In SLAPP Attack, Chevron Trying to Intimidate Citizens Who Challenged Company Over Massive Pollution in Amazon
Chevron and Gibson Dunn Law Firm Trying to Harass Critics and Distract from “Slow Genocide” In Ecuador’s Amazon
NEW YORK, NY - Unable to extinguish a $12b liability won by Ecuadorian rainforest communities, Chevron and its law firm Gibson Dunn have issued a new subpoena in the U.S. that seeks emails from 57 supporters of the Ecuadorians in what lawyers call Big Oil’s “latest and most desperate” SLAPP-style attack on citizens who challenge corporate power.
Chevron issued the subpoena as part of its campaign to evade paying the judgment to Ecuadorian Indigenous peoples and farmer communities after the company was found by courts to have deliberately dumped 16 billon gallons of cancer-causing oil waste into rainforest waterways and abandoned 1,000 toxic waste pits. The trial court imposed a $19 billion liability, which was later reduced to $9.5 billion ($12b with interest) by Ecuador’s highest court.
Chevron had insisted the trial take place in Ecuador and had accepted jurisdiction there. The amount of the judgment is a fraction of the $50 billion in compensation and fines BP has paid for the 2010 Deepwater Horizon spill in the Gulf of Mexico, even though that spill was far more limited in scope than Chevron’s Ecuador disaster.
“Chevron for decades has been killing off indigenous groups and farmer communities in the Amazon by failing to clean up its pollution, and now it issues subpoenas in the U.S. to try to harass those trying to hold it accountable,” said Patricio Salazar, an Ecuadorian lawyer who represents the rainforest communities. (Here is a summary of the evidence against Chevron.)
Among those Chevron has targeted with the subpoena are Katie Sullivan, who provides administrative support to high-wealth families in Boston and who has played a critical role in helping the Ecuadorians finance their litigation expenses; Rex Weyler, the legendary co-founder of Greenpeace who criticized Chevron for committing “ecological crimes” in Ecuador after visiting the affected region; Karen Hinton, the longtime U.S. spokesperson for the affected communities; and even members of the family of Steven Donziger, the U.S.-based lawyer for the Ecuadorians and the primary target of a Chevron demonization campaign.
The purpose of the Chevron subpoena is to harass supporters of the Ecuadorians so they back off from helping the victims of the company's toxic dumping, said Donziger.
“Chevron’s strategy is designed to suppress Free Speech and to neutralize a valid legal judgment that only Chevron contests,” he said. “Judges need to educate themselves about this phenomenon. Chevron and its U.S. law firm Gibson Dunn are taking the national lead on writing a playbook for the delivery of litigation harassment to citizens who challenge corporate misconduct.”
Chevron’s subpoena comes as a newly formed coalition of 20 prominent civil liberties and environmental groups – including Greenpeace, Electronic Frontier Foundation, and Human Rights Watch – have called for rallies in three cities on Sept. 5 to protect the right to protest and to call out corporate SLAPP attacks on human rights defenders like Donziger and others who prosecuted the case in Ecuador. (See here for website.) Greenpeace was targeted recently in the U.S. under federal racketeering laws by a Canadian logging company. That lawsuit, filed by Donald Trump’s former law firm Kasowitz Benson, largely copied a Chevron civil “racketeering” suit against Donziger and his Ecuadorian clients that used paid-for witness testimony and fraudulent evidence. (See here.)
SLAPP (Strategic Lawsuit Against Public Participation) suits are brought by corporations or governments to intimidate critics rather than for meritorious reasons, according to several academics. SLAPP lawsuits are usually dressed up as “racketeering” or “defamation” claims as a way to harm the reputations of critics while forcing them to expend enormous resources in their personal defense, said Donziger. He added Chevron’s goal with SLAPP is to force lawyers to give up so as to leave the company’s victims in Ecuador defenseless.
The Chevron strategy has not worked given that the Ecuadorians are represented by some of the top litigators in Canada as they attempt to seize company assets. The legal team there includes commercial litigator Alan Lenczner and Indigenous rights specialist Peter Grant. That said, Donziger acknowledged the constant Chevron attacks have taken a “personal toll” on himself and his family.
Salazar, who calls the cancer deaths in Chevron’s operational area of Ecuador a “slow genocide”, said the company has a long history of using abusive litigation tactics to harass the lawyers who sued it. Chevron has spent an estimated $2 billion on 60 law firms and 2,000 lawyers to grind down Donziger and his clients, who have persisted with the case for two decades and who recently won several legal battles in Canada despite having a fraction of the resources of the oil major.
In 2011, in what is widely regarded as the Mother of All SLAPP Suits, Chevron sued Donziger – a sole practitioner based in New York -- for $60 billion, at the time thought to be the largest potential personal liability in U.S. history. The company also sued 47 impoverished Ecuadorian villagers who signed the environmental lawsuit on behalf of tens of thousands of affected people in Ecuador. All are seeking a clean-up of what is widely regarded as the world’s worst oil-related catastrophe.
“Chevron is getting desperate as the company’s environmental crimes and fraudulent cover-up, including witness bribery and falsification of evidence, fail to stop the Ecuadorian communities,” said Donziger, who cited Chevron’s law firm Gibson Dunn for fabricating evidence on behalf of not only Chevron but other scandal-plagued corporate clients.
Chevron has ample reason to be concerned about the Ecuador judgment.
The liability is now being enforced against Chevron’s assets in Canada with a unanimous Supreme Court victory and two other appellate court victories in favor of the affected communities. Chevron has threatened the rainforest groups with a “lifetime of litigation” if they persist, a fact that has not sat well with Canadian judges. Company shareholders also have put management under enormous pressure, with 36 institutional investors insisting CEO Michael Wirth try to settle the case.
Chevron, which has a history of using the Gibson Dunn firm to engage in unethical tactics, is also the subject of a criminal referral letter (see here for summary) to the U.S. Department of Justice based on witness bribery in the case it launched against Donziger. The referral letter outlines how the company used fraudulent evidence to obtain a non-monetary civil judgment from a pro-business U.S. federal judge, Lewis A. Kaplan, who held undisclosed investments in Chevron while he presided over the trial. Kaplan refused to hear any evidence of Chevron’s environmental contamination or fraud in Ecuador. (For background on Kaplan’s ethical lapses, see this article by Weyler of Greenpeace.)
In 2013, after Chevron lost an appeal of the environmental judgment to Ecuador’s highest court, the company used Gibson Dunn to try to obtain all email traffic from more than 100 activists, bloggers, and journalists who either supported the Ecuadorians or had inquired about their lawsuit. A federal judge in California blocked much of the effort on Constitutional grounds, saying it violated Free Speech rights of the advocacy groups.
Kaplan is now being used by Chevron to authorize the issuance of the subpoena seeking documents from the 57 supporters, said Salazar.
“Both Chevron and Judge Kaplan should know this latest maneuver to try to rescue a U.S. oil polluter from a foreign liability won’t work,” said Salazar. “The support the Ecuadorian communities are receiving is overwhelming. We are again exploring opportunities in other jurisdictions to force Chevron to comply with the law.”
The Chevron subpoena targets the email server of Sullivan’s financial business and seeks all of her communications with the 57 individuals. It is unclear whether the company that owns the server will comply with the subpoena or fight it in court.
As Chevron’s attacks in the U.S. have intensified, Donziger has received wide support. Those backing him include musician and Pink Floyd original Roger Waters; Producer and Director Trudie Styler; Actor Alec Baldwin; and prominent lawyers such as Rick Friedman (best-selling author and former President of the Inner Circle of Advocates), First Amendment specialist Marty Garbus, and Professor Charles Nesson of Harvard Law. Also supporting Donziger are former National Chief of Canada Phil Fontaine, Rafael Pandam (President of the Amazon Indigenous Parliament), human rights Professor Kathleen Mahoney, Weyler, Simon Taylor (the co-founder of Global Witness), and Paul Paz y Miño, Associate Director of Amazon Watch. (Here are testimonials for Donziger.)