December 6, 2010 11:47 AM
Patton Boggs Explains Role in Explosive Chevron Case
Posted by Michael D. Goldhaber
From The Am Law Litigation Daily
A month ago, when federal district judge Lewis Kaplan spelled out what he perceived as evidence of fraud by the lawyers suing Chevron Corporation for pollution of the Amazon rain forest, we wondered how the development might affect the makeup of the plaintiffs' legal team. We'd heard that an Am Law 100 firm was on the verge of signing on with the plaintiffs. Would this embarrassment cause the Big Law firm to think twice?
Apparently not. A mere two weeks later, Patton Boggs appeared for plaintiffs in the person of James Tyrrell, Jr.: chair of the firm's toxic tort group, a member of the Patton Boggs executive committee, and an undoubted heavy hitter. Tyrrell was reportedly good for $20 million in annual billings five years ago, before he left Latham & Watkins, and told us that he has since expanded his business considerably.
In the U.S. Court of Appeals for the Second Circuit, Tyrrell failed to stay the discovery authorized against lead U.S. plaintiffs' lawyer Steven Donziger. But Tyrrell did win an expedited hearing of the plaintiffs' appeal from Judge Kaplan's ruling, set for December 9. We invited Tyrrell to explain why he is proud to take on this controversial role, after a career as chief trial counsel for corporate defendants in the landmark mass tort actions surrounding Y2K, Agent Orange, DES, and alcohol.
In a sit-down interview last week, Tyrrell said: "I am not in any way embarrassed. I was hired to perform professional services, and professional services I intend to render. Even if a court concludes someday that Mr. Donziger did anything wrong (which I am not suggesting), that doesn't mean that my clients should lose their rights. I have not gotten any heat from my other clients, nor do I anticipate any."
What of Chevron's pointed warning after Judge Kaplan's ruling, that "anyone jumping into bed with plaintiffs" would be supporting "a fraudulent lawsuit"?
"I'm certainly not here to join in any fraudulent effort," Tyrrell said. "We cannot be exposed to liability when we have been hired to do the opposite: to make sure that the final judgment is free of fraud. My mission is to see that a judgment on the merits, warranting international respect, is entered in Ecuador, and, if we win, to enforce it." Tyrrell articulated this goal repeatedly over the course of the interview. He also noted that Patton Boggs has extensive experience in foreign enforcement--one reason that it was hired.
Tyrrell scoffed at Chevron's suggestion that his firm is conflicted. Patton Boggs has lobbied on behalf of Ecuador to preserve U.S. trade preferences that Chevron, through the Breaux-Lott Leadership Group, has lobbied to end. When Patton Boggs acquired Breaux-Lott in July, the law firm asked Chevron if it would waive the conflict; Chevron instead fired Breaux-Lott. Now Chevron cries conflict, and Patton Boggs has filed a suit asking a D.C. federal court to declare otherwise.
Tyrrell told us he wants to head off confused rulings on the alleged Patton Boggs conflict by the 15 U.S. judges presiding over Chevron's discovery efforts in the United States. Chevron is broadly seeking U.S. discovery in aid of foreign proceedings, under 28 U.S.C. section 1782, in search of misconduct by plaintiffs' consultants and lawyers (including Donziger). Tyrrell called this nationwide campaign completely unprecedented and disdainful of sovereignty.
"[Section] 1782 was not intended as a device to collaterally attack the integrity of a foreign proceeding without any attempt to determine whether the foreign court is interested," he said. Tyrrell also complained that each judge lacks a full view of the case, but would not comment on the report that he may seek to consolidate the section 1782 actions in multidistrict litigation.
To achieve his main goal of obtaining an enforceable judgment in Ecuador, Tyrrell needs above all to get past the $27 billion damages report filed with the Ecuadorian court by court expert Richard Cabrera, which has been seriously impugned by Chevron in its discovery actions.
Well before Patton Boggs's first appearance for plaintiffs, Tyrrell said, he supported the plaintiffs' June 21 motion to the trial court in Lago Agrio, Ecuador, suggesting that the parties file new damages reports. After the Ecuadorian court granted that motion, Tyrrell also played an active role in retaining the six new plaintiffs' experts who, on September 16, upped the ante to $113 billion in damages.
The plaintiffs' path to victory, as we've written previously, is to persuade an enforcing court that any Cabrera taint has been removed from the eventual Lago Agrio judgment. Of course, exposing the alleged Cabrera fraud later would have made this impossible. Chevron's lawyers might have been cannier to defer their most damaging discovery until after the Ecuadorian court issued a judgment.
"Did Chevron shoot its wad too early?" Tyrrell asked. "I'm not commenting on Chevron's strategy. I'm just glad they laid it out in front of the court, and we have the opportunity to see that a judgment commanding international respect is entered."
Chevron argues that the Cabrera fraud is incurable, and that in any event a Lago Agrio judgment would be unenforceable for countless reasons having nothing to do with Cabrera. Chevron dismisses the hiring of Patton Boggs as a desperate attempt by the litigation's funders to salvage a failing investment.
According to Chevron, new discovery has revealed that the plaintiffs' funders include Burford Group Limited, a third-party dispute financier with strong ties to Patton Boggs. Both Patton Boggs, through Tyrrell, and Burford Group, through spokesperson Doug Donsky, declined to comment as a matter of policy. Tyrrell acknowledged that he is friends with many people at Burford--including chairman Selvyn Seidel--from their days working together in the Latham litigation department.
"The plaintiffs' backers can hire as many law firms as they'd like," said Chevron spokesperson Kent Robertson. "It doesn't change the fact that their colleagues have already corrupted this trial such that no legitimate court in the world will see it as anything but a fraud."
This article originally appeared in The Am Law Litigation Daily.Make a comment