A few days ago, I noted Steven Donziger’s FRAP 28(j) letter to the Second Circuit panel that soon (or soonish) will decide his appeal from Judge Kaplan’s decision. The other parties have now chimed in, too.
Burt Neuborne, the LAPs’ lawyer, has submitted a FRAP 28(j) letter making two points. First, he notes that while Judge Kaplan didn’t regard the Ecuadoran de novo appellate decision as the operative judgment, the Canadian Supreme Court did. I’ve previously suggested that this argument has some legs, but I question whether the Canadian decision really says anything useful about which judgment is at issue. Second, Neuborne argues that under the new Yaiguaje decision the LAPs have the right to seek to enforce the Ecuadoran judgment in Canada. But those of the LAPs who are parties to the RICO case are enjoined from seeking to benefit from the judgment, and Neuborne claims that “as inhabitants of the ravaged Orienté, [they] will unquestionably ‘benefit’ from enforcement of the Sucumbíos land remediation judgment.” Thus, he asserts, the injunction bars them from seeking to enforce the judgment in Canada, in violation of the Second Circuit’s Naranjo decision.
Chevron’s lawyer, Ted Olson, responded with his own letter, rejecting both Donziger’s and the LAPs’ assertions about the implications of Yaiguaje. As to Donziger’s arguments, Olson pointed out that while the Canadian court found jurisdiction in Canada, defenses such as fraud were still open to Chevron in Canada. As to the LAPs’ argument about the de novo appellate decision in Ecuador, I think Olson is right to say that the Canadian court didn’t make any findings on the issue. The court correctly noted that the LAPs were seeking to enforce the appellate judgment, but that’s simply to acknowledge how the LAPs have framed their claim, not to say that the Canadian courts would, in the end, agree or disagree with the characterization. Olson also argues that the Ecuadoran judgment is simply a money judgment, not a land remediation judgment as the LAPs asserted. Neuborne had a rejoinder to these points, but because the court denied him leave to file it, Chevron will get the last word. Unless the court, despite having denied Neuborne’s motion, reads the proposed letter Neuborne submitted with the motion, in which case Neuborne gets the last word.