Chevron’s lawyer, Ted Olson, has now responded to the appellants’ post-argument briefing with a very good letter brief of his own. The brief makes what I think is an appealing point about the BIT arbitration. Donziger now points to the BIT arbitration and the risk that it will yield an inconsistent finding of fact, particularly on the ghostwriting issue. Well, Olson writes, hasn’t Donziger waived or disclaimed any reliance on the arbitral tribunal, and any argument that the courts should defer to it, by his regular attack on the arbitrators and the arbitration? I’m not sure that this is compelling doctrinally, but it has persuasive value, because Donziger’s team has been badmouthing the tribunal and its members for a long time. Olson makes other points about the BIT arbitration that seem stronger. Two proceedings were necessary, he claims, because Ecuador could not have been joined in the RICO litigation on account of its sovereign immunity, and Donziger and the LAPs could not have been joined in the arbitration. That seems basically right to me, though I’m not really sure how far it gets Chevron. The point about the risk of inconsistent decisions doesn’t have much to do with the purity of Chevron’s motives in bringing the multiple claims, as far as I can tell.
Olson also emphasizes a point I’ve noted before. It’s well and good for Deepak Gupta and Burt Neuborne to cast doubt on Judge Kaplan’s findings of fact and to suggest that the true facts show that their clients are innocent of wrongdoing. But it’s just a fact that none of the appellants have asked the Second Circuit to find that Judge Kaplan’s findings were clearly erroneous. So his findings of fact are the facts for purposes of this case.
The last point I want to highlight is Footnote 4 of the brief. Recall that at oral argument Judge Wesley claimed that English law provided for a retrial on the merits when it appears the judgment to be enforced was obtained by fraud. Not so, Olson writes. Under Abouloff v. Oppenheimer, (1882) 10 QBD 295 and later cases, English law permits a trial on the question of fraud, but not on the underlying merits.
And now from the sublime to the ridiculous. MCSquared’s case against Sharon Stone has been dismissed with prejudice. The dismissal was by notice, so neither court approval nor the approval of Stone was required. Typically a notice of dismissal signals a settlement has been reached, but it’s impossible to know whether there was some sort of settlement, or whether MCSquared, which, I suggested, was on the ropes, simply threw in the towel. Or it could be that the dispute is now in arbitration. I asked the lawyers for both sides for comment but didn’t hear anything. That may be because whatever settlement may have been reached was confidential, or it may be because the lawyers simply didn’t want to talk with me.