On January 28 , Chevron Corp. filed overwhelming new testimonial and documentary evidence of fraud by the Ecuadorian plaintiffs who hold a $19 billion judgment against it — including a declaration by a former judge that the judgment itself was procured through bribery.
Human rights advocates have rallied behind the allegations that Chevron is responsible for an environmental calamity in the Ecuadorian Amazon. Distinguished counsel in the United States, Canada, Brazil and Argentina are avidly seeking to enforce the Ecuadorian judgment. And most disturbingly, the enforcing courts are listening, with an Argentine court ruling on January 30 that 40 percent of Chevron’s local affiliates’ revenues should be frozen pending enforcement.
For a journalist to weigh evidence that will be considered by a jury is often inappropriate. But in this case it’s imperative. The documentary evidence of fraud (never mind the testimony) is now virtually unanswerable. To pretend otherwise is to encourage irresponsible courts to reward the alleged fraud.
Even before the latest evidentiary bombshells, adjudicators outside Ecuador who have weighed the evidence have consistently condemned the plaintiffs. Eight U.S. courts have now found a prima facie showing of fraud under the crime -fraud exception to privilege. Plus, a panel of international arbitrators found the fraud allegations persuasive enough to order the Republic of Ecuador, in January 2012, to take all measures to suspend enforcement.
The central fraud allegation originally was that the plaintiffs had ghostwritten the damages recommendation of the main court-appointed expert, which they had for years passed off as independent. Chevron’s evidence on the "Cabrera report" was so strong — the expert was essentially caught on film taking orders — that the plaintiffs eventually admitted this ghostwriting (without admitting to fraud).
After a long windup, the real knockout punch landed. Chevron has over the past year amassed serious evidence of ghostwriting in the Ecuadorian judgment itself. Last month, Chevron added to that evidence, and a former judge in the case, Alberto Guerra, offered a firsthand account of the alleged judicial ghostwriting arrangement. Guerra swears that parties routinely paid him (after his own removal from the bench) to ghostwrite orders in their favor for Judge Nicolas Zambrano, and that (after Chevron declined his services) the Ecuadorian plaintiffs paid Guerra to play that role in the Chevron case. Finally, Guerra says that the plaintiffs promised Zambrano a half million-dollar bribe to let them ghostwrite the judgment themselves, with a few tweaks by Guerra. Come what may, I expect Chevron to seek revenge on the plaintiffs’ team in the New York fraud trial, and to demand in arbitration that Ecuador cover its record legal bills. It would be fitting if Chevron donated such a recovery to environmental and health projects in the Ecuadorian Amazon. Chevron is closing in on truth and, in a very partial way, closing in on justice.
Michael D. Goldhaber is senior international correspondent for ALM and The American Lawyer.