Steven Donziger’s appellate counsel, Deepak Gupta, has filed a FRAP 28(j) letter in the Second Circuit with his suggested takeaways from the recent Yaiguaje decision.
The main persuasive point of the letter is that the Yaiguaje court made it clear that Chevron would have the ability, on remand, to raise all defenses it has to recognition and enforcement of the Ecuadoran judgment. In particular, Chevron will have the ability to raise “fraud, denial of natural justice, or public policy” as defenses. Thus, Gupta suggests:
a preemptive collateral attack would do great violence to international comity, while accomplishing nothing. That’s also why there is no such cause of action, no standing, and no need for equitable relief. If Chevron must defend itself in Canada no matter what happens here, what is to be gained by injecting the U.S. courts into the fray?
The underlying point has appeal: the plaintiffs are not seeking recognition in the United States, and the fraud issues can be litigated where they are seeking recognition—in Canada. So what is the point of the RICO action? But I think this goes too far, at least coming from Donziger’s lawyers rather than the LAP’s lawyers. Judge Kaplan’s decision, if affirmed, will prevent Donziger from profiting from the judgment, even if the LAPs do obtain recognition in Canada.