Thursday, October 16, 2014

Law of the Jungle by Paul M. Barrett

Law of the Jungle: The $19 Billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who'd Stop at Nothing to Win It is difficult to comprehend how the relatively straightforward attempt by Ecuadorian plaintiffs to extract damages from oil companies for pollution caused in the course of their work became the perfect definition of a clusterf**k. Everybody got screwed.

Barrett goes through the history of the decades-long lawsuit on behalf of Ecuadorian peasants and tribespeople against Texaco, now part of Chevron, and highlights the bad judgment, culpable wrongdoing, bribery, fraud, and coercion committed by and on behalf of the plaintiffs and the defense.

Petroecuador, the national oil company of Ecuador, should have been named as co-defendant in the case to clean up pollution from seeping pits of oil byproduct left by the oil extractors because they partly owned the oil wells and pits and derived revenue from it but also because they already received some compensation from Texaco toward alleviating the environmental damage. They were not named as co-defendants, however, and did nothing to ameliorate the damage or the plaintiffs’ suffering. The plaintiffs were represented in Ecuadorian court by American lawyer Steven R. Donziger, who began as part of a legal team in 1993 and emerged as lead counsel in 2003.

In February of 2011 the Ecuadorian court ruled against Chevron, ordering them to pay damages for clean-up of USD$18.1 billion. The award was later reduced to USD9.5 billion. Chevron filed countersuit in New York District Court, alleging misconduct by the lead lawyer for the plaintiffs, Donziger, and after several iterations of decisions, managed to obtain an injunction against collection of the damages anywhere in the United States. It is not over yet. Chevron may be named in a lawsuit in another South American country which may seek to recover that big payoff from Chevron.

What struck me about this fiasco is that everyone played to their worst selves. In wanting so badly to avoid being victimized, each group managed to create an environment of social toxicity to go with the demonstrated environmental toxicity. The Ecuadorian state did nothing to demand and enforce clean-up from its own state enterprise which was shoveling profits to them, and once the peasants were offered incentives to claim damages, some appeared to develop illnesses attributed to the illegal oil runoff. Everyone was implicated, everyone was venal, everyone failed.

The plaintiffs' lawyer, Donziger, spent so much time and money on the case he had to bring in a series of investors to keep the case going. Donziger promised percentages of the take to investors once the case was settled (read: won)—so much in fact that had investors all been paid back for their capital infusions, nothing would be left for clean-up!

Donziger, just out of Harvard Law School when he entered the case for the plaintiffs, stated early in the proceedings that he wanted this case to be a “business” model for future attempts to secure damages from large corporations operating without sufficient environmental controls overseas. Even a blatant cynic might blanch at the thought of such stupendous arrogance and this surely went some way to alienating and hardening the positions of Chevron executives, who could have easily fixed the environmental damages with some arm-twisting of Petroecuador, because they came to the case knowing Texaco’s legacy in the country.

But one might say the Americans were the dupes in this fight. They were stupid and arrogant and stubborn, but it was the corruption in Ecuador that really brought both sides to their knees and exposed their idiocy. In a state where the legal system is so little developed that politicians, judges, and lawyers are free to line their pockets at the expense of the people they are sworn to protect, all attempt to recoup losses by legal means are chimerical.

The author, Paul Barrett, is also a Harvard Law grad, and now works as an investigating journalist for Bloomberg BusinessWeek. He has written several other nonfiction books, one of which is called Glock. He manages to bring the mass of information produced by this case into manageable form so that we can understand the progress of the case quite well. He does not appear to take sides, though it is clear he found Donziger’s behavior an affront to his profession.

I came away thinking that this should be read by every law student dreaming of working in international or corporate law for the lessons and warnings it contains. A corporation cannot carry on in this manner and escape unscathed. Needless to say, one would want no law student to imagine they could emulate the hubris of Donziger; failure, in this world or the next, must surely be their fate. This history is positively Dante-esque in the venality of the actors.

I listened to the audio presentation of this book, published by Random House Audio and read by Joe Ochman. Ochman does a good job, threading the legal morass and making it comprehensible. The writing, and therefore the reading, was not completely dispassionate: there was some level of editorial disdain for the parties (who could help it?). There were times I wished I had the hard copy while I was listening, so if you have the opportunity to buy or borrow one or the other, you might like to get both. The hard copy is published by Crown.


You can buy this book here: Shop Indie Bookstores

6 comments:

  1. This is not an independent researched book explaining the Chevron in Ecuador case, it's a pro-Chevron one-sided dump of their legal filings written to give the impression that Barrett actually researched the case. It shamelessly masquerades as “impartial” but the facts do not bear that out.

    Peter Maass, author of Crude World: The Violent Twilight of Oil in his review of Barrett's book in Outside Magazine wrote, "There are two side to the story of the biggest environmental lawsuit ever, but a new book tells only one of them."

    Barrett, did not interview the Ecuadorian legal team, did not read the trial record in Ecuador and spent only a few days there. Many of us who have supported the communities for decades are shocked at the lack of real reporting here. He made it appear as if he interviewed Donziger, even tho he only took from Chevron's legal filings in their bogus RICO action.

    There is no fraud by Donziger nor the Ecuadorians. The only "evidence" of any ghost written judgment was the testimony of a corrupt ex-judge who was paid hundreds of thousands of dollars to testify. Chevron either bought off or pressured witnesses, fabricated evidence and spent hundreds of millions all to avoid paying to clean up. Barrett ignores all of these issues in his book. Leaving such facts out is either grossly incompetent or deliberately misleading.

    The Sierra Club, Amnesty International, Greenpeace and over 40 other human rights and environmental NGOs have condemned Chevron for its dirty underhanded legal thuggery in this case and for violating the First Amendment. Why is that not a part of Barrett's "story"?

    Barrett avoids the truly scandalous and criminal examples of Chevron's tactics to hide contamination during the Ecuador trial, like swapping toxic soil samples with clean ones, and avoiding sampling at depths at which Chevron knew contamination existed, at locations Chevron knew were still contaminated, and were downgradient from known contamination. You'd think that a book purportedly covering the largest environmental litigation in history would merit a real review of the evidence, much of which was provided by even the skewed soil and water samples taken by the company.

    Three layers of Ecuadorian courts – eight appellate judges – reviewed and upheld the $9 billion verdict, and threw out Chevron's claims of fraud. But for Barrett, apparently U.S. courts are the only legitimate court system in the world. Barrett lets Judge Kaplan off the hook for his colonial overreach in judging a country's legal system that he knows nothing about. Kaplan can't read the native language, nor did he read the trial record.

    Worst of all, Barrett is promoting his book under the false headline that the case against Chevron in Ecuador “failed”. This is patently false as enforcement actions are underway in Canada, Argentina and Brazil (which Barrett knows). Barrett unwillingness to correct this misinformation time and again is perhaps the most obvious indication of where he stands on the “truth”.

    Learn about Barrett’s ongoing bias here: http://amazonwatch.org/news/2014/0930-business-journalists-rush-to-rescue-chevron-from-its-ecuador-disaster

    Here is an excellent point-by-point critique of this book by the Ecuadorian legal team: http://chevrontoxico.com/assets/docs/2014-barrett-critique.pdf

    Barrett’s book is so bad that he and his publisher are liable to be sued for defamation letter: http://chevrontoxico.com/assets/docs/2014-09-09-letter-to-barret.pdf

    A decent and fair look at the case appeared in Rolling Stone (which also refers to Barrett’s book as pro-Chevron): http://www.rollingstone.com/politics/news/sludge-match-chevron-legal-battle-ecuador-steven-donziger-20140828

    The documents refuting Chevron’s bogus RICO claims, likely to prevail with the federal appeals Court are here:

    http://stevendonziger.com/wp-content/uploads/2014/07/2014-07-02-Donziger-brief.pdf

    http://stevendonziger.com/wp-content/uploads/2014/07/2014-07-01-Ecuadorians-brief.pdf

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    1. Thanks for the additional materials, Paul. I do not think Chevron comes across vindicated in this book. It must be as embarrassing for them as it will be costly. I look forward to getting to those document links you sent.

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  2. Thanks Trish. Of course, it's important that Barrett points out the actual pollution Chevron caused - it's impossible to ignore that. The problem is that Barrett then promotes Chevron's narrative and avoids the truly scandalous and criminal examples of Chevron's tactics to hide contamination during the Ecuador trial, like swapping toxic soil samples with clean ones, and avoiding sampling at depths at which Chevron knew contamination existed, at locations Chevron knew were still contaminated, and were downgradient from known contamination.

    Other corrupt and illegal acts that were Chevron's standard practice during the Ecuador trial are glanced over or omitted by Barrett. This includes the company's successful cancellation of a judicial inspection of a major toxic site through collaboration with the Ecuadorian military to produce a phony security threat. Perhaps most audaciously, Barrett fails to adequately mention a sting operation where Chevron employees posed as remediation contractors in an attempt to entrap the presiding judge.

    Barrett also overlooks all the arguments that render Chevron's fraud claims ridiculous. If the trial was marred by fraud, why hasn't Chevron filed an action to nullify the judgment under the fraud protection statute in Ecuadorian courts? Three layers of Ecuadorian courts – eight appellate judges – reviewed and upheld the $9 billion verdict, and threw out Chevron's claims of fraud. But for Barrett, apparently U.S. courts are the only legitimate court system in the world. Barrett lets Judge Kaplan off the hook for his colonial overreach in judging a country's legal system that he knows nothing about. Kaplan can't read the native language, nor did he read the trial record. On top of that, Barrett seems unconcerned that Chevron's star witness received some $300,000 in payments for his testimony, plus a new life for him and his family in the United States.

    This clear and overwhelming bias renders his book as nothing more than a one-sided cursory perspective masquerading as independent reporting.

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    1. Paul, I am not a lawyer and I must have been blind, deaf and dumb while all this was going on. I had no idea. I would make a good juror because none of this entered my consciousness before so I am a clean slate. But I am a humanist who does not knuckle under easily. Looking through the material and arguments you offered above, I must protest that Barrett did mention Chevron's attempts to influence, swapping soil samples, and god-awful poor judgment on any number of decisions. He does make the case that Donziger was young and enthusiastic when he began and had moral right on his side. However, one can only see the imperfectability of man in this charade of "justice".

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  3. Trish, I am glad that you are a "clean slate." The overwhelming about of: evidence against Chevron and level of manipulation, dirty tricks, threats, bribes, "sting operations" and outright attempts to overwhelm the Ecuadorian court not even close to adequately represented in Barrett's book. Yet the quite flimsy "evidence" of Chevron's RICO filing - which hinges on the triple here say statement of a known liar and corrupt ex-judge were enough for him to base his entire book and theory of Donziger's "fall from grace". This was the exact stated objective of Chevron and their PR hack Sam Singer. Barrett is only too eager to comply. The "charade" you mention was an invention of Chevron to attempt to escape justice in Ecuador. Barrett's recent appearances to promote his book he has allowed the misperception that the case in Ecuador has actually failed as a result. Completely untrue. Why would a journalist allegedly dedicated to the truth permit this to be... well it helps sell more books, doesn't it?

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    1. Okay, Paul. Your point is made. If Chevron is defended in this book, it is no wonder they lost the case in Ecuador.

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