The Lago Agrio case has taken an interesting new turn. Steven Donziger, the crusading lawyer who has represented the Lago Agrio plaintiffs, whom Chevron is suing under the RICO Act, who was profiled in the New Yorker, and whose greatest regret is probably agreeing to be filmed for the documentary film Crude, has now been sued by several of the Lago Agrio plaintiffs themselves. The unhappy LAPs, who are of the Huaorani people, are represented by Judith Kimerling, a professor of political science at Queens College
and counsel in the original Aguinda case, the case the LAPs originally brought against Texaco in New York in the early 1990s.
The new case, pending in the Southern District of New York, is Huani v. Donziger. The basic thrust of the complaint is that Donziger and the Frente de Defensa de la Amazonia—the ADF or Amazon Defense Front—had represented to the Ecuadoran court that the ADF represented the interests of all the plaintiffs, including the Huaorani, and on that basis, the Ecuadoran court made the ADF the beneficiary of a trust established by the judgment and directed Chevron to pay ADF an additional 10% of the aggregate value of the environmental remedial measures it ordered, totaling more than $864 million. But the Huaorani
dispute the claims by ADF to represent all of the Afectados, including the Huaorani, as ADF was never authorized to repreent the interests of Plaintiffs or the Huaorani in connection with the Lago Agrio litigation. Indeed, none of the Plaintiffs ever entered into a retainer agreement with the Donziger Defendants, ADF, and/or any of their associates, and are informed and believe and thereon allege, that no Huaorani ever entered into a retainer agreement with the Donziger Defendants, ADF, and/or any of their associates to represent their interests in the Lago Agrio Litigation.
Okay, but why sue now? According to the complaint, in January 2012, the Huaorani asked ADF to clarify the basis for the ADF’s claim to represent them and to provide the names of the members of the Asemblea de Afectados y Afectadas por Texaco, which was part of the ADF and explain how the judgment amounts would be distributed. ADF responded that “it had attempted to communicate with Plaintiffs and other Huaorani, but had not been able to do so.” According to the plaintiffs, this was an acknowledgment that ” ADF and its lawyers have never obtained authorization to represent the interests of Plaintiffs or any other Huaorani in the Lago Agrio Litigation” and that ” ADF and the lawyers who work with ADF in the litigation have never informed or consulted with Plaintiffs or other representatives of the Huaorani in that matter, or included them in decision-making relating to their interests or to the conduct of the litigation.” The want to make sure that they are getting their share of the funds, and that Donziger and the ADF are not making any deals with Chevron, Ecuador, or anyone else—or engaging in self-dealing—that deprives them of their share.
I have a few reactions to all of this. First, how is it that the Huaorani and Donziger could not get their act together to resolve this dispute in private, by arbitration, for example? Airing this dirty laundry in public can’t help anyone on their side of the “versus.”
Second, will the case be considered related to the RICO case and thus transferred to Judge Kaplan? I think it may well be, and if I were Donziger that prospect would worry me greatly. The new case plays in to the image of Donziger playing fast and loose which it is reasonable to think Judge Kaplan may have.
Third, and this is really my most devout wish, what are the chances that Donziger will seek to dismiss the case on forum non conveniens grounds,1 or otherwise asks the US court to defer to the Ecuadoran courts? At face value, this does seem to me to be an issue that is properly put to the courts of Ecuador, and an FNC motion would really bring the case full circle. Maybe that’s too much for an observer to ask!
Rank speculation alert: I wonder whether there is a deeper strategic purpose to bringing this claim now, in New York. I’ve expressed concern about the risk that Judge Kaplan will rule that the Ecuadoran judgment is not entitled to recognition in response to Chevron’s motion for partial summary judgment directed at the plaintiffs’ affirmative defense of res judicata. Could this new complaint be an effort by the Huaorani to avoid being bound by that decision? I haven’t worked this out and don’t want to suggest it too strongly [ellipsis]
Correction (10/23/13): The post incorrectly identified Prof. Kimerling as counsel in the Aguinda case. She is listed on the docket as counsel for Aguinda, and in early 1995 the plaintiffs filed a motion seeking to substitute her as their lawyer in place of prior counsel. But the motion was withdrawn in June 1995 for reasons that are not clear from the docket.