gibson dunn bak

no lnx below

ted fucking olson ~ donziger

gimmesome, dung and crusher

===

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.”

---

===

Bloomberg

paywall

By Paul M. Barrett

September 26, 2013

You know a major corporation really cares about an appellate-court argument when they bring out one of the bar’s big guns. No gun is bigger than Theodore Olson.

In federal court in New York today, Chevron deployed Olson, a former U.S. solicitor general and noted Supreme Court advocate, to convince a three-judge panel to clear the way for a civil racketeering suit the oil company wants to start next month against plaintiffs’ attorney and environmental activist Steven Donziger. Olson, who at the moment is also representing BP in that energy giant’s liability battle in New Orleans over the 2010 Gulf of Mexico oil spill, seemed to get the job done for Chevron....----

amz post excerpt

You know a major corporation really cares about an appellate-court argument when they bring out one of the bar’s big guns. No gun is bigger than Theodore Olson.

In federal court in New York today, Chevron (CVX) deployed Olson, a former U.S. solicitor general and noted Supreme Court advocate, to convince a three-judge panel to clear the way for a civil racketeering suit the oil company wants to start next month against plaintiffs’ attorney and environmental activist Steven Donziger. Olson, who at the moment is also representing BP (BP) in that energy giant’s liability battle in New Orleans over the 2010 Gulf of Mexico oil spill, seemed to get the job done for Chevron.

(Before we go further, let the record reflect that the three-judge panel in New York did not issue an immediate ruling, and it’s always a little risky to predict appellate jurists’ thinking based on their murmurings at oral argument. That said, let’s go for it.)

Today’s skirmishing before the U.S. Court of Appeals for the Second Circuit appeared to focus on the most abstruse of legal doctrines, ranging from mandamus to collateral estoppel. But the real question hovering above the packed courtroom on Foley Square was the future of a $19 billion oil-pollution verdict imposed on Chevron by a provincial trial court in the Ecuadorian rainforest in February 2011. Upheld on appeal by the Ecuadorian judiciary, the judgment—the biggest environmental verdict ever—reflects a finding that Texaco egregiously contaminated the Amazonian jungle when it produced oil there decades ago. (Chevron acquired Texaco in 2001.)

Chevron claims that the verdict, engineered by Donziger, a New York solo practitioner, reflected an elaborate sham: an international conspiracy that included bribery, fabrication of evidence, and coercion. Donziger denies these allegations, although a number of lawyers and scientific experts who have supported him over the years have denounced him and disavowed their past work.

The oil company, for its part, has sued Donziger in federal court in New York under the federal anti-racketeering statute. That suit is one facet of Chevron’s international campaign to resist ever paying a dime of the Ecuadorian judgment. The company doesn’t have any assets to speak of in Ecuador.

In response to Chevron’s counterattack, Donziger and his allies have repeatedly tried to get the U.S. district judge overseeing the racketeering suit, Lewis Kaplan, removed from the case. Donziger’s team contends that Kaplan has shown favoritism toward Chevron and racist disdain for the Ecuadorian pollution victims. Today’s hearing represented what will likely be Donziger’s last try to have Kaplan yanked before the suit against Donziger and his clients commences on Oct. 15.

Olson today dismissed the attack on Kaplan’s integrity as “despicable” and praised the trial judge, a former corporate law firm partner nominated to the bench by President Bill Clinton, as “extremely able, extremely experienced.” The Chevron attorney, a partner with the law firm Gibson, Dunn & Crutcher, argued that Kaplan “has bent over backwards” to be fair to Donziger and his clients. If Kaplan mishandled the upcoming trial, Olson added, Donziger & Co. can appeal the results. Based on their questions and observations, that last argument appeared to appeal to all three judges on the Second Circuit panel, Debra Ann Livingston, Barrington Parker, and Peter Hall.

Donziger attended the arguments but didn’t address the court. Instead, the Ecuadorian plaintiffs were represented by James Tyrrell, a prominent litigator and partner with the firm Patton Boggs. Tyrrell told the Second Circuit panel that Kaplan had defied an earlier procedural order from the appellate court. Kaplan, according to Tyrrell, has indicated he intends to put the very legitimacy of the Ecuadorian judiciary on trial in New York—something that would exceed the trial judge’s authority.

“All that is correctable on appeal,” Judge Parker told Tyrrell. “If you’re right, you’ll win.” The implication of Parker’s comments was that Kaplan should not be preemptively removed. Taking a trial judge off of a case happens “only in the most extraordinary circumstances,” observed Judge Livingston. She hinted that she did not see such circumstances in this case.

Tyrrell didn’t back down. “It is, respectfully, a setup,” he said of the proceedings before Kaplan. Without endorsing that view, Judge Hall of the Second Circuit responded that if Tyrrell’s fears came true, he could address them after Kaplan rules.

Both sides presented their arguments today with skill. Tyrrell, although not as well known as Olson, held his own as an advocate. So many attorneys wanted to watch the arguments that most had to settle for closed-circuit television coverage outside the filled-to-capacity courtroom. Still, more may have been obscured by the session than clarified.

The litigation over responsibility for addressing oil pollution in the Ecuadorian rainforest began in 1993. In addition to the U.S. and Ecuador, countries hosting offshoots of the legal warfare include Argentina, Brazil, and Canada. Hundreds of millions of dollars—maybe $1 billion—have been consumed by lawyer fees and related expenses. So far, though, the endless hearings, depositions, and cross-examinations haven’t cleaned a single waste-oil pit or contaminated jungle stream....

bloomberg-businessweek-chevron-rolls-out-the-big-gun-ted-olson

12 Key Facts Essential to Understanding the Chevron-Ecuador Litigation

Steven Donziger Is an Adjudicated Racketeer. The U.S. District...

Donziger

Revisiting Steven Donziger’s fraud against Chevron in Ecuador

A dishonest campaign is underway to rehabilitate disbarred lawyer Steven...

Donziger_Fired

Follow the money: Why disbarred lawyer Steven Donziger was fired by his Ecuadorian clients

Disbarred lawyer Steven Donziger likes to present himself to the...

Gabel

Dutch appellate court rejects Ecuador’s bid to set aside Chevron arbitration win

===

https://www.alternet.org/news-politics/harlan-crow-2662291337/

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.

David CreminsDavid Cremins is a JD candidate at Stanford Law School.

===

https://www.alternet.org/2021/02/rachel-maddow/

Far-right One America News must pay $258,391.50 in legal fees to MSNBC.

"A federal judge in California has ordered Herring Networks, the parent company of far-right conservative media organization One America News Network (OAN), to pay MSNBC and host Rachel Maddow $250,000 in attorney's fees stemming from a defamation lawsuit that was dismissed last year," Law & Crime reported Saturday.

"Herring in July 2019 filed a lawsuit against Maddow which claimed the liberal host had defamed OAN when she discussed reports that one of the network's contributors also worked for the Russia state news organization Sputnik. Maddow went on to state that OAN 'literally is paid Russian propaganda,' which OAN's parent company claimed was false and defamatory. Herring, the parent company, then filed a defamation lawsuit seeking $10 million,"Law & Crime explained. "Attorneys representing Maddow and MSNBC responded by filing a special motion to strike the case under California's Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) law."

U.S. District Judge Cynthia Bashant sided with MSNBC, entitling the network to expenses under California law.

"The court calculated that Maddow's team of high-priced attorneys from the law firm Gibson Dunn—including famed First Amendment attorney Ted Boutrous, Jr.—were entitled to collect on 363.1 hours of work totaling $247,667.50, plus an additional $10,724 for hours billed by paralegals," Law & Crime reported.

Read the full report.

omfg

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.

ref 1

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

many lnx

Chevron’s SLAPP suit against Ecuadorians: corporate intimidation

by Rex Weyler 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 withSLAPPs (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 theAmazon 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.

[pix Abandoned toxic oil dump, Ecuador. Courtesy of Amazon WatchAbandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch © 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 whoJudge Kaplanwas, 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 © Johanna Luna]

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 © Lisa Gibbons

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.

[ pix Justice Now protest, Ecuador. Photo courtesy of amazonwatch.orgJustice Now protest, Ecuador. Photo courtesy of amazonwatch.org © Amazon Watch]

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

ref2

https://www.huffpost.com/entry/chevrons-ghostwriting-cha_b_7191074

no lnx many

Karen Hinton Contributor

Chief Strategy Officer/Fenton

Chevron’s “Ghostwriting” Charge Unraveling in Ecuador Pollution Case

05/05/2015 10:38 am ET Updated Dec 06, 2017

Will U.S. Appellate Court Consider New Evidence Or Close Its Eyes?

Chevron’s “ghostwriting” charge against Ecuadorian villagers and their attorneys, who together have held the oil giant accountable for toxic dumping in the Amazon rainforest, is unraveling.

In the unraveling is a string of “missing” serial numbers on USB drives or flash drives that Chevron’s lawyers and forensic experts have failed to produce.

Before I explain, though, let me set the scene.

The Ecuadorian villagers, who two decades ago sued Chevron for intentionally contaminating their ancestral lands in the Amazon rainforest, have obtained a game-changing forensic report that blows apart Chevron’s fake narrative that it was the victim of a fraud.

This report, explained by Courthouse News, concluded that Chevron’s explosive charge that lawyers for the villagers “ghostwrote” a $9.5 billion Ecuador judgment against Chevron is a crock.

I say “game-changing” because the forensic report — by J. Christopher Racich, one of the leading experts in the field of computer forensics — will be used by the villagers in enforcement courts in Canada, Brazil and possibly other countries to prove the judgment is valid and Chevron has been falsifying evidence.

Arrogantly, Chevron has refused to pay the $9.5 billion to clean up its toxic mess, forcing the Ecuadorians to try to seize company assets in other countries. Chevron previously sold off all of its assets in Ecuador to make itself judgment proof even though it insisted the trial be conducted in the courts of the South American country.

This new forensic analysis found that the 188-page Ecuador judgment was written gradually over a four-month period, from October 2010 to February 2011, when the Ecuador court issued the ruling. (See the 20-page report here.) Importantly, the report also found no evidence “that a litigation document was transferred to (the judge’s) computers while he was drafting the judgment.” (Racich reviewed the hard drives of the two computers used by the Ecuador judge to write the judgment against Chevron.)

After losing the case in its chosen forum of Ecuador, Chevron filed a retaliatory “racketeering” lawsuit against the villagers and their lawyers in the U.S. in a last-ditch attempt to try to block enforcement of the judgment. (See my previous blogs for more details about the history of the case.) This new recent forensic analysis was conducted after that trial for a separate but related arbitration claim filed by Chevron against the Government of Ecuador.

This finding could be the most important one in this seemingly never-ending litigation.

That’s because Chevron General Counsel R. Hewitt Pate and his top lawyer, Randy Mastro of the controversial law firm Gibson Dunn & Crutcher (which recently was found by the High Court of England to have falsified evidence in another case), hoped the forensic analysis would corroborate testimony by their discredited witness, Alberto Guerra.

[2015-05-01-1430506034-8262307-photomastro.jpeg

Chevron Lawyer Randy Mastro

2015-05-01-1430505960-2939122-photoGuerra.jpeg

Chevron’s Discredited Witness Alberto Guerra]

Chevron has paid Guerra an estimated $2 million in cash and benefits and moved him and his family to the U.S., apparently in exchange for his testimony. The former Ecuador judge is an admitted criminal; he testified under oath to taking numerous bribes before he was removed from the bench. See here.

After being coached for 53 straight days by Chevron’s lawyers, Guerra testified in a U.S. court that one of the Ecuadorians’ lawyers gave the Ecuador judgment to Judge Nicolas Zambrano in late January 2011, just days before the judgment was issued. Racich found no evidence that this occurred.

Meanwhile, neither Chevron nor the arbitration panel hearing the company’s claim that it has not been treated fairly in Ecuador’s court system has released Chevron’s own forensic analysis of the judge’s computers conducted by Spencer Lynch of the New York-based digital firm Stroz Friedberg. From various legal motions filed in the arbitration and the Racich report, though, we know this:

Chevron expert Lynch agrees with Racich that no evidence exists that documents having to do with the judgment were transferred to Zambrano’s computers during the period of time that he was writing the judgment between October 2010 and February 2011, directly contradicting Guerra’s testimony.

However, here is where the plot thickens.

The 32-year-old up and coming Stroz Friedberg examiner, based in London and schooled at Duke University, claims that five USBs he obtained from Guerra were connected to Zambrano’s computers.

The only problem is that nothing — as in zero — has been found on Guerra’s computer that resembles the judgment, even though he testified at one point the judgment was on his computer. (We note that Guerra and Zambrano served on the same court at one time and it would not have been unusual for them to share documents.)

And, finally, the Chevron bombshell:

Lynch did not provide the serial numbers of the five USBs.

Now, forensic experts never forget to write down the serial numbers of flash drives. That would be like a police officer forgetting to write down the tag number of a speeding car he’s stopped.

Here’s what Racich had to say about Lynch’s missing serial numbers.

“Because the serial numbers were not recorded by (Chevron’s) forensic examiners from Mr. Guerra’s original USB devices (a standard and fundamental step during imaging of any Computer equipment), no forensic examiner can conclude with a degree of scientific certainty that the images currently in our possession are of the USB devices that were attached to Mr. Zambrano’s computers....

“In a forensic case involving the acquisition of electronic data, it is highly unusual that these serial numbers were not recorded — Stroz Friedberg recorded them for all other devices they imaged from Mr. Guerra .... Without this information, Mr. Lynch is merely speculating that the USB images taken from Mr. Guerra’s USB devices that we have both examined are in fact the same USB devices that were attached to Mr. Zambrano’s computers.”

Forgot the serial numbers? Mistake? Not a chance. Holding back the serial numbers allows Chevron’s lawyers to do nothing but sow seeds of doubt when, in truth, they have nothing but bad news in their own forensic analysis.

During the recent oral argument in the appeal of the “fraud” charges, Judge Richard Wesley of the United States Court of Appeals for the Second Circuit indicated a “dispute” existed among the three judges on whether they could consider the Racich report in the appeal. Significantly, the lower court judge in that extremely problematic case did not have the Racich report.

I realize that sometimes evidence obtained after a trial cannot always be used in an appeal, but we are talking about delaying and possibly denying justice to tens of thousands of Ecuadorians because they could not afford the costs to do the same forensic analysis prior to the “fraud” trial and Chevron could afford to pay a witness up to $2 million.

We also are talking about the reputation of human rights lawyers Steven Donziger* and Pablo Fajardo, who should have a legal path of some sort to clearing their names.

I don’t know about you, but I will take the word of a highly-respected American forensic expert with a stellar reputation over a self-confessed corrupt judge who’s been paid a king’s ransom by an oil company trying to evade responsibility for its contamination.

PS: If Stroz Friedberg sounds familiar to you, it’s because that’s the firm Chevron lawyer Mastro hired to conduct a forensic analysis of the State of New Jersey’s computers, used by Governor Chris Christie and his entourage of political appointees involved in Bridgegate.

Mastro’s “independent” and “exhaustive” review of Bridgegate produced no incriminating findings.

Meanwhile, indictments against the Governor’s political staff have been handed down by the U.S. Attorney’s office.

It would appear Stroz Friedberg and Mastro “missed” something again.

*Disclosure: I work pro-bono for a group of indigenous Ecuadorians and their U.S. legal adviser, Steven Donziger, to help hold Chevron accountable for one of the world’s largest environmental disasters in the Amazon rainforest. From May 2008 to March 2013, I was paid by Donziger to represent the Ecuadorians as their U.S. media spokesperson.

punked by api

https://theintercept.com/2019/04/03/branded-content-fossil-fuel-companies/

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. <

huffpo refs

https://chevroninecuador.org/assets/docs/2011-12-05-cvx-fee-order.pdf

no cut paste

404 wayback fail 519

http://files.courthousenews.com/2015/02/27/amazon-judges-data-secretly-scanned-in-9-8b-chevron-fight.htm

---

threat judge

https://chevroninecuador.org/news-and-multimedia/2011/0203-chevron-threatened-judge-with-prison-time-if-he-failed-to-grant-motions

Chevron Threatened Ecuador Judge With Prison Time If He Failed to Grant Motions, Court Papers Say

On Eve of Judgment, Chevron Resorting to Intimidation Tactics

Amazon Defense Coalition

3 February 2011 - FOR IMMEDIATE RELEASE

Contact: Karen Hinton at +1.703.798.3109

Lago Agrio, Ecuador – Chevron's lawyers in Ecuador have threatened the trial judge overseeing the historic environmental trial where the company faces a potential judgment in the billions of dollars, according to court papers made available by the plaintiffs.

In a series of recent legal papers, Chevron lawyers Enrique Carbajal and Alberto Racines threatened trial Judge Nicolas Zambrano with criminal sanctions and prison if he failed to grant their motions asking for a dismissal of the case, which has been on trial since 2003 in the Amazon town of Lago Agrio. The threats were clearly outlined in motions signed by the two lawyers and submitted to the court, said Pablo Fajardo, the Ecuadorian lawyer for the plaintiffs.

"Chevron's threat to the judge is another example of its abuse of the rule of law and its desperation to avoid a judgment," said Fajardo, who represents an estimated 30,000 Ecuadorians who brought the lawsuit.

Judge Zambrano recently sanctioned and fined Racines approximately $1,600 for repeatedly filing the same motions in an effort to delay the Ecuador trial. A third Chevron lawyer in Ecuador – Patricio Campuzano – was sanctioned for the same reason 2009. Also that year Racines exploded in anger at a trial testing site when oil was found at one of Chevron's so-called "remediated" sites.

The first motion, filed by Carbajal on Chevron's behalf, falsely claimed that the signatures of twenty of the 48 signatories to the lawsuit – almost all indigenous persons and impoverished farmers – were forged by attorneys for the plaintiffs. The plaintiffs rejected the claim and most of the 20 farmers appeared at a recent public event to verify that they actually signed the original lawsuit.

In the motion seeking the annulment of the trial based on the supposedly "forged" signatures, Carbajal wrote to the judge: "If you deny this motion, your conduct will fall within Article 292" of the criminal code of Ecuador, which requires a criminal sentence of up to six months for any public official who does not report a crime.

One day later, Racines filed a motion asking Judge Zambrano to nullify an expert report submitted by the plaintiffs by Dr. Lawrence Barnthouse, a renewed American natural resources ecologist. Racines, also citing Provision 292 of Ecuador's criminal code, said to the judge that "if you don't do it, you will have committed a criminal infraction punished by prison."

"Threatening judges with criminal sanctions is typical of the Chevron way when it comes to litigating in Ecuador," said Fajardo. "They would never attempt such intimidation tactics in U.S. courts."

In addition to the threats, Chevron has repeatedly been charged with trying to use intimidation tactics to dissuade law firms and financial partners from working with the plaintiffs, who live in dire conditions in approximately 80 different indigenous and farmer communities spread throughout the rainforest.

In recent days, Chevron has sued each of the 47 named plaintiffs in New York federal court; sought an unprecedented injunction from a U.S. federal judge to bar any American lawyer working on the case from enforcing a judgment from Ecuador's court anywhere in the world; and has actively tried to depose several of the plaintiff's lawyers. All told, the company has tried to depose 33 people in the U.S. who have worked with the plaintiffs.

Chevron also filed a civil RICO suit in New York, claiming the indigenous groups were trying to extort money from Chevron via the lawsuit.

"Chevron is acting out of pure desperation because we are nearing judgment," said Karen Hinton, the spokeswoman for the plaintiffs. "The company's new legal actions are designed to intimidate lawyers and funders and to provide a fake cover story for shareholders when the company is hit with an adverse judgment."

The environmental lawsuit charges Chevron with deliberately discharging more than 16 billion gallons of chemical-laced "formation water" into the streams and rivers of the Amazon over a 26-year period when it operated a large oil concession, decimating indigenous groups and poisoning an area the size of Rhode Island. The case was moved from U.S. federal court at Chevron's request after Chevron filed 14 sworn affidavits praising Ecuador's court system.

The top end of the damages claim recently submitted by the plaintiffs in their final argument is $113 billion. The plaintiffs have submitted tens of thousands of chemical sampling results that prove extensive soil contamination at 100% of Chevron's 378 former well and production sites in the Amazon.

"In the end, the voluminous scientific evidence will triumph over Chevron's intimidation tactics," said Fajardo.

huffo ref

http://www.courthousenews.com/2015/02/27/amazon-judges-data-secretly-scanned-in-9-8b-chevron-fight.htm 404

1st

2nd time

http://www.law360.com/articles/621877/exclusive-gibson-dunn-partner-submitted-false-affidavits

http://www.bailii.org/ew/cases/EWHC/Comm/2015/769.html

6 min video

https://www.youtube.com/watch?v=l618BhvWkz4

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

(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.)

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

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

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

REPORT

CHEVRON’S LAWYER, SPEAKING FOR MAJOR OIL COMPANIES, SAYS CLIMATE CHANGE IS REAL AND IT’S YOUR FAULT

In a court hearing in San Francisco, oil companies publicly backed the science of climate change

By Sarah Jeong and Rachel Becker Mar 22, 2018, 2:23pm EDT

Illustrations by Alex Castro and Garret Beard

https://www.theverge.com/2018/3/22/17151532/climate-tutorial-san-francisco-oakland-lawsuits-judge-alsup-chevron-exxon

In a federal court in San Francisco on Wednesday, major oil companies concurred with the “scientific consensus,” saying it was “extremely likely” that human activity has been driving global warming since the middle of the 20th century. They just don’t think they can be sued for it.

“Chevron accepts what the IPCC [Intergovernmental Panel on Climate Change] has reached consensus on concerning science and climate change,” said Theodore Boutrous, who represents Chevronand is heading up the assorted legal team for the five oil companies that are defendants in this lawsuit. But, he said, that didn’t mean that a civil lawsuit was the right way to address climate change. “It’s a global issue that requires global action,” he said.

Over the course of two hours, Boutrous ran through the findings of the most recent IPCC report (released in 2013), acknowledging that global temperatures were rising due to carbon dioxide caused by human activity, that other factors were negligible, and that as a result, sea levels were rising. No time was given to any denials of climate science, with Boutrous sticking closely to the substance of the IPCC report. Even his attempt at implying that his client was not at fault was framed within the substance of the IPCC report; he said that the report never said “extraction or production” of oil was the cause of carbon dioxide emissions, but rather the “economic activity” that burned fossil fuels.

MAJOR OIL COMPANIES WENT ON THE RECORD TO SAY THAT HUMAN-CAUSED CLIMATE CHANGE IS REAL

Judge William Alsup, who is presiding over the lawsuit, is giving the other oil companies — ExxonMobil, ConocoPhillips, Royal Dutch Shell, and BP — a week to quibble with anything Boutrous said in court about climate change. “Chevron welcomes meaningful efforts to address the issue of climate change, but litigation is not an appropriate tool for accomplishing that objective,” Sean Comey, a spokesperson for Chevron, said in an emailed statement to The Verge. “Chevron provided a neutral assessment of the science based on the most recent comprehensive scientific assessment.” The other companies did not immediately respond to requests for comment.

Wednesday’s session was not a trial, or really even a hearing in the typical sense of the word. It was, in Judge Alsup’s terminology, a “tutorial” — a session in which the legal teams for both sides present background facts for his edification. It’s not discovery, it’s not evidence, and just because it was presented Wednesday, it’s not necessarily admissible for a jury in the future should this case go to trial. Nonetheless, the hearing marked a moment in which major oil companies went on the record to say that human-caused climate change is real. At this point, the science is so undeniable that it no longer makes sense for oil companies to try and refute it.

“RHETORICAL CLAIMS DON’T CUT THE MUSTARD.”

This is thefirst time Judge Alsup — or any judge, really — has held a climate change tutorial. These types of sessions are not typical in the legal system, but Alsup has requested tutorials in other cases in the past, including tutorials on immigration for a DACA case and LIDAR for the Waymo v. Uber case. Alsup’s approach to science has not gone unappreciated in this case. Myles Allen, a climate scientist from the University of Oxford, who presented before the judge on Wednesday, says, “The court is evidently taking our science as seriously as they’re taking the science involved in patent law cases, where the court really does have to understand the technicalities and where rhetorical claims don’t cut the mustard.”

At the start of the tutorial, Alsup warned the press, “You will probably find this boring,” reiterating that this was all so “the poor judge can learn some science.” (Judge Alsup was previously an engineering major at Mississippi State, ultimately graduating with a math degree.) Although Alsup promised that “if you get bored, you can just leave,” the throng of observers that packed the gallery and an additional overflow room barely thinned through a five-hour session that started early in the morning.

Lawyers for the cities of San Francisco and Oakland were largely silent at the tutorial, with Steve Berman, representing the San Francisco city attorney’s office, stepping up to the podium only to introduce climate scientist after climate scientist.

Only Boutrous spoke on the defendants’ side, not bothering to bring on any scientists to speak for the oil companies. Boutrous appeared to have studied the IPCC’s 2013 AR5 report from start to finish, and he stuck closely to what he characterized as the scientific consensus. (When it was his turn, Don Weubbles of the University of Illinois sniped at the limited scope of Boutrous’ presentation, saying pointedly that “science did not stop” after 2013.)

It became swiftly apparent that the judge was taking the opportunity to satisfy his curiosity on absolutely anything that had occurred to him, prompting Allen at one point to spread his arms out in a wobbling motion to describe the motion of carbon dioxide molecules when they absorb infrared radiation. At another point, Judge Alsup and Allen went on a long, wandering detour about whether the relationship between two variables was logarithmic or linear.

The wide range of questions put Boutrous at a disadvantage. At one point, the judge interrupted him with a question about undersea lava flows and ocean temperatures, citing an interesting “geology show” he had seen on television a few weeks ago. Because this fell far outside the scope of any of the presentations or the IPCC report, his question went unanswered.

The unnamed geology show wasn’t the only kind of preparation that Alsup had made. He also mentioned that he had rewatched An Inconvenient Truth, and acknowledged that he had been reading several books on climate science and its history, even challenging Boutrous at one point about a scientist that he had left out in his rundown of the history of climate science.

“You jumped over 1938. Who was in 1938?” he asked the lawyer.

“... 1938?” Boutrous asked.

“There was a guy named Callendar,” Alsup prompted. “The Callendar effect is named after him.”

The science experts didn’t seem used to lecturing to a single student who is completely unabashed about asking any question that pops into his head. They occasionally had trouble indulging or recovering from tangential lines of questions, but still, they had a wider range of knowledge to draw from when put on the spot. Although Boutrous — a noted Supreme Court litigator — couldn’t answer questions about undersea lava flows or why the rise of sea water is inconsistent across the planet, he was at least at ease with a judicial style of questioning, and his strategy was clear: if the oil companies were going to go on the record with a vocal acceptance of climate science, they would take the opportunity to have a professional rhetorician sow doubt about where oil companies fit into the blame game.

The thrust of Boutrous’ presentation wasn’t that climate science was wrong — he, too, took a turn running through graphs showing the precipitous rise in global temperatures and sea levels — but he also took care to show the rate of emissions in China and India, lingering particularly on a graph that said that China’s emissions currently exceed the United States. He said that this was largely due to the burning of coal, which is being reduced in the US. In fact, Boutrous even credited hydraulic fracking with reducing carbon dioxide emissions in the US.

Boutrous seemed to say that fossil fuel companies aren’t responsible for how people use their products. “IPCC doesn’t say that the extraction or production of fossil fuels leads to emissions,” Boutrous said. “It’s energy use, the economic activity, that drives the demand for fuel that leads to emissions.”

“WE’RE JUST MAKING THE CIGARETTES, PEOPLE ARE CHOOSING TO SMOKE.”

It’s an argument we’ve heard before from tobacco companies, says Peter Frumhoff, chief climate scientist at the Union of Concerned Scientists. “Tobacco companies for years said that ‘We’re just making the cigarettes; people are choosing to smoke,’” Frumhoff says.And for years, courts sided with the companies, he says — until public opinion began to change. “It was the consequence of their efforts to disinform that led juries and judges — who are members of the public — to say, ‘Wait a minute,’” Frumhoff says. The lawsuit itself says bluntly that the defendants “borrowed the Big Tobacco playbook in order to promote their products.” The complaint accuses the oil companies of “promoting massive use of fossil fuels by misleading the public about global warming by emphasizing the uncertainties of climate science.”

In response, Boutrous’ presentation on the history of climate science focused on the controversy around the theory that climate change was caused by humans. Chevron may be willing to say nowthat climate change was caused by humans, but surely it wasn’t wrong to say otherwise then. For example, both Boutrous and Allen mentioned Swedish chemist Svante Arrhenius who, at the turn of the 20th century, grew increasingly concerned that anthropogenic carbon emissions could increase global temperatures.

But Boutrous took time to emphasize that, until about the 1960s, most scientists didn’t believe him. This isn’t strictly wrong — although Judge Alsup himself noted that in 1938, Guy Callendar linked climate change to anthropogenic carbon dioxide emissions. Even NASA’s Earth Observatory agrees that Arrhenius was largely disregarded until the second half of the century. “It’s trial and error. Scientists debating each other,” Boutrous said in court. “Questioning other scientists’ views is part of the scientific process.” (Boutrous did not call any scientific experts on behalf of the oil companies to speak before Judge Alsup Wednesday about how the scientific process is conducted or anything else.)

“WHAT’S ACTUALLY SAID IS NOT NEARLY AS IMPORTANT AS WHAT THE EVIDENCE IS TO SUPPORT IT.”

Boutrous drew quotes from IPCC reports across the years, showing the increasingly strong language that was used to characterize its conclusions about climate change. In 1995, the IPCC said that “the balance of evidence suggests” human-caused climate change, the 2007 report goes with the phrase “very likely,” and by 2013, it becomes “extremely likely.” In other words, the oil companies are emphasizing that it’s taken time for scientists to reach a consensus on climate change. It’s a strategy that climate law expert Jessica Wentz at Columbia Law School was expecting. “Not directly attacking the science, but undermining it by emphasizing uncertainty,” she says.

The legalistic reading of the IPCC’s statements was frustrating to Allen, he said in an interview with The Vergeafter the tutorial concluded, because to scientists, the evidence and context are more important than the language. “The question of whether somebody writing a scientific paper uses the word ‘likely’ or ‘very likely’ is kind of neither here nor there,” Allen says. “What’s actually said is not nearly as important as what the evidence is to support it.”

Still, on the basic facts, the two sides agreed more than they disagreed — which kept arguments over whether or not climate change was real from derailing the hearing. This wasn’t for lack of trying on the part of the deniers: academics William Happer, Richard S. Lindzen, and Steven E. Koonin requested leave to file their own scientific presentation, which questions anthropogenic climate change. Happer and Lindzen are climate deniers; Koonin claims climate science is “not settled.” Another group of deniers, led by a British viscount with a degree in classical architecture, asked to file an amicus brief in the case. Neither group has yet received permission to contribute to the case, but the judge has asked both to disclose their funding sources and any links to either of the parties in the case. Notably, Koonin disclosed that he had “some money vested in a BP pension plan arising from his employment that ended nine years ago.” (He was chief scientist at BP for five years, according to his NYU bio.)

THE JUDGE WORE HIS “SCIENCE TIE”

Alsup insisted that this tutorial was a purely educational opportunity, and his enjoyment of the session was obvious. (For the special occasion, he wore his “science tie” under his robes, printed with a graphic of the Solar System.) But the hearing could have impacts beyond the judge’s personal edification, Wentz says. “It’s a matter of public record, so you certainly could refer to it in a court of public opinion, or the court of law in the future,” she says. Now, Wentz says, there’s a formal declaration in the public record from a Chevron lawyer, stating once and for all: “It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.

Theodore J. Boutrous, Jr., a partner in the Los Angeles office of Gibson, Dunn & Crutcher, is Co-Chair of the firm’s Appellate and Constitutional Law Group, Crisis Management Group, and Transnational Litigation Group. He is a member of the firm’s Executive and Management Committees.

Mr. Boutrous has represented clients in the federal and state appellate courts throughout the nation in a wide spectrum of cases. He has argued more than seventy appeals, including before the Supreme Court of the United States, ten different federal circuit courts of appeals, eight different state supreme courts and a multitude of other appellate and trial courts. He has successfully persuaded courts to overturn some of the largest jury verdicts and class actions in history. In 2011, he successfully represented Walmart before the Supreme Court of the United States in the Dukes case, which unanimously reversed what had been the largest employment class action in history and established important standards governing class actions (Wal-Mart Stores, Inc. v. D**ukes).

In 2013, he successfully represented the prevailing party in obtaining a unanimous Supreme Court decision enforcing the Class Action Fairness Act (Standard Fire Insurance Co. v. Knowles). Also in 2013, Mr. Boutrous successfully represented plaintiffs in the Supreme Court in a case invalidating California’s prohibition on same-sex marriage, Proposition 8 (Hollingsworth v. Perry). In other ongoing constitutional litigation, Mr. Boutrous represents California schoolchildren asserting a state constitutional challenge to laws that prevent school administrators from hiring and retaining the most effective teachers (Students Matter Website). (See attached list of representative cases.)

Mr. Boutrous also represents media organizations, reporters, and others in First Amendment matters such as reporters’ privilege battles, defamation cases, litigation seeking public access to judicial records and court proceedings, and asylum proceedings for journalists in danger.

As both a crisis management strategistand a seasoned appellate and media lawyer, Mr. Boutrous has extensive experience handling high-profile litigation, media relations and media legal issues. He routinely advises clients in planning how to respond, and in responding, to crises and other especially significant legal problems that attract the media spotlight. According to The National Law Journal, which in 2013 named him one of the “100 Most Influential Lawyers in America,” he “is known for his wise, strategic advice to clients in crisis and is a media law star.”

Numerous other profiles of Mr. Boutrous and his practice have appeared in the media. Prominent mentions include: “After Chevron Win, Dole Victory Caps Big Week for Gibson Dunn,” Am Law Litigation Daily(March 9, 2014); “Practice Group Performs In Spotlight and Under Pressure,” Los Angeles Daily Journal (March 2012); “Litigator of the Week,” Am Law Litigation Daily(June 2011); “Lawyer of the Week,” The Times of London(June 2011); “Appellate Lawyer of the Week,” National Law Journal(March 2011); “Litigation Department of the Year,” The American Lawyer (January 2012); “Litigation Department of the Year,” The American Lawyer (January 2010); “He’s a Hired Gun of the Highest Caliber,” The Los Angeles Times (June 24, 2007); “Special Appeal,” Los Angeles Business Journal(July 26, 2004); and “Jackson Case Stirs First Amendment Guru,” Daily Journal Extra (February 23, 2004).

Mr. Boutrous is a Fellow of the American Academy of Appellate Lawyers. Chambers USA ranks Mr. Boutrous as a leading lawyer in five different categories, describing him as “a combination of smart and pragmatic” with “a complete command of the facts and law,” a “true innovator,” a “go-to guy on cutting-edge cases,” a “formidable litigator,” and “a hugely accomplished appellate lawyer . . . familiar with appeals at all levels and venues.” Legal 500 has named Mr. Boutrous a “Leading Lawyer” for Supreme Court and Appellate litigation for the past three years in a row, calling him a “renowned advocate” and “the preeminent authority on punitive damages defenses in the U.S.” In 2012, Mr. Boutrous was named an “Attorney of the Year” by both the California Lawyer and the San Francisco Recorder, and the Los Angelesand San Francisco Daily Journalsnamed Mr. Boutrous one of the 100 best lawyers in California for the ninth year in a row. In naming him to its list of the 500 Leading Lawyers in America,Lawdragon calls him “One of the best media and appellate attorneys in the nation.” And the Los Angeles Business Journal describes him as “one of the nation’s most prominent appellate attorneys.”

Mr. Boutrous is a frequent commentator on legal issues. His articles include “California Kids Go to Court to Demand a Good Education,” Wall Street Journal (January 28, 2014); "A Radical Departure on Press Freedom," Wall Street Journal(May 23, 2013); “A Killer’s Notebook, a Reporter’s Rights,” New York Times (April 9, 2013), “President Correa’s Libel Suit and the Fraud Against Chevron,” Forbes (March 6, 2012); “Broadcast ‘Indecency’ on Trial,” Wall Street Journal (January 17, 2012); “The Four Myths Surrounding the Common Law Reporter’s Privilege,” Media Law Resources Center(January 2007); “First Amendment on Trial,” Wall Street Journal (August 19, 2006); “What’s Next for Punitive Damage Awards,” Wall Street Journal (May 29, 1996); “Rule 6(e) and the Public’s Right to Know,” Wall Street Journal (August 17, 1998); and “Celebrity Justice: A New Double Standard,” ABA Communications Lawyer(Fall 2004).

Mr. Boutrous is a member of the Board of Directors of theInternational Women’s Media Foundation and the Board of Directors of the California Supreme Court Historical Society. He also is a member of the Business Advisory Council of ProPublica, a non-profit newsroom that produces investigative journalism.

Mr. Boutrous received his law degree, summa cum laude, from the University of San Diego School of Law in 1987, where he was Valedictorian and Editor-in-Chief of the San Diego Law Review.

Representative Appellate and Constitutional Cases[PDF]

Representative Media Cases[PDF]

7/16

Ted? Boutrous embarrassed himself in Huffington Post this week in an apparent attempt to “up the crazy” as the trial to seize Chevron’s assets in Canada looms. It appears the “Big Lie” sickness of Donald Trump-ism continues to grow in America. The lawyer for Gibson Dunn, a firm known for its corporate attack dog efforts, has taken lying and slander to a new level. To Boutrous, giantfossil fuel corporations are the victims of legal attacks by environmental and human rights groups and the actual human rights violations or environmental destruction is either insignificant, or nonexistent in Ted’s view. To top it off, Boutrous – defender of Chevron – worst global polluter ever – is lecturing that “the ends don’t justify the means.” It’s not a coincidence that Chevron will find itself in court once again in a matter of weeks trying to justify the unjustifiable - dumping 18 billion gallons of toxic waste into the Ecuadorian Amazon over the course of decades.

Boutrous has now tagged himself as the kind of lawyer who blames the rape victim for dressing the “wrong way”. Or the kind of lawyer who blames the black man shot by police for being where he shouldn’t have been and “looking like a threat.” He has the audacity to blame the people Chevron deliberately poisoned by intentionally dumping billions of gallons of toxic waste in the Ecuadorian Amazon. Despite the fact that it is the largest oil-related disaster in history, which remains yet today in the form of almost 1,000 toxic waste pits, Boutrous claims there’s “a lack of evidence.”

To the families of the over 1,400 people who have already died of cancer in the Amazon – Boutrous denies your suffering. To the indigenous communities wiped out by Chevron’s operations (and Texaco) over decades, Boutrous never believed in you in the first place. To any environmental or human rights advocates who denounced the environmental “crime of the century” Boutrous says you are criminals.

For the record, here are but a few of the incontrovertible facts to which Texaco has already confessed and to which any non-corrupted lawyer would concede:

<ul style="box-sizing: inherit; margin: 0px 0px 20px; padding: 0px 0px 0px 2em;"><li style="box-sizing: inherit; margin: 0px 0px 5px; padding: 0px; font-size: 16px; line-height: 24px;">Texaco operated oil wells in the Ecuadorian Amazon and <a href="http://chevrontoxico.com/assets/docs/HBT-Agra-Vol-1-Draft-Oct-1993.pdf" rel="nofollow" target="_blank" data-ylk="subsec:paragraph;cpos:6;elm:context_link;itc:0" data-rapid-parsed="slk" data-rapid_p="4" data-v9y="1" style="box-sizing: inherit; color: rgb(0, 0, 0); text-decoration-line: none; box-shadow: rgb(13, 190, 152) 0px -2px 0px inset;">designed a system to dump all their toxic drilling waters into the local environment</a> where 30,000 Ecuadorians lived.</li><li style="box-sizing: inherit; margin: 0px 0px 5px; padding: 0px; font-size: 16px; line-height: 24px;">From 1964 to 1992, Texaco <a href="http://chevrontoxico.com/assets/docs/Fugro-McLelland-Field-Audit-1964-1990.pdf" rel="nofollow" target="_blank" data-ylk="subsec:paragraph;cpos:6;elm:context_link;itc:0" data-rapid-parsed="slk" data-rapid_p="5" data-v9y="1" style="box-sizing: inherit; color: rgb(0, 0, 0); text-decoration-line: none; box-shadow: rgb(13, 190, 152) 0px -2px 0px inset;">dumped over 18 billion gallons of toxic waste into open air, unlined waste pits designed to send runoff into local waterways</a>. This was done deliberately to save approximately $3 per barrel and increase profits.</li><li style="box-sizing: inherit; margin: 0px 0px 5px; padding: 0px; font-size: 16px; line-height: 24px;">Texaco estimated it would cost a little more than $4 million to line the pits and <a href="http://chevrontoxico.com/assets/docs/0717-texaco-memo-1972.pdf" rel="nofollow" target="_blank" data-ylk="subsec:paragraph;cpos:6;elm:context_link;itc:0" data-rapid-parsed="slk" data-rapid_p="6" data-v9y="1" style="box-sizing: inherit; color: rgb(0, 0, 0); text-decoration-line: none; box-shadow: rgb(13, 190, 152) 0px -2px 0px inset;">decided it was too expensive</a>.</li><li style="box-sizing: inherit; margin: 0px 0px 5px; padding: 0px; font-size: 16px; line-height: 24px;">Texaco told its employees not to report spills in the Amazon, <a href="http://chevrontoxico.com/assets/docs/0717-texaco-memo-1972.pdf" rel="nofollow" target="_blank" data-ylk="subsec:paragraph;cpos:6;elm:context_link;itc:0" data-rapid-parsed="slk" data-rapid_p="7" data-v9y="0" style="box-sizing: inherit; color: rgb(0, 0, 0); text-decoration-line: none; box-shadow: rgb(13, 190, 152) 0px -2px 0px inset;">ordered its employees to destroy existing reports documenting oil spills</a> and <a href="https://www.youtube.com/watch?v=qlJX5yxFCwc" rel="nofollow" target="_blank" data-ylk="subsec:paragraph;cpos:6;elm:context_link;itc:0" data-rapid-parsed="slk" data-rapid_p="8" data-v9y="0" style="box-sizing: inherit; color: rgb(0, 0, 0); text-decoration-line: none; box-shadow: rgb(13, 190, 152) 0px -2px 0px inset;">instructed local workers to dump the waste</a>.</li><li style="box-sizing: inherit; margin: 0px 0px 5px; padding: 0px; font-size: 16px; line-height: 24px;">Texaco never apologized to a single person from the affected communities for its deliberate acts of pollution.</li><li style="box-sizing: inherit; margin: 0px 0px 5px; padding: 0px; font-size: 16px; line-height: 24px;">Texaco left in 1992 and signed a $40 million deal with the government of Ecuador to “clean up” a small portion of the pits (that agreement specified that it did not protect Texaco from any civil action).</li></ul>

In fact, Chevron videos taken in 2005 and leaked by a whistleblower prove even the few pits Texaco claimed to have cleaned were still toxic years after the alleged “remediation”.

Texaco argued for a decade in US Federal Court in New York that Ecuador was the proper venue for the case and agreed that it would honor the decisions of the Ecuadorian court system. However, on the first day of the new trial in Ecuador, Texaco insisted that the case should not be heard in Ecuador either.

Chevron’s RICO trial specifically excluded any evidence of the contamination in Ecuador and in no way exonerated nor even suggested that Chevron/Texaco was not responsible for the contamination in Ecuador.

Chevron’s key witness in its RICO case, disgraced ex-judge Alberto Guerra, received over $2 million from Chevron for his testimony, admitted to lying about alleged bribes from lawyers for the Ecuadorians, and admitted that he embellished his story to get Chevron to pay him more.

Forensic evidence obtained by analysts of the presiding judge’s computer disprove any allegation of “ghost-writing” as the verdict was a document saved hundreds of times over a four month period and no external devices were attached (as Guerra claimed at one point).

In 2013, a US District Court found that Chevron had not shown that Amazon Watch had done anything wrong in relation to the Chevron litigation or that Amazon Watch had engaged in fraudulent conduct or furthered a conspiracy against Chevron. In an 11-page order, Judge Cousins quashed Chevron’s attempts to open up Amazon Watch’s files, and threatened sanctions against Gibson Dunn and Chevron if they reissued subpoenas unless they were “significantly narrower in scope to seek only highly relevant information and more carefully tailored to avoid infringing upon the organization’s First Amendment rights.”

None of this can be contested by Boutrous, no matter how much he may wish he could. And every single one of these facts are ones Chevron and Gibson Dunn hopes desperately that the public (and justices in Canada) will ignore or forget. Yet despite knowing them, and all those ethical guidelines Ted theoretically understands, he is willing to write that there’s a “lack of evidence” against his client Chevron and the environmental NGOs asserting otherwise are criminals for doing so.

Like Chevron executives, who have spent billions to try to escape justice in Ecuador, Boutrous is impervious to shame. His firm has harassed people, threatened judges, bribed witnesses, falsified evidence (not the first, or second time),, and even admitted to opposing counsel in the U.S. that their motions were improper, yet filed them anyway. And it’s within this context that Boutrous writes: “the ends don’t justify the means.”?!?

It’s unclear which is a greater danger to our society, the ability for oil companies to intentionally and catastrophically pollute, or the willingness of large law firms like Gibson Dunn to cheat, lie and generally abuse the legal system in order to deny the existence of the continuing suffering of tens of thousands of people. Add to that the vilification and intimidation of anyone who dares to speak against them. Sounds like Donald Trump’s ideal America to me.

Ted Boutrous is not an idiot, but he has demonstrated absolutely no moral compass whatsoever. In the fever to defend his client – a company that admitted to the deliberate pollution in the first place – he has gone completely off the deep end. And he has embarrassed himself in the process. That’s probably why he (or his staff) have obsessively deleted every comment to his post on Huffington – a delicious irony from a “First Amendment lawyer.”

The notion that anyone would accept his premise when Chevron has lost every legal contest apart from Kaplan’s (which is still under appeal, and was just handed another major blow by a recent SCOTUS decision about the use of RICO in such circumstances) is frankly preposterous.

No, we can’t afford to sue Ted and Gibson Dunn for their acts of libel and intimidation, and they know it. The system of justice here completely favors the Chevrons of our society. That’s why they are infuriated that the people of Ecuador actually persevered. Despite all Chevron and Gibson Dunn did to prevent it, they couldn’t stop the $9.5 billion judgement against them. They won’t be able to stop the action to enforce that verdict in Canada to seize Chevron’s assets there, but Ted Boutrous and his buddies intend to get much richer trying.

Ted’s post is a sign that the Chevron attack dogs are foaming at the mouth the closer we get to a trial in Canada (it begins in September). Last year, when the Supreme Court of Canada sided unanimously with the Ecuadorians to allow them to sue to enforce their verdict, it sent shock waves through Chevron’s board room. The phone calls to Gibson Dunn have probably been non-stop ever since.

Ted Boutrous is using Huffington Post to spread more lies that Chevron hopes will sow more doubt about this case. “Perhaps there is no evidence in Ecuador after all.” That’s what they hope journalists or justices in Canada will think. Perhaps global warming is a hoax, too. “I read on the internet,” says Donald Trump. That is the era we live in.

Anyone can appreciate the irony when Ted Boutrous calls Trump out for his racist comments about a judge while he dismisses Ecuador’s entire judicial system, local communities and indigenous peoples as either too corrupt or too “unsophisticated” to make a just ruling based on the overwhelming evidence in the Amazon. Trump doesn’t appear embarrassed, but Ted certainly has been.

no lnx

gibsondunn519

Gibson, Dunn and Crutcher

mofo's

see boutrous, donziger

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.)

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.

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

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

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

The Racich report also corroborates the sworn testimony of Donziger, 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.

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 he claims "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

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

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 & Crutcher spent a long moment in the spotlight, when partner Theodore Olson took 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.

Contents

[hide]

1 Awards and recognition

2 Notable cases

3 Notable transactions

4 Notable attorneys

5 Offices

6 References

7 External links

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

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…

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..."

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

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,