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February 22, 2011 9:52 AM

John Keker, Representing Embattled Plaintiffs Lawyer Steven Donziger, Hints He May Seek Recusal of Judge Kaplan

Posted by Michael D. Goldhaber

From The Am Law Litigation Daily

On Friday, four days after an Ecuadorian court hit Chevron with a multibillion dollar judgment for despoiling the Lago Agrio region, the parties appeared before Manhattan federal district court judge Lewis Kaplan for a hearing on Chevron's request for a preliminary injunction. In a surprise appearance, white-collar defense lawyer John Keker showed up as counsel for embattled plaintiffs lawyer Steven Donziger.

Donziger is fighting a RICO suit filed by Chevron that casts him as the ringleader of a plaintiffs' team that, among other things, ghostwrote the report of a supposedly independent court-appointed expert in Ecuador. He's also fighting Chevron's efforts to keep the plaintiffs from enforcing their judgment. On Feb. 8, before the $8 billion judgment was issued, Judge Kaplan issued a 14-day temporary restraining order barring the Ecuadorian plaintiffs and their lawyers from advancing enforcement of an Ecuadorian award.  On Monday, Judge Kaplan extended the TRO to March 8.

Keker--who told the court that he had just been retained by Donziger 24 hours earlier--asked the court for an adjournment. After Kaplan denied that request, Keker objected for the record that the judge wasn't giving Donziger sufficient time to oppose the preliminary injunction. Keker also disputed the availability of injunctive relief in private RICO actions, and asserted that the case raised serious issues of extraterritoriality.

The San Francisco lawyer appeared to provoke Kaplan when he remarked to the judge that "you have expressed your views" on the case. The judge shot back: "I take issue with that." (The lawyer then clarified that he was speaking only of "aspects of the case.") Near the end of his appearance, Keker told the court he planned to look into "issues of assignment and recusal." Keker could not be reached later to discuss this comment.

Two former executive directors of the New York Civil Liberties Union, Steven Hyman and Norman Siegel, made their first appearances on behalf of the Lago Agrio plaintiffs. Hyman stressed that the court lacked jurisdiction over the Ecuadorians. Siegel emphasized that the court should abstain on the basis of comity, and that Chevron is asking Kaplan to sit as an appeals court. The judge responded that he need not examine the merits if the crux of Chevron’s argument is that Ecuador’s legal system failed to provide due process.

Kaplan asked if he should blindly defer to a system that even plaintiffs' lawyer Donziger decried on camera, in the discovered outtakes of the documentary Crude, as corrupt and susceptible to intimidation. "I’m supposed to ignore all that?" asked the judge. Siegel replied that all people, including lawyers, are prone to embellishment when speaking passionately in the public square.

Arguing for Chevron, Randy Mastro of Gibson, Dunn & Crutcher cited precedents for injunctive relief in private RICO actions, and to prevent vexatious litigation overseas. Mastro claimed that the plaintiffs planned to ignore Judge Kaplan’s orders, and go overseas to enforce the judgment.

Judge Kaplan deferred ruling on the preliminary injunction and asked the parties to submit affidavits next week on the timing of when the judgment becomes enforceable. Both sides suggested that the judgment--now pegged by Chevron at $18.2 billion including penalties--will become final after the first-level Ecuadorian appeal. Mastro said this step could take days, while Keker said it could take six months.

Perhaps most significantly, the judge asked the parties to consider whether Chevron’s request for a declaration that the judgment is unenforceable should be severed for a prompt trial.

 

Contact Michael Goldhaber at [email protected]

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