Last March, U.S. District Judge Lewis Kaplan concluded his 500-page opinion on the Ecuadorean litigation fraud against Chevron Corp. with a lament. We will never know, he wrote, whether the Ecuadorean plaintiffs had a legitimate claim against Chevron for pollution of the Amazon. The whole legal world nodded in agreement with the exception of one person: Judge Richard Wesley of the U.S. Court of Appeals for the Second Circuit.
On Monday, the plaintiffs and their U.S. lawyer in the Ecuador suit, Steven Donziger, asked the Second Circuit to overturn Kaplan's epic ruling, which labeled Donziger a fraud and enjoined the plaintiffs from collecting a $9.5 billion tort judgment handed down by an Ecuadorean court. [For the oral argument transcript, see here. For additional analysis, see my companion column, The Global Lawyer: Will Chevron Lose in the Second Circuit?]
"The court is ahead of me," confessed Olson.
Wesley explained that a court of equity, at least in Victorian England, had the power to order a retrial in its own courts of a foreign proceeding tainted by fraud. "If we had the [same] powers as Queen's Bench did," he mused, "we could order you to go to trial—and a trial that you once resisted mightily in the Southern District—and retry this case." The judge asked each lawyer in turn: "Would you consent to retrying this case?"
"I couldn't possibly do that," replied Olson for Chevron.
"We would have no objection to that," replied Donziger counsel Deepak Gupta of Gupta Beck.
"I must say you're in the wrong place—you should be in academe," replied professor Burt Neuborne for the Ecuadorean plaintiffs. "That's a very original idea."