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A federal judge recently rebuked defense lawyers for ChevronTexaco Corp. in one of the nation’s leading human rights abuse cases for keeping silent for years over confusion about who controlled Chevron’s Nigerian subsidiary. In a series of orders, U.S. District Judge Susan Illston called “troubling” the failure of Jones Day lawyers, led by Robert Mittelstaedt, to wait four years to alert the court that plaintiffs sued the wrong corporate entity in Bowoto v. Chevron Corp., No. C99-2605SI. “Even setting aside the question of whether defendants had a duty to promptly correct the discovery responses they provided to plaintiffs’ counsel, defendants had an obligation to clarify the misunderstanding of this court,” Illston wrote. She added, “[a]llowing this litigation to proceed, while the opposing party and the court suffered from an obvious misunderstanding, was not acceptable.” Village killings alleged The lawsuit accuses Chevron, through its Nigerian subsidiary, of aiding the Nigerian military in killing and torturing villagers who protested environmental harm from offshore oil drilling in 1998 and using a Chevron boat to ferry soldiers to two villages that were burned to the ground after the protests. The suit alleges that the Nigerian subsidiary hired government security forces to protect its offshore oil platforms. One hundred unarmed protesters in boats occupied a Chevron platform for two days in 1998. Troops ferried to the platform by Chevron helicopters shot protesters, killing two. At least one other was tortured while held in a cargo container on the platform, according to the allegations. Although Illston relied on the erroneous corporate names in part for her 2004 denial of Chevron’s summary judgment motion, the oil giant disclosed in June 2005 for the first time that nondefendant Chevron USA Inc., rather than named defendant Chevron Overseas Petroleum Inc., oversaw the Nigerian subsidiary. Illston said in the recent orders that plaintiffs’ lawyers should be allowed to amend the suit to name Chevron USA Inc. for the first time, and she expressed “concern” that “defense counsel knew that both plaintiffs and the court misunderstood Chevron’s corporate structure, yet failed to correct these misunderstandings for years.” Mittelstaedt declined to comment on the judge’s criticism. Illston’s order does not name the law firm or a specific attorney. Mittelstaedt was a member of the initial Chevron defense team in 1999 while at Pillsbury Winthrop Shaw Pittman and took the case with him when he left in 2003 to launch the Jones Day office in San Francisco, according to press accounts at the time and court records. The court’s criticism covers a period when Chevron was represented by both firms. “They had an obligation to correct the errors once they knew about it,” said Marco Simons, one of the plaintiffs’ attorneys who is with Earthrights International in Washington. In her series of six complex orders issued between Aug. 22 and 29, Illston also eliminated several plaintiff theories of liability, including violations of the Torture Victim Protection Act and Alien Tort Claims Act. But she retained important potential liabilities for Chevron for alleged crimes against humanity, California state law liability for assault and battery, wrongful death and negligence, allowing for potential punitive damages. Chevron spokesman Kent Robertson said that the company “will be filing new motions against the state law claims. The judge got rid of the Alien Tort Claims statute, which leaves only the crimes against humanity claim, which we don’t believe the plaintiffs will be able to establish,” he said. Simons said that Illston has “allowed us to proceed to challenge all the wrongful conduct. No claim was dismissed,” only some legal theories of liability. In addition, Illston opened the way for the deposing of two recently discovered key witnesses, employees of a contractor who were aboard the boat that took the soldiers to the villages where residents were killed and buildings burned. Simons said that from the view of a personal injury lawyer, he does not find her elimination of some theories significant to the overall case. The suit is similar to others around the nation in which human rights groups seek to hold American companies liable for alleged violations of human rights abroad by their overseas subsidiaries. The 9th U.S. Circuit Court of Appeals held that vicarious liability theories are available under the Alien Tort Claims Act in a case against a mining conglomerate in the Solomon Islands, Sarei v. Rio Tinto, WL22442146.

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