The papers, filed by Donziger’s lead appellate attorney Deepak Gupta, argue that Judge Kaplan’s decision is highly likely to be thrown out on appeal and will cause “irreparable harm” if not stayed pending the appeals process, which can sometimes take two years or more.
The papers, which can be read here, argue that Judge Kaplan’s RICO decision “seeks to preemptively undermine the judicial decree of a foreign sovereign nation and, in so doing, to let Chevron Corporation off the hook for decades of deliberate pollution in the Amazon rainforest.” The brief adds: “Along the way, it sidesteps jurisdictional hurdles, runs afoul of fundamental norms of international comity, and contravenes multiple decisions of the Second Circuit arising out of this same long-running controversy.”
“It is unlikely to survive appeal. And there is no question,” the papers argue, “that it will cause irreparable harm to the defendants and others if it is allowed to go into effect before the Second Circuit has had an opportunity to review it.”
The filing for a stay is the first step to kicking off what Gupta hopes will be a searching appellate review process. “It is now time for the appellate court to weigh in on these critical legal issues, which affect the well-being of thousands of rainforest villagers suffering from the effects of Chevron’s pollution in the Amazon,” said Gupta.
“The more our legal team analyzes this 500-page decision, it becomes increasingly clear that it will not stand up on appeal,” said Karen Hinton, a spokesperson for Donziger.
Donziger has argued that Judge Kaplan lacked jurisdiction over him once Chevron dropped all money damages claims on the eve of trial, given that an injunction (as opposed to money) would not remedy an actual injury caused to Chevron; that Judge Kaplan’s decision violates previous orders from a federal appellate court barring him from ruling on the validity of the Ecuadorian judgment; that the decision violates international comity, in that it deems Ecuador’s entire judicial system unworthy of international respect; and that Donziger himself faces “irreparable harm” by being forced to turn over to Chevron shares in a company that was set up to administer recovery funds, thereby depriving him of his ability to earn a living.
Gupta suggested to Judge Kaplan that if he plans to deny the request for a stay, that he do so “promptly” so that a three-judge panel from the Second Circuit Court of Appeals (which oversees Kaplan’s court) can take up the issue. The papers also ask Judge Kaplan to issue a “temporary administrative stay of the judgment” pending resolution by the Court of Appeals.
Judge Kaplan already has been reversed once in the case when he tried to issue an unprecedented injunction blocking the Ecuadorians from enforcing their judgment anywhere in the world. The latest motion argues that Judge Kaplan’s more recent injunction in practice does the same thing, even though it uses different language.
Donziger repeatedly has said he did not receive a fair trial in Judge Kaplan’s courtroom; his former counsel, the renowned trial lawyer John Keker, accused Judge Kaplan of letting the case “degenerate into a Dickensian farce”. For background on Judge Kaplan’s bias as explained in various legal petitions, see here and here.
Today’s stay motion represents the first appearance in the case from John Campbell and Justin Marceau, two law professors at the University of Denver who are teaching a special course built around Donziger’s appeal. Nine students in the class are carrying out research assignments for the legal team.
Donziger said the filing of the papers is “an important first step” in having Judge Kaplan’s decision reviewed by new judges.
“It is our belief that Judge Kaplan’s decision is wrong on the law, wrong on the facts, and resulted from a skewed legal proceeding that violated the due process rights of the defendants,” said Donziger.