On Tuesday, Judge Kaplan issued a 97-page decision granting in part and denying in part Chevron’s motion for partial summary judgment in the RICO litigation Chevron has brought challenging an allegedly fraudulent $18 billion dollar judgment against it in Ecuador under that country’s Environmental Management Act for “environmental harms to the community.”
Chevron’s motion sought to dismiss the defendants’ affirmative defenses of res judicata and collateral estoppel. Judge Kaplan held that it was too soon to determine that the judgment cannot be enforced in New York, but the detailed opinion found that certain of the Ecuadorian proceedings were “tainted” including an expert report cited in the Ecuadorian judgment:
[T]he LAPs’ procurement of the termination of judicial inspections, the adoption of the global assessment, and the appointment of Cabrera all unquestionably were tainted. The secret participation of the LAP team in Cabrera’s activities and its secret drafting of the bulk of Cabrera’s report were tainted as well. Moreover, there are serious questions concerning the preparation of the Judgment itself in view of the identity between some portions of the Judgment and the Unfiled Fusion Memo, especially in light of the undisputed pattern of ex parte advocacy in the Lago Agrio Litigation and the undisputed instance of the LAP team’s coercion of and duress on one of the judges to obtain a desired result.
Judge Kaplan went so far as to describe the the evidence relating to the expert report and its relationship to the judgment “disturbing” but held that ” the ultimate materiality of the taint that indisputably has been established thus far remains a genuine issue.”