Ecuadorian victims. In Ecuador, appellate judges rebuked Chevron’s new lawyers for threatening trial Judge Nicolas Zambrano with criminal charges and prison unless he dismissed the case.

However, the Ecuadorian decision stood, Chevron owed its victims $9.5 billion, and Randy Mastro went to work harassing the victims, their lawyers, and the Ecuadorian justice system before a gleefully encouraging Judge Kaplan in New York.

Judge as prosecutor

Chevron and Gibson Dunn knew precisely who Judge Kaplan was, when they launched their series of SLAPP suits through his court.

In 2004, Kaplan allowed the NY Police Department to arrest any “recognizable group” of 50 or more cyclists riding together, as a way of stopping bicycle protests, specifically by the environmental group Critical Mass. Although the First Amendment of the US Constitution protects “freedom of assembly”, Kaplan argued that “traffic flow” held precedent over the right of citizens to assemble in peaceful protest. When Lehman Brothers employees sued Lehmans for failing to protect their pension plan, violating the Employee Retirement Security Act, Kaplan simply dismissed the case.

At The Robing Room, a judicial review forum, one commenter warned, “if you are representing big business interests, Judge Kaplan will find a way to rule in your favor. If you going up against big business interests, you are out of luck.” Others describe Kaplan as “working for business interests” and “part of the old-boy network.”

“We knew that Gibson Dunn and Chevron had selected Judge Kaplan as an ally,” said Steven Donziger, lawyer for the original Ecuadorian plaintiffs, Frente de Defensa de la Amazonía (FDA).“A normal judge’s responsibility is to insure impartiality, decorum, and legal integrity. In the RICO SLAPP suit, Kaplan served more as a member of the prosecution team. He mocked defendants, laughed at defense motions, praised Chevron, granted their every wish, and insulted the entire Ecuadorian justice system.”

Marathon of preliminaries

The highly unusual three year discovery and deposition process, prior to the actual trial, revealed a succession of nightmarish legal irregularities:

No media confidentiality: The SLAPP began in April 2010, when Kaplan forced filmmaker, Joseph Berlinger to turn over 600 hours of outtakes from his acclaimed 2009 documentary, Crude: The Real Price of Oil. Kaplan ridiculed the journalist’s request to protect confidential sources. “If this is your best argument,” jeered Kaplan, “you’re in a lot of trouble.” A media coalition — including The New York Times, NBC, and HBO — filed a First Amendment objection with the court, and Robert Redford, writing in the Huffington Post, called the decision a “shocking” betrayal of US First Amendment rights.

Insulting a foreign Court: Kaplan and Chevron lawyer Mastro used the Berlinger hearings to insult the courts in Ecuador, where Chevron had insisted the trial be held. Mastro called the Ecuador courts “a sham” that would cause “any American to shudder at … what passes for a judicial system.” Kaplan openly laughed when asked to delay until an Ecuadorian court could provide input. “If this were the High Court in London,” Kaplan taunted, “you can be sure I’d wait.” Despite Mastro and Kaplan’s disdain here, the Ecuadorian justice system appears as impartial and honourable as any such system in any modern nation.

Insulting the defendants: Throughout the proceedings and in written memoranda, Kaplan referred to the 30,000 class-action victims in Ecuador as “so-called plaintiffs”, suggesting that their “standing in this matter is debatable to say the least.” He referred to their case in Ecuador as “the game” and “not a bona fide litigation.” When Donziger’s attorney made a routine request for time to review thousands of documents, Kaplan scoffed, “Don’t tell me about how long Mr. Donziger needs. I know the game here.”

No attorney-client confidentiality: Kaplan invoked a minor technicality to claim that Donziger, the victims’ US lawyer, had “waived” all attorney-client privilege, and insisted he turn over to Chevron lawyers 17-years of confidential communications with his clients, including, emails, notes, and his entire hard drive. Defense attorneys called this “the most sweeping forced production of privileged documents in history.”

Monster deposition:Federal rules typically limit individual depositions to one day, possibly two days in extraordinary cases. Once Chevron had all of Donziger’s confidential client files, they forced him, with Kaplan’s approval, to endure an unorthodox 18 days of discovery deposition, during which 20 or more Chevron/Gibson Dunn lawyers pelted him with petty and personal questions. According to Donziger’s RICO case rebuttal, Chevron’s lead PR consultant, revealed in 2009: “Our L-T [long-term] strategy is to demonize Donziger.”

Special Master: Judge Kaplan appointed his former law partner, Max Gitter, as “Special Master” or private judge to rule over the protracted deposition, paid entirely by Chevron. According to the Amazon Defense Coalition, Kaplan approved secret payments to Gitter, totaling “likely well over $1 million.” Like Kaplan, Gitter approved Chevron requests and dismissed defense requests. He revealed his conspiratorial relationship with Mastro and Chevron when he made a ruling based on the contents of a future Chevron document that had not yet been filed with the court. Upon realizing his error, he muttered, “Mr. Mastro, am I correct about that?” Mastro responded, “absolutely correct.”

Judge proposes Chevron strategy:During the discovery hearings, Judge Kaplan exclaimed: “Do the phrases Hobbs Act, extortion, RICO, have any bearing here?” signaling to Chevron lawyers that they should file a racketeering complaint. Shortly thereafter, on February 1, 2011, Chevron filed their RICO complaint against Donziger, Piaguaje, and Camacho, claiming that the 10-year case before three levels of Ecuadorian courts amounted to criminal extortion. Chevron asked for billions of dollars in damages, from Donziger, a sole practitioner, and two impoverished villagers, which required a jury trial. Kaplan accepted the claim and assigned the case to himself.

International powers:After the RICO filing, Judge Kaplan presumed to issue a universal injunction, allegedly prohibiting any court in any nation from enforcing the environmental judgment against Chevron, two days before the Ecuadorian court announced that judgment. In September, 2011, the US Court of Appeals vacated the injunction, chastizing Kaplan for inflicting damage on international comity, the principle among modern nations to show respect for each other’s legal systems.

Implacable hostility: By this time, Donziger and the Ecuadorian victims were almost broke, which Donziger claims, “was the whole point of Mastro’s and Chevron’s strategy.” Nevertheless, renowned defense attorney, John Keker, a former US marine, highly respected for legal integrity, offered to help the beleaguered defendants. “This case has degenerated into a Dickensian farce,” Keker said. “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”

Fishing expeditions:Chevron served Donziger, Piaguaje, and Camacho, with hundreds of new document requests and over a thousand “requests for admission,” disputed claims that Chevron could argue were “admitted” if the defendants could not respond. The impoverished Ecuadorian peasants kept almost no documents and rarely engaged in written communication. The requests imposed a massive new expense for the defendants.Kaplan also allowed Chevron to serve subpoenas on Amazon Watch, Google, Microsoft, and others, seeking email accounts to track the activities of some 100 lawyers, students, journalists, and academics that supported the Ecuadorian’s cause. “These were fishing expeditions,” Donziger explained, “that violated everyone’s right to privacy.”

Scorched Earth:By May 2013, before the actual trial had even begun, the defendants were thoroughly destitute, and their defense attorneys — Keker and Craig Smyser, who had been deferring payment — could no longer continue. Both attorneys expressed outrage at Kaplan’s refusal to grant common sense measures to streamline the burdensome process. “Through scorched-earth litigation, executed by its army of hundreds of lawyers,” said Keker, “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.”Smyser, called the lawsuit a “legal blitzkrieg” that Kaplan not only tolerated but “encouraged”.

After four years of gruelling discovery depositions and document demands by Chevron — the exhausted defendants’ best hope for justice rested on the trial jury. A jury would remove some decision-making power from Kaplan, and would hear overwhelming evidence of Chevron pollution and legal misdeeds. However, Kaplan had new surprises in store.

[pix Ecuadorians and P. Bellegarde, court, 2018 © Johanna LunaHugo Camacho, Amazon Defense Coalition (second from left) was one of the villagers named in the US RICO case. Here, he joins Domingo Paes, Achuar; Canadian Assembly of First Nations Grand Chief Perry Bellegarde, Janeth Cuji, Kichwa; and Rafael Pandam, President of the Indigenous Amazonian Parliament of Ecuador, in a Canadian court]

The RICO Trial

No jury:On the eve of the trial, Chevron decided, with Kaplan’s approval, to drop their financial damages claim, which meant that Kaplan could drop the jury and decide the outcome himself. “Chevron,” said Donziger, “apparently panicked at the notion of trying to sell their fraud and extortion claims to anyone other than Kaplan.” The defense demanded a jury trial, based on their right to a jury in a RICO case, a long-standing legal principle in cases that carry criminal implications. Kaplan refused. He would decide himself about the defendants’ guilt or innocence.

No pollution talk: Even though Kaplan had presumed the authority to “set aside” an Ecuadorian environmental judgment with a 10-year, 220,000-page evidentiary record of Chevron’s environmental crimes, and to characterize that entire proceeding as an act of “extortion,” the corporate-friendly judge barred the defense from even mentioning anything “related to the existence of pollution in Ecuador.” The pollution, he said, was “not relevant.”

No dirty-tricks talk:Furthermore, Kaplan ruled that the defense could not mention evidence of Chevron’s campaign or Gibson Dunn’s campaign of “dirty tricks” operations, past courtroom crimes, lies, and fabricated evidence. Chevron, of course, was allowed to discuss any alleged history of the defendants, dredged up from four years of ruthless depositions, spies, and private investigators.

Tsunami of paper: On the first day of trial, Chevron placed over 2,500 exhibits into evidence en masse, nearly 10,000 separate assertions, to which the impoverished defense was given less than a week to respond. If they failed, Kaplan could deem the defendants’ objection “waived.”

Anonymous witnesses: Kaplan accepted testimony from Chevron witnesses whose identity they kept hidden from the defense, preventing the normal investigation necessary for effective cross-examination. The defense expressed outrage at this violation of “basic legal principles,” which they said would “be right at home in the Spanish Inquisition.”

Editing the evidence: At this point, the defense caught Randy Mastro presenting edited video, in which he had cut out critical contextual words from Mr. Donziger’s comments. According to trial transcripts, when the defense brought this to the judge’s attention, Kaplan adjourned, did some research, and responded: “About 15 words were edited out … I assume there was no attempt to mislead.”

Chevron’s claim that the entire Ecuadorian judicial process — ten years of court trials and appellate reviews in three levels of courts — had been “fraudulent” rested, however, almost entirely upon one, single witness.

[ pix Steven Donziger at oil well © Lisa GibbonsSteven Donziger, lawyer for the Ecuador plaintiffs for 25 years, at oil site in Ecuador’s Amazon]

The Witness

In American Lawyer magazine, in 2009, David Hechler, describes Gibson Dunn’s “game plan,” to shield clients from liability in foreign pollution cases: “find witnesses” who will accuse the foreign court of “fraud.” In a separate American Lawyer story, Gibson, Dunn lawyer Robert Cooper, explains, “We prepared the witnesses to tell our story.”

In Ecuador, on behalf of Chevron, Gibson Dunn found one such witness, Alberto Guerra, a former Ecuadorian judge who had been removed for misconduct, including accepting bribes. According to Amazon Watch, Chevron lawyer Andres Rivero and Chevron private investigator Yohi Ackerman paid Guerra $48,000 in cash, and agreed to pay him $12,000 a month for at least three years. Chevron lawyers allegedly negotiated and smoothed Guerra’s immigration into the US, paid for his family to move, hired lawyers to get them green cards, and bought them a car, auto insurance, and health insurance.

Justice Now protest, Ecuador. Photo courtesy of amazonwatch.orgJustice Now protest, Ecuador. Photo courtesy of amazonwatch.org]

According to a letter from the defense to the US Department of Justice, Chevron has paid Guerra at least $2 million in cash and benefits, in exchange for false testimony. According to an affidavit by legal ethicist Erwin Chemerinsky — Founding Dean of the University of California at Irvine School of Law and a prominent US legal scholar — these payments to Guerra violated fundamental ethical rules of law.

In New York, over 53 days by Guerra’s admission, Gibson Dunn’s Randy Mastro helped him prepare his testimony about “fraud” in Ecuador. On the stand before judge Kaplan, Guerra claimed that Ecuadorian lawyers promised presiding judge Nicolas Zambrano $500,000 to allow them to write the final judgment, which Guerra claimed they gave to Zambrano on a flash drive. Guerra also claimed that he possessed a draft copy of the fraudulent judgment and that he met with the plaintiffs’ American lawyer Steven Donziger to discuss the alleged “bribe”.

Quickly, however, Guerra’s story fell apart.Immigration records showed that Donziger was not even in Ecuador when Guerra claims the meeting took place. No evidence of a flash drive was ever produced, and Guerra’s computers did not turn up the draft judgment, or even a single email from the plaintiffs’ attorneys.When this came to light, Guerra changed his story, claiming that after “strengthening my memory”he now recalled working on this draft, not at home, but rather had taken an eight-hour bus ride into the jungle, where he claimed he edited the judgment on a laptop handed to him by one of the Ecuadorians’ lawyers.

However, this story crumbled as well when forensic analysis showed that the trial judge had never downloaded the judgement from a flash drive and, rather, had opened and saved his own written judgement document more than 400 times over three months on his own office computer.

Furthermore, after the RICO trial, in a separate arbitration under the US-Ecuador Bilateral Investment Treaty, Guerra admitted under oath that he had lied to Chevron’s lawyers about his involvement in the alleged attempt to influence the Ecuadorian judgement. “I did exaggerate about [some things], yes,” said Guerra under questioning. When a lawyer asked him, “And among the ways you tried to leverage your position was to falsely tell the Chevron representatives that the Plaintiffs had offered you $300,000?” Guerra answered, “Yes, sir. I lied there.”

Nevertheless, Kaplan accepted Guerra’s testimony and rejected defense efforts— Motion to strike testimony and Motion for terminating sanctions — to strike Guerra’s testimony, which the defense claims was fabricated during the 53-day session with Chevron lawyers.

The final twist appeared as Judge Kaplan crafted a judgment. By dropping the money claim, Chevron had avoided a jury but also undermined its own case. A plaintiff must seek either money for damages or an injunction, a court-ordered condition placed on the defendant. The Court of Appeals had already reversed Kaplan’s earlier injunction and could do so again. Without a money claim or injunction, Chevron lacked standing.

Perhaps to avoid this problem, Kaplan based his guilty verdict on a “non-statutory claim for equitable relief” from an allegedly fraudulent judgment. According to Donziger’s rebuttal, the decision lacked “due process,” since the claim had never been presented by Chevron or argued in court, and “relied on vague 18th and 19th century treatises” that “had been effectively repealed and replaced by the statutory framework for enforcement of foreign judgments … during the twentieth century.” Typically, a judge can’t invent a new claim for the plaintiff after a trial has ended.

The Republic of Ecuador filed an Amicus Brief, stating that “Judge Lewis Kaplan reached far beyond the issues presented to unfairly—and unnecessarily—impugn the integrity of the Republic of Ecuador.” They stated that Kaplan’s “unfounded commentary”, against a “sovereign democracy”, was based on “unreliable evidence”. The Ecuadorian court charged that Kaplan relied almost exclusively on one Vladimiro Álvarez Grau, an avowed political opponent of the Ecuadorian government. “Chevron sought out a favorable forum,” the Ecuadorian court wrote. “The District Court [Kaplan], fulfilling Chevron’s wishes, chose to make far-reaching judgments based primarily on the opinions of a single partisan.”

Finally, the Ecuadorian court confirmed that Chevron Corporation remained responsible for the impact of its pollution. “In 2005,” the court wrote, “ChevronTexaco dropped the name ‘Texaco’ and reverted to its original name, Chevron Corporation. There is no indication in the record before us that shortening its name had any effect on ChevronTexaco’s legal obligations. Chevron Corporation therefore remains accountable.”

Furthermore, in a separate discovery hearing, the US Third Circuit court cautioned: “The circumstances supporting [Chevron’s] claim of fraud largely are allegations and allegations are not factual findings.”

This historic SLAPP lawsuit, possibly the most expensive in history, appears to have failed, even after Kaplan’s decision. Foreign courts have ignored Kaplan’s injunction, and Donziger and his clients are making progress in Canadian courts, where the victims are attempting to collect the Ecuadorian judgment by seizing Chevron Canada’s assets, and where they have won three consecutive unanimous appellate court decisions. Donziger and the Ecuadorian villagers have said they would welcome Chevron to claim in Canada that the Ecuadorian judgment was fraudulent. “If they had to bring Guerra to Canada before a neutral judge,” says Donziger, “we believe the company’s entire RICO narrative will collapse.”

SLAPP suits represent a threat to public protest and free speech. They have no place in a democracy.

References and Links

Ecuador Supreme Court (Court of Cessation): court ruling in Ecuadorean class action vs. Chevron Corporation.

ACLU, Slapped: A Tool for Activists: ACLU

Chevron assets: Fortune magazine.

Chevron: 60 law firms and 2000 lawyers: Amazon Watch, CSR.

Chevron threatens plaintiffs with a “Lifetime of litigation.”: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; and (2) Writ of Mandamus, Feb. 6, 2011: pdf

Gibson Dunn, “rescue squad,” “shielding clients”: Gibson Dunn promotions

Gibson Dunn censure by High Court of England: “Chevron Law Firm Gibson Dunn Blasted by High Court of England For Falsifying Evidence: Chevron Pit, March 25, 2015.” Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn: Montana Supreme Court document, 05-378, 2007, MT 62.

Ecuador, appellate judges rebuke Chevron’s lawyers for threatening trial Judge Nicolas Zambrano.

Gibson Dunn in Ecuador: under scrutiny for trying to mislead Congress

California, 2005, censure of Gibson Dunn

Gibson Dunn sanctioned by a federal judge for harassing a witness in a discovery action in Oregon.

Comments about Judge Lewis A. Kaplan on legal review site: The Robing Room

Robert Redford objects to Kaplan denial of media confidentiality: Huffington Post

New York Times, NBC, and HBO file a First Amendment objection with the court. NPR

Kaplan and Mastro insult the courts in Ecuador: “Writ of Mandamus, US Court of Appeals, Second Circuit, Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, petitioners, filed by Attorneys: James E. Tyrrell Jr. NY, Julio C. Gomez, NY, and Carlos A. Zelaya, II, Feb. 6, 2011: pdf

Allegations of bias by Kaplan: Writ of Mandamus, Feb. 6, 2011: pdf; and “Chevron’s RICO Fraud” pdf

“Our L-T [long-term] strategy is to demonize Donziger.” — Chevron’s lead PR consultant, 2009: (1) “Chevron’s RICO Fraud” pdf and (2) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018

Chevron’s RICO Fraud: An Abuse of Indigenous Peoples, the Environment, and U.S. Courts in the Chevron v. Donziger Case; S. Donziger and the Ecuadorian Legal Team: pdf.

Defendant’s right to a jury in a RICO case: CSR, 6 February, 2014.

Defense calls anonymous witnesses a violation of “basic legal principles … right at home in the Spanish Inquisition.”: US District Court, Southern District of New York, Case 1:11-cv-00691-LAK-JCF Document 1154 Filed 05/14/13, “Opposition to Chevron’s Motion for an order to Further protecting the Confidential declaration of Doe3.”

Gibson Dunn “game plan”: (1) “District Court Denies Enforcement of $97 Million Nicaraguan Judgment,” Gibson Dunn; and (2) “The Kill Step,” David Hechler, Sept. 20, 2009, The American Lawyer

Randy Mastro and Gibson Dunn lawyers preparing Guerra over 53 days: Huffington Post, Paul Paz y Miño, May 30, 2017.

Guerra bribed by Chevron: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; (2) “Chevron’s RICO Fraud,” legal rebuttal: pdf. Guerra bribed by Chevron: Huffington Post, Dec. 6, 2017; (3) “Chevron Executives Misused Millions of Shareholder Dollars To Bribe a Witness,” Amazon Watch, May 30, 2017.

Alberto Guerra admits lying in RICO testimony: (1) US Court of Appeals for the Second Circuit, Chevron Corporation vs. Steven Donziger, Hugo Gerardo Camacho Naranjo, et. al.; No. 14-826-cv(L), November 5, 2015. (2) “Chevron’s Star Witness Admits to Lying in the Amazon Pollution Case, Vice News, Eva Hershaw, October 26, 2015 (with Testimony from arbitration under the US-Ecuador Bilateral Investment Treaty); (3) U.S. Courts Endorsed Chevron’s Fabricated Evidence: Ecuadorian Villagers and Counsel Slam Chevron’s Star Witness for Lying and Offer Rebuttals to 12 False Findings by Second Circuit Court of Appeals”: CSR wire, May 16, 2017; and (4) Chevron’s RICO Fraud: pdf.

“Judge Kaplan Drastically Overreached With “Unlawful” Injunction To Protect Chevron, International Law Experts Say,” Rainforest Action Network.

Defense documents requesting to strike Guerra’s false testimony, citing evidence that Guerra lied, and admitted to lying: (1) Motion to strike testimony of Alberto Guerra Bastides, pdf and (2) Motion for terminating sanctions, pdf.

“Rainforest Groups Blast U.S. Judge Kaplan for Ruling Designed to Help Chevron Evade $9.5b Pollution Liability,” CSR wire, March 9, 2018.

Republic of Ecuador’s Amicus Brief denouncing the Kaplan judgement based on false testimony from a bribed witness, and denouncing Kaplan’s insults toward Ecuadorian courts.

US Third Circuit court, Chevron’s claim of fraud are allegations, not facts: Writ of Mandamus, US Court of Appeals, Case: 11-2259, 06/02/2011.

Kaplan’s judgement based on 18th and 19th century treatises: Judgement transcript: District Court, Southern District of New York: Case 1:11-cv-00691-LAK-JCF, Document 1874, Filed 03/04/14, Page 330 of 497.

Chevron lacked standing: (Article III , U.S. Constitution; the US Supreme Court has held that federal courts may hear “cases and controversies” but many not simply issue advisory opinions if there is no claim for “relief.”

“In Canada, Chevron Faces New Risks From $12b Ecuador Pollution Judgment As Shareholders Step up Pressure,” Amazon Defense Coalition, FDA, March 23, 2018

with yoo and ted olson ~ glantz

nature 406 2000

https://www.nature.com/articles/35018718

Supporters of the US tobacco industry have failed to silence one of its most prominent academic critics.

An appeals court in California has ruled that Stanton Glantz, a professor of medicine at the University of California at San Francisco (UCSF), can use his position to back the state government's anti-smoking efforts.

In 1997, Californians for Scientific Integrity — a group set up at a Sacramento attorney's office by the industry-sponsored National Smokers Alliance — sued Glantz in an attempt to stop him using his academic position to help the state of California fight smoking.

The group alleged that Glantz's 15 years of campaigning was a misuse of public funds. It also charged that the university's approval of his activities was a violation of the rights of those Californians who did not agree with the anti-smoking cause.

But two weeks ago, a three-judge panel of the Third District Court of Appeals in Sacramento rejected the allegations, reaffirming the right of any faculty member at the University of California to campaign against smoking.

“It makes me very glad to work at a university that takes academic freedom and public interest very seriously and has the courage to stand up to … the tobacco industry,” said Glantz, who is widely known for challenging the industry's claims that it was unaware of the dangers of smoking.

Citing statements on a recruitment flyer, he claims that Californians for Scientific Integrity “was set up for the express purpose of suing the University of California and silencing me”.

“It was clear intimidation,” he adds. “But this shows you can stand up and beat them.”

Mark Perry, a Washington DC-based attorney with the firm of Gibson, Dunn and Crutcher that represents the suing group, did not answer a request for comment. Perry has said separately that no decision has been reached on whether to appeal to the California Supreme Court.

Nor was there a response from the Claremont Institute, a conservative think-tank in California that filed a ‘friend of the court’ brief in support of the group.

Although the decision only addresses the rights of university staff to campaign against smoking, it could be far-reaching. Along with other cases, any faculty member of a Californian public university could use it to affirm his or her right to campaign for any cause endorsed by the state legislature.

Last month, Glantz, who conducts research in UCSF's cardiology division, won the annual Public Service Achievement Award of the lobby group Common Cause for his “tireless and tenacious” efforts against smoking. In the past, pro-smoking groups have attacked him in both California and Washington — accusing him of falsifying a result in a study of the effects of ‘second-hand smoke’, and seeking to cut off his research funds.

===

https://www.sfgate.com/news/article/Court-rules-professor-can-use-his-job-to-fight-3054189.php

Court rules professor can use his job to fight smoking

By Bob Egelko Published 4:00 am PDT, Tuesday, July 11, 2000

The tobacco industry's leading nemesis in California can continue to fight smoking from his perch as a UC professor, says a state appellate court.

An industry-allied group, Californians for Scientific Integrity, sued the University of California in 1998 over Stanton Glantz's use of his university job and resources to push for tougher state action against smoking. The suit contended Glantz's activities were a misuse of tax money.

But the 3rd District Court of Appeal said Glantz's activity was authorized by the Legislature, which has directed the state to "play a leading role in promoting a smoke-free society by the year 2000."

Glantz, a professor of medicine at UC-San Francisco, was a founder and former president of Californians for Nonsmokers' Rights. He has worked for state and local bans on smoking in public buildings and for stronger messages in state-funded anti-smoking ads.

His studies on smoking and health have been disputed by tobacco companies, which have tried to get Congress and the California Legislature to cut off his government funding. The suit by Californians for Scientific Integrity initially included a challenge to the validity of a study by Glantz that found that prohibitions on smoking in restaurants did not hurt tourism. That claim was later dropped and the group ultimately sought only to halt the alleged misuse of state funds for lobbying.

"They were attempting to intimidate me and the university," Glantz said Monday. "The university stood up to the thugs in cigarette companies again and won again."

Mark A. Perry, a lawyer for the group that sued the university, said no decision has been made on a further appeal. He said he disagreed with the court's conclusion that the general statements in state law about a smoke-free society authorized Glantz to use state funds to promote anti-smoking policies.

Perry denied Glantz's assertion that Californians for Scientific Integrity was a front for the tobacco industry, but said it is partially funded by the National Smokers' Alliance, which draws funding from tobacco companies.

The appellate ruling Thursday upheld a decision by Sacramento County Superior Court Judge Joe Gray to dismiss the suit without a trial. The court said California law forbids certain types of state-funded political activities, such as the use of state funds to influence election campaigns, but does not prohibit activity that the Legislature itself has authorized. <

===

https://www.csrwire.com/press_releases/41282-Report-Shows-Chevron-Lawyers-at-Gibson-Dunn-Falsified-Evidence-to-Target-Steven-Donziger-in-Ecuador-Pollution-Case

NEW YORK, Aug. 15 /CSRwire/ - The New York bar’s unprecedented attempt to suspend prominent corporate accountability attorney Steven Donziger without a hearing after he helped Ecuadorian Indigenous peoples win a $9.5 billion environmental judgment against Chevron is based on false testimony from a paid company witness coached 53 days by lawyers at the firm Gibson Dunn & Crutcher, according to a bombshell report produced by one of the world’s leading forensic computer investigators.

Donziger still maintains his law license and is helping his clients in Ecuador’s Amazon rainforest enforce their judgment by trying to seize Chevron’s substantial assets in Canada, where three appellate courts have issued unanimous rulings in their favor. (See here.) But behind the scenes,Chevron’s batallion-sized U.S. legal team – it has included 2,000 lawyers from at least 60 firms at a cost of at least $2 billion – has trained its sites on demonizing Donziger as part of a new corporate “playbook” invented by the company’s attorneys at the Gibson Dunn firm and marketed to scandal-plagued clients facing major liabilities.

(See this article for background on Chevron’s intimidation campaign and here for an article in the Huffington Post about how Chevron’s defense has unraveled.)

According to multiple sources, the Gibson Dunn marketing playbook involves what the firm calls the “kill step” to defeat the enforcement in the U.S. of civil money judgements obtained from foreign courts. The “kill step” usually involves accusing opposing counsel of “fraud” and other misconduct to try to intimidate them into withdrawing, thereby leaving the corporation’s victims defenseless and unable to continue with their cases. If actual evidence of fraud does not exist, as in the Ecuador matter, the Gibson Dunn lawyers will hire investigators to bribe foreign witnesses to concoct false stories of “fraud” about opposing counsel to be presented in U.S. courts; the firm’s lawyers are theoretically protected from any downside risk by the general inability of U.S. courts to force foreigners to appear or be deposed.

The Gibson Dunn “kill step” is now being deployed against Donziger, who faces an interim suspension by the New York bar after staff attorneys designated him as an “immediate threat to the public order” based on highly disputed testimony from a Chevron-paid witness who has admitted under oath that he repeatedly lied to the company. Prominent members of the legal community, including First Amendment lawyer Marty Garbus and Harvard Law Professor Charles Nesson, expressed “shock” and “dismay” at the bar’s decision to suspend Donziger without a hearing. Donziger is fighting the allegations in a post-suspension hearing that likely will take place in September and be open to the public.

Gibson Dunn used the same “kill step” strategy roughly ten years ago on behalf of the Dole Food Company, which faced major liability in Nicaraguan courts for causing infertility in banana workers after it used an illegal pesticide that had been banned in the United States. According to multiple sources, evidence emerged in the Dole case that Gibson Dunn’s lawyers and investigators engaged in perjury, witness bribery, and fabrication of evidence to have the company’s liability thrown out of a California state court, according to legal documents. A key part of the strategy was an attack campaign leveled against the U.S. lawyer for the Nicaraguan victims, Jorge Dominguez, that included an attempt to have him disbarred, according to lawyers and others who worked on the matter.

Among other violations in the Dole case, Gibson Dunn’s lawyers hired an investigations firm in Mexico (called Investigative Research and headed by ex-CIA agent, Douglas Beard) to recruit and pay a Nicaraguan man, Jamie Gonzalez, to provide a false affidavit that fabricated a meeting attended by the Nicaraguan trial judge where the case supposedly was “fixed” against Dole. Although the meeting never took place, lawyers at the Gibson Dunn firm – including Scott Edelman, Ted Boutrous, and Andrea Neumann, all of whom orchestrated the scheme -- used the fabricated “evidence” of the meeting to have an ethics complaint filed against California lawyer Dominguez, much as the firm is now doing to Donziger with testimony from an admittedly corrupt witness from Ecuador bribed with at least $2 million from Chevron to concoct his story. (The attempt to disbar Dominguez failed; the attempt to disbar Donziger in New York is pending but he still maintains his law license in another jurisdiction.)

Donziger, a Harvard Law graduate who has not received even a single client complaint in 25 years of legal practice, is fighting back against what he called a “wide-ranging conspiracy” hatched in Chevron’s executive suits and Gibson Dunn’s New York offices to try to taint him with “fraud” by using false or distorted evidence as a way to evade the liability to the Indigenous groups in Ecuador. Those involved in the conspiracy, he said, include Chevron General Counsel R. Hewitt Pate, Gibson Dunn’s chief of litigation Randy Mastro, as well as several Gibson Dunn lawyers who had previously been involved in corrupting the Dole cases, including Neumann and Boutrous. In a letter to the U.S. Department of Justice, Donziger laid out evidence that the Gibson Dunn firm and Chevron have carried out a conspiracy to falsify evidence as part of its “kill step” strategy to attack the Ecuador pollution judgment, now worth $12 billion with statutory interest.

“What Chevron and Gibson Dunn are doing to Steven is lawless and the kind of thing one normally sees in North Korea or Saudi Arabia, not in New York,” said Rex Weyler, the co-founder of Greenpeace and a supporter of the Ecuadorian communities. “It is shocking to witness how the New York judiciary has allowed itself to be used by Chevron and Gibson Dunn as a key arm of the company’s unethical litigation strategy that ultimately is designed to screw over some of the most vulnerable people on the planet who trust and rely on Steven to advocate for them. The Department of Justice needs to open an investigation of this law firm for its pattern of engaging in unethical and even criminal acts in the Ecuador case and others.”

The Gibson Dunn “kill step” in the Ecuador case resulted in a highly controversial civil “racketeering” judgment in 2014 from New York trial judge Lewis A. Kaplan against Donziger and his Ecuadorian clients that was based largely on the false testimony of Chevron’s paid witness, Alberto Guerra. Guerra’s payments have included an enormous monthly salary at least 20 times higher than his prior salary in Ecuador, health care, and the reimbursement of all income tax payments as well as expenses to move his entire family from Ecuador to the United States. Guerra admitted to taking bribes in Ecuador and has been on the Chevron payroll for several years at an undisclosed location in the United States without doing any work other than serving as a witness. (See this summary of Guerra’s perjury and this legal brief documenting Chevron’s and Gibson Dunn’s corrupt conduct.)

Guerra also has admitted under oath that he was coached for 53 days by Gibson Dunn’s lawyers, including Mastro and Avi Weitzman, before he went into Kaplan’s court and accused Donziger of approving a bribe to an Ecuador trial judge so the plaintiffs could “ghostwrite” the judgment against the oil major. Later, Guerra recanted key parts of his testimony under oath in a private arbitration proceeding while a forensic report proved he lied about both the bribe and the allegation that Donziger orchestrated the “ghostwriting” of the judge. Donziger has consistently denied Guerra’s allegations.

Despite what appear to be the many deep-seated and even fatal problems with Guerra’s testimony, two staff attorneys at the New York bar grievance committee – who oversee attorney conduct – relied on his story about judicial bribery in Ecuador to suspend Donziger from the practice of law without a hearing by designating the New York lawyer an “immediate threat to the public order”. Yet Kaplan’s findings, used by the New York bar in its decision, have been rejected by at least 17 appellate judges in Ecuador and by Canada’s entire Supreme Court when it ruled unanimously in favor of the Ecuadorians in a judgment enforcement action in that country. Four layers of courts in Ecuador – including the country’s Constitutional Court – have affirmed voluminous evidence that the oil major dumped billions of gallons of toxic waste into the rainforest, decimating indigenous groups and causing an outbreak of cancer that has killed or threatens to kill thousands of people.

(See here and here for comments by prominent lawyers, including Harvard Law Professor Charles Nesson and trial attorney Richard Friedman, in support of Donziger. See this article on how Ecuador’s Constitutional Court recently ruled 8-0 to affirm the judgment against Chevron. Here is a summary of the evidence against Chevron.)

Donziger, who has been widely lauded for his public service work, criticized the New York bar for refusing to consider the extensive evidence that emerged after Kaplan’s trial that renders his findings erroneous or at least highly problematic. Donziger maintains wide support in the legal and environmental communities; several prominent environmental groups and lawyers, including Amazon Watch and Earth Rights International, have weighed in against Chevron with amicus briefs while Greenpeace Founder Weyler calls him a “hero” of the environmental movement. Musician Roger Waters even released a video on behalf of the Ecuadorians criticizing Kaplan.

Among the evidence ignored by the two staff attorneys of the bar grievance committee who are handling the matter – Jorge Dopico and Naomi Goldstein -- is a critical report from noted forensics expert J. Christopher Racich submitted in a parallel private arbitration proceeding initiated by Chevron against Ecuador’s government. The Racich report completely undermines Chevron’s defense strategy and renders Kaplan’s findings that the Ecuador judgment was “ghostwritten” as false, according to Aaron Page, a human rights lawyer who represents the Ecuadorians. (See here for the Racich report proving Chevron’s witness lied and here for a summary of that report.)

Racich’s investigation undermines Kaplan’s core findings that were then used by the bar grievance committee to suspend Donziger as follows:

**The report demonstrates that increasing amounts of the Ecuador judgment against Chevron were added to Word documents on the office computers of the Ecuador trial judge and that those documents were edited and saved in painstaking fashion more than 400 times. This corroborates the sworn testimony of the Ecuador trial judge, Nicolas Zambrano, that he wrote the judgment in his office and debunks the testimony of paid Chevron witness Guerra that it was given to the judge on a flash drive just prior to its issuance, after being written by the plaintiffs.

**There is no evidence from the Ecuador trial judge’s computers that any document was copied from a flash drive to create any part of the trial court judgment, as Chevron paid witness Guerra had claimed in testimony relied on by the New York bar staff attorneys to suspend Donziger.

**Chevron’s paid expert, Spencer Lynch, independently examined the same computers and presented no evidence suggesting that any part of the Ecuador trial court judgment was received by trial judge Zambrano via email or from a flash drive – again debunking Guerra’s testimony.

**There is no document on the computer of Chevron witness Guerra that became the trial court judgment, directly undermining Guerra’s sworn testimony that he edited the judgment on his computer at the behest of the plaintiffs just before it was issued.

According to the Racich report, the text and metadata of the documents on the computers of Ecuador trial judge Zambrano that contain the trial court judgment show that “these computers were used to create a document, add text to it, edit text within it, and save the document repeatedly over a four-month period of time.” “Furthermore, there is no evidence in the metadata that the versions of the [judgment documents] were provided in any way by Mr. Guerra, Pablo Fajardo [the lead Ecuadorian lawyer for the villagers], or anybody else,” Racich concluded.

Donziger criticized the bar grievance committee for relying on Kaplan’s findings and ignoring the Racich report and other critical evidence, while demanding that his designation as an “immediate threat to the public order” be lifted. He also demanded to be allowed a fact hearing to present the Racich report and other critical evidence that will demonstrate that Kaplan’s findings are erroneous and therefore cannot be used by the bar grievance committee as a basis for attorney discipline, although he believes they could be used as a basis for discipline against the Gibson Dunn lawyers who falsified evidence. Further underscoring the problems with the decision of the New York grievance committee is that the District of Columbia bar has decided to not move against Donziger based on the Kaplan decision given that the many problems with his findings and the fact that several issues involved are still being litigated in Canadian courts.

(For a detailed rebuttal of Kaplan’s erroneous findings, see Chevron’s RICO Fraud.)

“The bar grievance committee needs to demonstrate independence from Judge Kaplan and Chevron’s powerful and unethical law firm and really look hard at the evidence,” said Donziger. “In my opinion, it is a dereliction of duty for the New York grievance committee to assume that obviously flawed findings from a federal judge cannot be questioned when the judge never reviewed the Racich report or other critical evidence before coming to his conclusions, and when his findings have been contradicted by 17 appellate judges in another jurisdiction.

“Further, in my view there is indisputable evidence that Chevron’s lawyers at Gibson Dunn engaged in unethical and criminal activity to frame me with false witness testimony to please their most lucrative client, and that they have done this in other cases as part of a playbook marketed to high-paying corporations,” he added. “This begs the question: why is the New York bar grievance committee not investigating Chevron’s lawyers at Gibson Dunn for their patently unethical conduct, and instead focusing on me, a sole practitioner and human rights advocate?”

Gibson Dunn’s aggressive approach and willingness to cross the ethical line for its clients has frequently backfired against the law firm.

In a case eerily similar to Donziger’s experience, Gibson Dunn recently was sanctioned by the High Court of London for fabricating evidence to try to frame a political opponent of its client, then the President of the African nation of Djoubati. The Montana Supreme Court fined the firm $9.9 million for engaging in “legal thuggery” while a New York federal judge sanctioned Gibson Dunn for engaging in “unacceptable shenanigans” including hiding documents and outright lies. In the Ecuador case, the firm threatened the Ecuador trial judge with prison time unless he ruled in Chevron’s favor. (See this article by Greenpeace’s Weyler for a summary of Gibson Dunn’s many problems.)

Some of Donziger’s defenders, including human rights lawyer Page (see here), say he has been targeted with what is probably the most well-financed corporate retaliation campaign in history. Chevron in 2011 sued Donziger for $60 billion – thought to be the largest potential personal liability ever – before dropping the entire damages claim on the eve of Kaplan’s “racketeering” trial to avoid a jury of impartial fact-finders. Under the U.S. Constitution, a claim not involving money damages can be heard by a judge alone – a fact understood by Chevron that Donziger said guaranteed he would not be able to mount a meaningful defense given Kaplan’s obvious bias in favor of the company. (See this press release and this report for the many procedural and ethical problems with the Kaplan trial.)

The Racich report also corroborates :{the sworn testimony of Donziger:(style="padding:0px;margin:0px;border:0px;font-weight:inherit;font-style:inherit;vertical-align:baseline"):}:, who repeatedly has said under oath he engaged in no wrongdoing and that Guerra's testimony was false. For Donziger’s main appellate brief challenging Kaplan’s factual findings, see :{here:(style="padding:0px;margin:0px;border:0px;font-weight:inherit;font-style:inherit;vertical-align:baseline"):}:.

For purposes of protecting his due process rights and bearing witness to a flawed process, Donziger said he plans to invite the public to his post-suspension hearing where he will try to reverse the bar’s decision to designate him as an “immediate threat to the public order.” However, the first “referee” appointed to oversee that hearing, corporate defense attorney Paul Doyle, resigned after several prominent lawyers backed Donziger and criticized the lack of due process afforded by the grievance committee. It also turns out that Doyle had represented Union Carbide in the Bhopal disaster in India.

===

aug 2013

http://www.democracynow.org/2013/8/6/chevron_to_pay_2_million_for

https://en.wikipedia.org/wiki/Chevron_Richmond_Refinery

http://grist.org/climate-energy/a-year-after-a-refinery-explosion-richmond-cali-is-fighting-back/

http://www.sfgate.com/news/article/Chevron-guilty-of-refinery-criminal-charges-4707675.php?cmpid=twitter

As part of the deal, Chevron agreed to pay $2 million in fines and restitution and accept additional oversight and inspection of its operations during a 3 1/2-year probation period, authorities said.

The misdemeanor charges, alleging violations of California's health and labor codes, were filed Monday by the Contra Costa County district attorney and the state attorney general after an investigation of the fire in a crude oil processing unit on Aug. 6, 2012.

In a prearranged deal, an attorney for the company immediately entered pleas of no contest before Superior Court Judge William Kolin in Martinez, said Deputy District Attorney Steve Moawad.

http://www.eastbaytimes.com/west-county-times/ci_23798674/chevron-pleads-no-contest-criminal-charges-stemming-from

Chevron committed six violations of labor, health and safety standards, according to the complaint. The violations included failure to "correct deficiencies" in equipment, negligent emissions and failure to prevent employees' exposure to hazardous conditions.

Chevron pleads no contest to criminal charges stemming from Richmond refinery fire

By Robert Rogers and Malaika Fraley

Contra Costa Times

POSTED: 08/05/2013 11:25:36 AM PDT | UPDATED: 3 YEARS AGO

Aug 10:

Chevron refinery fire one year later: Fallout, impact show no signs of waning

MARTINEZ -- Chevron will pay $2 million in fines and restitution after pleading no contest Monday to six misdemeanor criminal charges stemming from a fire at its Richmond refinery last year.

Chevron attorneys accepted the terms, including 3 1/2 years of probation, $1.28 million in fines, and more than $720,000 in restitution payments to three different agencies.

The penalties resulted from joint charges filed Monday in Contra Costa Superior Court by state Attorney General Kamala Harris and Contra Costa County District Attorney Mark Peterson. The terms of the plea had been agreed to by both sides before Monday's hearing.

TV news crews, along with the curious, gather on a hillside in Point Richmond to photograph the the fire in an oil unit at the Chevron refinery in

TV news crews, along with the curious, gather on a hillside in Point Richmond to photograph the the fire in an oil unit at the Chevron refinery in Richmond, Calif., Monday, Aug. 6, 2012. (D. Ross Cameron/Staff) (D. Ross Cameron/Staff file)

"This criminal case achieves our goals of holding Chevron accountable for their conduct, protecting the public, and ensuring a safer work environment at the refinery," Peterson said in a news release. Peterson also praised Chevron for its "commitment to do more than what is required by law" to prevent future accidents.

The Aug. 6 fire knocked out the refinery's No. 4 crude unit and sent more than 15,000 people to area hospitals complaining of respiratory discomfort and other symptoms. Subsequent investigations have revealed that the fire was caused by a corroded pipe that failed, and that the pipe had been recommended for replacement several times during the previous decade.

In addition to the $1.28 million in fines, Chevron will pay restitution to Richmond BUILD, a local workforce development program, Bay Area Air Quality Management District, Cal/OSHA and the state Attorney General's Office.

Chevron spokeswoman Melissa Ritchie issued a statement Monday saying "Chevron U.S.A. has resolved this matter by agreement with the offices of the Contra Costa County District Attorney and the Attorney General of the State of California." Ritchie added that the company is committed to improving safety at the refinery.

"We have reimbursed community members and local government agencies in Richmond and West Contra Costa County for medical and response-related costs," Ritchie said. "We are conducting a comprehensive inspection of our refinery."

Frank Pitre, of Cotchett, Pitre & McCarthy, the law firm which is suing Chevron on behalf of the city, said it was too early to speculate on what impact if any the criminal case will have on the city's suit.

"What I can say is this is the same company that just last Friday issued a press statement calling Richmond's lawsuit meritless, yet at the same time was negotiating a settlement to resolve criminal charges against them," Pitre said. "The hypocrisy is astounding."...

CPP AG

While Schimel says he is protecting Wisconsin businesses and rate payers, the lawsuits are a strategy in a national playbook written by the fossil fuel industry and anti-government ideologues like the Koch's Americans for Prosperity and the Koch-funded American Legislative Exchange Council (ALEC). In addition to urging the AGs to sue, ALEC is pushing one cookie-cutter "model" bill designed to block implementation of the power plan and another to allow industry to bankroll the state litigation. Apparently, ALEC is worried that state taxpayers might get riled when they learn about their AG's efforts to attack the CPP.

Schimel's decision to go to bat for polluters comes as no surprise. While running for office in 2014, Schimel said he would sue and was promptly backed by a mysterious group called the "Rule of Law Project." CMD traced the group to the law firm of C. Boyden Gray. A key founder of the Federalist Society and former White House Counsel, Gray is the chief architect of the 40-year attack on regulations protecting public health and the environment. Gray's firm has been representing big business and utility coalition in the fight against the CPP.

Now Schimel is bringing in a compatriot of Gray's straight out of coal country. He announced that Misha Tseytlin was to serve as Wisconsin's first "Solicitor General" with a $1 million dollar budget.

Tseytlin is a key player in the national game plan to derail the effort to rein in carbon emissions. Tseytlin may not have yet taken the Wisconsin bar, but he is listed as General Counsel on the West Virginia lawsuit challenging the CPP. He also battled an EPA rule which restored Clean Water Act protections to wetlands and streams. In private practice, he worked for Gibson, Dunn & Crutcher, a major law firm representing energy clients like Chevron in its fight against a $19 billion dollar judgement for polluting the Ecuadorian rainforest. Tseytlin is a "proud member" of the Koch-funded Federalist Society.

For Schimel and Tseytlin apparently, clean air and clean water are not something to celebrate, but a regulatory burden for polluters.

Schimel argues that the CPP will hit Wisconsin harder because it is more reliant than other states on coal, but the argument relies on smoke and mirrors say utility and energy experts.

"Wisconsin is in a relatively good position to meet CPP standards compared to states like West Virginia and North Dakota," said Keith Reopelle Senior Policy Director for Wisconsin Environment. "But we would be in an even better position had the state revisited renewable portfolio standards or invested more in energy efficiency as neighboring states have done."

Wisconsin utilities have met renewable portfolio standards two years ahead of schedule, but no effort has gone into expanding them and setting new targets.

Schimel also argues that the CPP will cost the state $13 billion, but that number is bunk, reports Reopelle, who says that was based on incorrect assumptions regarding the proposed rule and never adjusted for the final published rule.

Schimel once voted to bar state employees from talking about and working on climate change. Now heclaims "this is not about pollution" and carbon "isn't the traditional thing that most people think about as pollution." This leaves Reopelle shaking his head. "Carbon dioxide is certainly a pollutant, accumulating in our atmosphere and causing global warming," he said. It was found to be a pollutant actionable under the Clean Air Act by the U.S. Supreme Court in 2007.

"The Clean Power Plan is a commonsense approach that will reduce carbon pollution, lower health risks, and create countless clean energy jobs in Wisconsin," says Kerry Schumann of the Wisconsin League of Conservation Voters. The administration is "wasting taxpayer dollars and valuable time by joining this suit."

Even though nations in Paris are closer to an accord to rein in carbon pollution than ever before, it is likely to be non-binding and well short of what is needed to prevent super droughts, rising seas, and mass extinctions.

Schimel and the other AGs are hoping that they can blow enough smoke to convince negotiators that the Obama administration cannot deliver on any climate commitment. But in doing so they find themselves on the wrong side of public opinion, the law, and of history.

- See more at: http://www.prwatch.org/news/2015/12/12995/brad-schimels-dirty-power-play#sthash.Byr5sGZu.dpuf

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hired by christie to invesitgate bridge scandal (former fed prosecutor as he was, appt by b2); vacation together trms

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Scalia also became a source of controversy when his law firm represented George W. Bush in the 2000 Supreme Court case that halted the Florida presidential ballot recount and resulted in Bush becoming president of the US. While Eugene Scalia was not directly involved in the case, the federal statute on recusal requires that a justice recuse himself from any case in which their spouse or child is "known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." [16] As a partner in the law firm, Eugene Scalia profited directly from the case both financially and professionally, yet his father Antonin Scalia refused to recuse himself from the case, casting a vote that helped determine who would become the next president of the United States.

Lawyers for Bush-Cheney

"In late 2000, Gibson, Dunn & Crutcherspent a long moment in the spotlight, when partner TheodoreOlsontook on the role of national co-chair of :{Lawyers for Bush/Cheney}:. Olson, who brought with him a record of eight wins and four losses in front of the nation's highest court, argued Bush's case in front of the Supreme Court in two out of the three proceedings. The star litigator has been credited as being instrumental in bringing about the final decision in favor of Bush. The firm did have one potential conflict of interest in taking the case: partner Eugene Scalia is the son of Supreme Court Justice Antonin Scalia. Gibson [W. Bush] made it known that the younger Scalia would have no involvement with the case, and Justice Scalia did not recuse himself from the case. (This proved crucial in the Supreme Court's 5-4 decision.)" [17]

wiki

Gibson, Dunn & Crutcher is a global law firm, founded in Los Angeles in 1890. The firm is one of the most prestigious and selective in the nation, and ranks among the most successful firms globally.^[3] Gibson Dunn has nearly 1,000 attorneys and over 2,000 staff located in 17 offices around the world, including North and South America, Europe, Asia, and the Middle East. In 2010, American Lawyer named Gibson Dunn the "Top Litigation Department" of the year.^[4] The firm's best-known attorneys and alumni include former United States Solicitors General Theodore Olson and Ken Starr, Eugene Scalia, and Miguel Estrada.

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http://en.wikipedia.org/wiki/Gibson,_Dunn_%26_Crutcher

lots of boards

Notable cases

The firm's attorneys have argued more than 100 cases before the United States Supreme Court.^[11]
The firm is representing Chevron in its long-running, $27 billion environmental dispute in Ecuador.^[12][13]
The firm is defending Wal-Mart Stores, Inc. in the landmark $11 billion employment discrimination class action Dukes v. Wal-Mart Stores, Inc.. Partner Theodore Boutros, Jr. argued the case before the U.S. Supreme Court in March 2011. In June 2011, the Supreme Court unanimously reversed the Ninth Circuit's order certifying the plaintiff class. ^[14]
The firm is representing Mark Zuckerberg, founder of Facebook, in a $7 billion contract dispute with purported seed money financier Paul Ceglia. ^[15].
The firm is representing the Dole Food Company in a multi-billion dollar toxic tort suit in Nicaragua involving allegations of farmworker sterility stemming from Dole's use of certain pesticides. After the firm uncovered substantial evidence of fraud and a conspiracy between the plaintiffs and Nicaraguan judges to extort Dole out of billions with manufactured claims, courts in the United States dismissed multiple related suits against Dole and refused to enforce several Nicaraguan judgments. ^[16]
The firm is defending Intel against several multi-billion dollar antitrust lawsuits filed by AMD and the European Union.^[17]
Gibson Dunn is currently defending Amazon.com against patent infringement claims relating to the company's development of the Kindle.
The firm is representing Viacom in its billion-dollar copyright infringement lawsuit against Google and YouTube.^[18]
The firm's attorneys sued for the right of same-sex couples to marry by arguing in the case of Perry v. Schwarzenegger that California's Proposition 8 is unconstitutional. Theodore B. Olson acted for two gay couples against Proposition 8. U.S. District Court Chief Judge Vaughn Walker ordered the ban to be lifted, and that decision is now on appeal before the Ninth Circuit. The case will likely go to the US Supreme Court. Theodore Olson has been named Lawyer of the Week by The Times on this case.^[19]
In 2009, the firm represented NBC Universal in its contract dispute with Conan O'Brien.^[20]
Also in 2009, the firm defended The Williams Companies, Inc., in a $3 billion securities class action in connection with the bankruptcy of Williams' former telecommunications subsidiary. ^[16]
The firm defended a conglomerate of domestic and international auto manufacturers—including Honda, Toyota, General Motors, DaimlerChrysler, Ford, and Nissan—against a multi-billion dollar global warming lawsuit filed by the State of California. A federal court granted Gibson's motion to dismiss in 2007.
Gibson attorneys also represented a coalition of automakers, engine manufacturers, and dealers before the United States Supreme Court in Massachusetts v. EPA.
On March 1, 2006, Gibson Dunn’s Theodore Olson and Miguel Estrada argued consecutive cases before the United States Supreme Court, Olson on behalf of DaimlerChrysler in DaimlerChrysler Corp. v. Charlotte Cuno, et al., and Estrada on behalf of Northern Insurance in Northern Insurance Co. v. Chatham County, Georgia. The firm won both appeals unanimously.
Current partner Theodore Olson served as lead counsel for George W. Bush in Bush v. Gore, which secured Bush's election as President of the United States. Olson subsequently served as United States Solicitor General during Bush's first term, 2001-2004.
Olson, along with David Boies, argued Perry v. Schwarzenegger, challenging California Proposition 8
Awaiting the decision from the Supreme Court on Conrad Black's appeal conducted by Miguel Estrada
Olson represented the NFL Players Association during the 2011 NFL lockout

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Court Dismisses Chevron’s Lawsuit Against Human Rights Lawyer

Author: Kerr & Wagstaffe LLP

Today a federal court in San Francisco dismissed in its entirety a lawsuit Chevron Corporation filed against Cristobal Bonifaz, a human rights lawyer who had previously lost a case he filed against the energy giant. The earlier action was filed on behalf of indigenous residents of the Ecuador Amazon rainforest over their claims they became ill with cancer from oil pollution of their water supply. The claims were later dismissed, and Chevron…filed the current lawsuit against their lawyer…claiming he knew there was no basis for the environmental case… The Court ruled that…Chevron was unable to produce any evidence that suggested he knew one of the plaintiffs did not have cancer…Chevron will be required to pay the legal expenses Mr. Bonifaz incurred…

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A California federal judge threw out eight of nine claims in Chevron's malicious prosecution case against a Massachusetts lawyer on Wednesday. But while she granted most of the lawyer's anti-SLAPP motion, U.S. District Judge Claudia Wilken left the door open a crack for Chevron to try to prove one claim that Cristobal Bonifaz maliciously sued the energy giant... Kerr & Wagstaffe partner Jacqueline Scott Corley heralded Wednesday's decision as a vindication of her client [Bonifaz]... [Scott Edelman of Gibson, Dunn & Crutcher, which represents Chevron, said,] "Under no circumstances is this a vindication of Mr. Bonifaz. The case that he brought remains what it always was -- an effort to extort Chevron..."

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blog:

ESTRADA BLOCKBUSTER EXPOSE

Wrote Briefs For Florida 2000 Coup; Possible "Elf"

"American Success Story" Proven A Partisan Ideologue, Hack

No Paper Trail? Wrong, MW's! You're Just Lazy; Corrupt

Miguel Estrada, White House nominee for the prestigious and influential D.C. Federal Court of Appeals, helped mastermind the Republican legal strategy in the 2000 election crisis that led to the notorious Supreme Court decision in Bush v. Gore, an MWO investigation has revealed.

Estrada may also have been one of the so-called "elves," including among others his close friend Ann Coulter, who conspired with Kenneth Starr's Office of Independent Counsel and the Paula Jones legal team to lay the perjury trap that led to the partisan impeachment of Bill Clinton.

Following the stonewalling lead of the White House, the national media have been content to report that Estrada has left no paper trail about his political affiliations and judicial views. Instead, reporters have pumped up the phony G.O.P. story that Estrada is some kind of up-by-the-bootstraps American success story.

Even those in the media who have condemned the Estrada nomination, including the editorial board of the New York Times, have done so because Estrada's record appears so sketchy. In fact, there is much more to that record than the Times or anyone else has reported.

The evidence shows a pattern of partisan zealotry and right-wing connections on Estrada's part. It also conveys the strong impression that Estrada has received his nomination chiefly because of his legal work on behalf of the Bush campaign in 2000-- and, quite possibly, because of his involvement in the right-wing lawyers' conspiracy to bring down Clinton by any means necessary.

After practicing corporate law for three years with the New York firm of Wachtell, Lipton, Rosen & Katz, Estrada, the son of a prosperous family from Honduras, was appointed by the George H.W. Bush administration, first to the U.S. Attorney's Office in New York and then, in Washington, to the post of Assistant to the Solicitor General. After leaving government service in 1997, he was recruited to join Ted "Arkansas Project" Olson's D.C. law firm, Gibson, Dunn, and Crutcher. There, Estrada worked alongside Olson and such high-profile active G.O.P. attorneys as Sean Royal and Gene Scalia (son of Supreme Court Justice Nino Scalia). The firm -- and particularly its appellate division, which Estrada helps head -- is notorious as, in the words of American Lawyer magazine, the "rescue squad" for huge corporations hit with adverse consumer liability and public tort judgments.

But its biggest rescue operation was conducted in Florida in 2000 on behalf of George W. Bush.

Olson was, of course, be the chief lawyer for the Bush campaign during the 2000 election dispute, arguing its case before the Supreme Court. In 2001, after revelations about his own efforts to conceal his involvement in the so-called Arkansas Project, the rabid anti-Clinton effort funded by Richard Mellon Scaife, Olson was nearly rejected as a nominee for Solicitor General -- but he squeaked through amid the political chaos surrounding Senator Jim Jeffords's decision to switch from the Republican to the Democratic party.

What has gone unnoticed until now in the latest nomination struggle is that Miguel Estrada was a chief member of the Olson team that devised strategy for Bush v. Gore. Estrada's key role as a partisan legal strong-puller and sharpshooter was explained more than a year ago by Susan Beck in The American Lawyer. But amid the talk about Estrada's meager paper trail, that report has been buried -- until now.

It is one thing for an utterly devoted right-wing Republican partisan like Ted Olson to serve as Solicitor General, arguing the Administration's cases before the federal courts. Bad as it is, that basically involves Olson doing what he has done for many years -- advocating, from a particular extreme point of view.

It is another thing entirely to place Olson's partisan comrade-in-arms on the second most important federal court. Federal judges are expected to be objective and dispassionate, not partisan. They are not supposed to be advocates; they are supposed to be JUDGES.

Yet with the Estrada nomination, the Bush White House is trying to slip by a documented advocate and pretend he is qualified to be a judge.

At one level, the nomination appears to be a political payback to Estrada for services rendered in 2000. Olson has gotten his; so have several others at Gibson, Dunn; now it's Estrada's turn. At another level, it is the latest move by the White House to turn the judiciary over to the most reactionary forces in the legal world, who seek the repeal of virtually every piece of social and economic legislation enacted since the advent of the New Deal.

And there may be even more to it. When he is not litigating on behalf of Republican candidates and large corporations, Estrada is involved in the same right-wing circles frequented by Olson and his friends, above all in connection of the Federalist Society in which he is an active member. And there is strong reason to believe that Estrada's connections are deeper, and more nefarious, than this.

During the partisan drive to oust President Clinton, a group of right-wing lawyers -- dubbed by one of their number, Ann Coulter, as the "elves" -- worked day and night to bypass the law and bring down the president. Aside from Coulter, one of the chief elves was George Conway, a former associate of Estrada's at Wachtell, Lipton. Last Friday, Coulter not only acknowledged that she and Estrada were good friends: she went on to note that, in the past, they have had contacts, with Estrada giving her ideas, correcting her errors, and sending her, as she put it, "stuff."

In 1998, Estrada was no longer working for the government. He was a high-profile litigator at one of the nation's right-wing law firms of choice, headed by Ted Olson, late of the Arkansas Project. He knew at least two of the "elves," Ann Coulter and his ex-colleague George Conway.

Was Estrada involved with the "elves" as well, either directly or as a deep-background supplier of ideas and "stuff"? Ann Coulter knows the answer to that question, as does George Conway. But they have, highly suspiciously, clammed up about Estrada, Coulter most visibly on national television.

It would certainly be interesting if the news media, which has fallen down on the job completely on this important matter, did some digging -- and asked Coulter and Conway as well as Estrada to come clean about his possible "elf" services in 1998.

But interesting -- and necessary -- as that investigation is, its results cannot override the plain evidence about Estrada's partisan involvement in Bush v. Gore. That evidence alone ought to be sufficient to disqualify him from the federal bench.

If only the news media had done its job, perhaps even this White House would have thought twice about making this cynical nomination. But they haven't -- so now it's up to you.

URGENT ACTION:

Email Senators Patrick Leahy, John Edwards, and Charles Schumer, bringing to their attention Miguel Estrada's disqualifying partisan involvement in Bush v. Gore and his possible involvement with the "elves." Tell them that one of the architects of the G.O.P.'s legal strategy during the 2000 election dispute has no business being named to a high federal court. Ask them, urgently, to do everything in their power -- up to and including a filibuster of the Senate -- to keep this partisan advocate from being named to the federal bench.

Senator Leahy

Senator Edwards

Senator Schumer

http://archive.democrats.com/view.cfm?id=11854

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Jan 28, 2013 - Environmental groups that have spent years suing coal companies over ... They also claim the Legislature weakened state water-quality standards to favor the coal industry ... The groups argue that EPA should have rejected as inadequate a list of polluted streams ... Ted Olson, Gibson, Dunn & Crutcher.

, we told you Gibson Dunn lost its appeal of the $1.3 million payment a British court ordered the firm, along with its client, the Republic of Djibouti, to pay. As part of that order, the court found that a Gibson Dunn partner, Peter Gray, had provided false information. Based on these allegations, Gray had been suspended from the firm,