[ Also up on HuffPost ]
With news that Chevron is aggressively pursuing a $32 million claim against human rights attorney and activist Steven Donziger, it appears we are entering perhaps the ugliest phase of the ugliest corporate countersuit in recent memory—a “vengeance phase” that the company has long been preparing for. The claim is being made in the Chevron RICO case, the oil company’s abusive “SLAPP” lawsuit against Donziger and the victims of its own massive pollution of the Ecuadorian Amazon.
I am also part of the team battling Chevron and have written about the case before, but as quick background: in 2011, Chevron lost an exhaustive 8-year environmental litigation in Ecuador arising on its horrendous operations practices in the country in decades past, and was hit with a $9 billion clean-up liability judgment. In response, it threatened the Ecuadorian indigenous people who had sued it with a “lifetime of collateral litigation” and made good on that promise by bringing a civil RICO or “racketeering” suit against them, falsely claiming the whole environmental case was a “sham.” (You can see pictures and read descriptions of this so-called “sham” here, here, here, here, here…)
But the RICO case wasn’t fundamentally against the Ecuadorian contamination victims, who, the company knew, were and are too sympathetic to carry the full weight of the attacks that Chevron needs to support its ultimate goal of simply not paying an environmental judgment that has now been unanimously affirmed by Ecuador’s Supreme Court. Instead Chevron focused its firepower on Donziger.
Why? Donziger has worked in the trenches of global social justice movements and domestic criminal justice reform his entire career, and he is on the record with some “pointed” views about the intersection of law and power politics. More importantly for Chevron strategists, Donziger was an American and had a personal style that they realized they could use to paint the entire environmental case as being led—or “masterminded, in Chevron’s attack-speak—by the “plaintiffs’ lawyer” bogeyman that decades of propaganda by the U.S. Chamber of Commerce and the Koch bothers’ network have now trained the U.S. public to resent on sight.
An internal Chevron email from 2009 neatly sums up what the author, a leading Chevron strategist, calls the company’s “long-term strategy” for the Ecuador case: “demonize Donziger.”
While Chevron’s PR team set about demonizing Donziger relentlessly in media and political circles, its army of lawyers (thousands of them, literally) made Donziger the central target of the civil RICO case and ultimately obtained judgment in their favor. The judgment is fundamentally based on distorted, false, and even fabricated evidence, but even apart from any specific factual disputes it is profoundly disturbing, purporting to find Donziger guilty (under a lax civil, not criminal, standard of proof) of “extortion” against Chevron because he steadfastly litigated the environmental case notwithstanding Chevron’s (self-serving) insistence that the case was a “sham.” (Again, see the links above of the so-called sham.)
Chevron could only pull this off by having the case decided not by an impartial jury but by Judge Lewis A. Kaplan, who openly harbored intense animosity toward Donziger and his Ecuadorian clients. (I highlighted some of the judge’s outrageous quotes from the bench in this earlier blog.) Chevron orchestrated this result by expressly forfeiting all its claims for money damages two weeks prior to trial, because under the Seventh Amendment to the U.S. Constitution, any damages claim over a mere twenty dollars entitles the defendant to a jury. Over Donziger’s protest, Kaplan denied him a jury, decided the case himself in Chevron’s favor, and Chevron is now desperately trying to peddle Kaplan’s flawed “findings” to other courts around the world where the Ecuadorians are seeking to enforce their own environmental judgment against Chevron assets.
All this goes in the ugly category: a company unapologetically delivering on its promise to inflict a lifetime of collateral litigation at the expense of the victims of its contamination. But as noted, it now gets uglier. Chevron’s latest deceit is to seek to recover $32 million from Donziger personally by claiming the money not as damages (which it forfeited) but as attorneys fees. If a $20.00 damages claim is enough to trigger constitutional protection in the form of a jury of impartial fact finders, shouldn’t a $32,000,000 monetary claim for fees trigger something similar? Actually, yes: the protection is inherent in the rule, established in a 1984 federal appellate case (Aetna v. Liebowitz), that you can’t recover attorney fees under RICO unless you prevail on a money damages claim, i.e.unless you prevail to the satisfaction of a jury (and the constitutional right thereto).
Chevron’s response? Aetna, which has gone unchallenged since 1984, was “wrongly decided.” While it would be nice to think that the law will be applied fairly, holding Chevron to the consequences of its bargain when it strategically dropped its damages claims, the reality is that the judge deciding the fee motion will be Kaplan, the same judge who ran the RICO trial and engineered the outcome. History shows that when Chevron says jump, Judge Kaplan at most asks “how high?” “Wrongly decided” = “jump.”
It also gets uglier because now it gets deeply personal. Chevron’s attacks on Donziger have long been personal: in addition to smearing him as a “greedy plaintiffs’ lawyer” and a “criminal,” Chevron has admitted to hiring a raft of private investigators, from the white-shoe Kroll Inc. to shady one-man operations run by ex-CIA operatives, to scour Donziger’s past and follow him around New York; the company tried to put pressure on him through his wife’s employer; and most notoriously tried to embarrass him by releasing misleadingly-edited snippets of “outtakes” from a film project Donziger participated in. But while the attacks have always targeted Donziger the individual, they have also fundamentally focused on Donziger as the public face of the Ecuador case. The latest effort is different: with an attorney-fees money judgment in hand, Chevron can interfere with Donziger’s personal life not just to try to take Donziger out of commission, but to send a chilling message to anti-corporate activists and lawyers generally. This isn’t just about winning or losing the battle of ideas or competing visions of justice.
Many of us, who may have been monitoring the case for years or may be hearing about it for the first time, might reflexively want to turn away. The notion of someone being attacked with such ferocity to the point of “losing everything” is an anxiety trigger for most people. The specter of it happening to us, somehow, lurks in the shadow of our psychic campfire. The inspiring image of the individual human rights lawyer fighting a corporate Goliath, and even getting steamrolled in the process, suddenly loses its quixotic luster when the system starts going after his personal savings, his house, his car. The ruthlessness ought to inspire more outrage, more solidarity, more resistance—and yet somehow, it can do the opposite. Poor guy, we think. We don’t want to look. Or our attention takes on the passive character of rubbernecking a highway crash.
Now to be clear, Donziger has plenty of fight left in him. One of Donziger’s key attributes is not just that he is insanely resilient (“Herculean tenacity,” in the words of pro-Chevron journalist Paul Barrett, who has written dozens of articles otherwise demonizing Donziger), but that he draws energy from and even seems to enjoy (and finds humor in) challenges as they reach levels of intensity that cause most people to recoil in fear. Chevron’s entire RICO gambit may have been “successful” in partially diverting Donziger’s attention for a period of years, but it hasn’t slowed or chilled Donziger’s advocacy in the slightest.
Donziger remains an inspiration to most people who take the time to learn about the Ecuador case. He is regularly invited to law schools to lecture about corporate accountability and the unique multi-dimensional advocacy strategies he and others on the Ecuador case employed. I know personally that his strength through this whole process has been buoyed over the years by the dozens upon dozens of meetings he has had with leading figures in human rights, environmental law, media, the arts, and politics, who affectionately describe their amazement at his resilience and commitment and urge him to fight on. (Not to mention the incredible affection he receives from his clients, which I witnessed again on a recent trip to celebrate the life of local activist Rosa Moreno, who as a nurse documented the health consequences of Chevron’s contamination for decades before succumbing herself to cancer earlier this year.)
I also know many who support the Ecuador case yet who are less reverent of Donziger, often expressing their frustration at how he “allowed himself” to become such a distraction to the true cause of the suffering of the Ecuadorian contamination victims. But even this second crowd usually agrees with something like the notion that it is “important to have people like Steven” out there, fighting, maintaining an unapologetically radical vision of corporate accountability and thereby creating space for others to position their own visions as more nuanced and accommodating. Indeed, for people who have met Steven, the “greedy plaintiffs’ lawyer” label Chevron promotes just doesn’t stick. What he’s greedy about is changing the world, shaking up the existing neoliberal capitalist order, and seeing a clean-up and other relief happen for the communities he has worked with more than half his life.
Ultimately, the one thing that all of Steven’s boosters and his friendly and unfriendly detractors agree on is that that there is something about him and his approach to human rights advocacy that raises the stakes. Chevron would not have spent an estimated $1-2 billion orchestrating a demonization campaign for just some average critic. Even Judge Kaplan, as he tried to replace the real Steven Donziger with a straw man villain he could attack with impunity, left intact the premise that Donziger’s challenge to the system was a serious one. In one of the judge’s famous vitriolic attacks from the bench:
The imagination of American lawyers is just without parallel in the world. It is our one absolutely overwhelming comparative advantage against the rest of the world, apart from medicine. You know, we used to do a lot of other things. Now we cure people and we kill them with interrogatories. It’s a sad pass. But that’s where we are. And Mr. Donziger is trying to become the next big thing in fixing the balance of payments deficit. I got it from the beginning.
In other words, whether met with hope, wariness, or outright fear and resistance, the underlying presumption is the same: this Donziger might actually shake things up.
For reasons that I will try to explore in more detail in a forthcoming blog, Donziger has long been at the bleeding edge of the sort of multi-dimensional advocacy strategies that are increasingly practiced by human rights and environmental advocates around the world. Chevron’s RICO case is as much an effort to demonize all these strategies as criminal “extortion” as it is to demonize Donziger personally. Chevron’s RICO countersuit is now being recognized as “the new corporate playbook” for responding to this kind of creative and effective advocacy, and we’re starting to see it pop up all over the place, including a RICO lawsuit against Greenpeace by the timber giant Resolute that has been sitting in court for well over a year now, draining the environmental organization’s resources and attention, and another one filed just days ago by the companies behind the Dakota Access Pipeline (DAPL) claiming “no less than $300 million” in damages from Greenpeace’s advocacy.
To the extent the Chevron leveraged flaws in the Ecuadorian proceeding in its attacks on Donziger (or Resolute did the same in its attack on Greenpeace), similar minor (and long-since legally cured) flaws can be found in any legal case or advocacy effort. Donziger did not “allow himself” to be the main target of Chevron’s “lifetime of collateral litigation” strategy—he was carefully picked by the company’s strategists. Indeed, we should not fool ourselves that Chevron’s entire counterattack was meticulously designed for purposes of retaliation and sending a message. In 2009, a good two years before the RICO suit was filed, before the Ecuador court had even issued judgment against Chevron, a Chevron operative was secretly recorded by a friend describing the company’s post-trial plans:
These guys, once the trial is over, they’ll go after everyone who was saying things about it…. The lawsuits will start against everyone who said things, you get it?
Chevron knows that Donziger doesn’t have anything close to even a fraction of the $32 million it is seeking. This is not about payback in the monetary sense; it’s about vengeance. It’s inherently punitive—but under a civil standard of proof, with a private and obscenely wealthy oil company acting as the prosecutor, and a defendant on trial for his beliefs and his unrelenting advocacy for the powerless.
We in the human rights and corporate accountability communities better “get it” quickly. That means not turning away, not rubber-necking, but resisting, publicly and loudly. Chevron’s tactics have muddied and roiled the waters surrounding the Ecuador case for some time now, and this attack on Donziger is scary and uncomfortable. I don’t want to get on a high horse as regards people in a community I am calling out to for solidarity. But I respectfully suggest to my colleagues in the human rights and environmental arena that apart from the plain moral repugnance of Chevron going after Donziger for $32 million (especially after it forfeited damages to insulate itself from a jury), this kind of ugliness is headed our way, and fast. Fighting back starts with standing up and speaking out.