Ceglia v. Zuckerberg et al

Filing 573

MEMORANDUM in Opposition re 553 MOTION for Discovery filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Certificate of Service)(Boland, Dean)

Download PDF
1 1 *** UNCERTIFIED ROUGH DRAFT *** 2 UNCERTIFIED TRANSCRIPT DISCLAIMER 3 IN THE MATTER OF 4 __________________________________________ 5 6 CHEVRON 7 8 -against- 9 10 DONZIGER 11 12 __________________________________________ 13 14 The following transcript of 15 proceedings, or any portion thereof, in 16 the above-entitled matter, taken on any 17 date, is being delivered unedited and 18 uncertified by the official court 19 reporter. 20 The purchaser agrees not to 21 disclose this UNCERTIFIED and UNEDITED 22 transcript in any form (written or 23 electronic) to anyone who has no 24 connection to this case. 25 unofficial transcript, which should NOT be This is an *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 2 1 *** UNCERTIFIED ROUGH DRAFT *** 2 relied upon for purposes of verbatim 3 citation of testimony. 4 This transcript has not been 5 checked, proofread, or corrected. 6 draft transcript, NOT a certified It is a 7 transcript. 8 computer-generated mistranslations of 9 stenotype code or electronic transmission As such, it may contain 10 errors, resulting in inaccurate or 11 nonsensical word combinations, or 12 untranslated stenotype symbols which 13 cannot be deciphered by non-stenotypists. 14 Corrections will be made in the 15 preparation of the certified transcript, 16 resulting in difference in content, page, 17 and line numbers, punctuation, and 18 formatting. 19 This uncertified and unedited 20 transcript contains no appearance page, 21 certificate page, index, or certification. 22 23 24 25 *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 3 1 2 *** UNCERTIFIED ROUGH DRAFT *** HON. POOLER: I understand all 3 parties are here so due to the length 4 of the challenge, I won't call it. 5 We'll start with the first case 6 on our calendar which is Chevron 7 Corporation versus Camacho and others. 8 The panel has determined that 9 the first five minutes will be on the 10 mandamus motion, the movants and the 11 opponents, and then we will turn to 12 the other issues on appeal. 13 14 So five minutes on the clock on the mandamus motion. 15 MR. TYRELL: May it please the 16 court, my name is James Tyrell from 17 the firm of Patton Boggs and I 18 represent individual Ecuadorian 19 citizens, Mr. Camacho and Mr. 20 Payaguaje. 21 was going to start the other way, but 22 I'm happy to start on the mandamus 23 petition. The court surprise me. 24 HON. POOLER: Thank you. 25 I MR. TYRELL: I start with the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 4 1 *** UNCERTIFIED ROUGH DRAFT *** 2 standard. 3 application of mandamus is an The standard for 4 objective analysis. 5 USC 455A is based upon what the man in 6 the street perceives the 7 reasonableness of judicial conduct. 8 Any doubt is to be resolved in favor 9 of recusal. Recusal under 28 We maintain that the 10 standard here is one of deep 11 antagonism, that deep antagonism has 12 been demonstrated by the district 13 court to the judicial system of 14 Ecuador, to my individual clients, and 15 to my individual clients' lead 16 counsel, Mr. Donziger. 17 We ask that, in addition to 18 mandamus, that the court consider as 19 an alternative but also available, 20 reassignment. 21 The conduct of the district 22 court can be put into several broad 23 categories, each of which we believe 24 mandates recusal or reassignment. 25 Number one, prejudice and *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 5 1 *** UNCERTIFIED ROUGH DRAFT *** 2 visceral snap judgment. 3 had this case at the time of the 4 Berlinger 1782 and in that case with 5 no reason to do it, it discredited the 6 Ecuadorian court system saying that it 7 would be happy to wait for a judgment 8 if it was the high court of London but 9 not a court in Ecuador. 10 11 12 13 This court That was in April of 2010. In September of 2010 in the Donziger Section 1782 -HON. LYNCH: I'm sorry, I don't 14 understand, isn't the very issue in 15 this case whether the Ecuadorian 16 system of justice is to be credited? 17 Isn't that the whole point? 18 understand that you take the position 19 that it should be and that the judge 20 was wrong in his view that there are 21 deep problems with the Ecuadorian 22 judicial system, but are you just I 23 saying that he came to a conclusion 24 that is erroneous about that issue? 25 MR. TYRELL: It's the timing, *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 6 1 *** UNCERTIFIED ROUGH DRAFT *** 2 your Honor, in the Berlinger 1782, the 3 issue was the discovery of the 4 outtakes. 5 Ecuadorian court system was not before 6 the court. 7 disparage the Ecuadorian court system 8 at that time. 9 which I'm about to get to, there was The legitimacy of the He went out of his way to In the Donziger 1782, 10 no issue yet because there was no 11 filing for declaratory judgment. 12 again went out of his way to disparage 13 the Ecuadorian court system. 14 short, it demonstrates a prejudgment, 15 a snap visceral reaction which is 16 precisely the kind of thing that this 17 court in a recent case in 2010 said 18 has to be looked at for purposes of 19 recusal. 20 He In In the Donziger 1782, what does 21 the court say? 22 own words. And it's the court's 23 become the next big thing in fixing 24 the balance of payments deficit. 25 I got it from the beginning. Mr. Donziger is trying to Key, In other *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 7 1 *** UNCERTIFIED ROUGH DRAFT *** 2 words, he knew from the prior 3 proceedings before involving Berlinger 4 what that case was about. 5 fraud, a sham by American class action 6 lawyers to, as he said it, hit Chevron 7 big, and the statements are in our 8 brief; I won't go through them. 9 particular comments disparaging Mr. It was a Those 10 Donziger before this case is ever 11 filed dealing with declaratory 12 judgment or civil RICO evidenced a 13 predisposition and unwillingness to 14 have an open mind with respect to 15 issues now before the court in this 16 case. 17 HON. LYNCH: Had Judge Kaplan 18 seen the film by the time he made 19 those comments about Mr. Donziger? 20 MR. TYRELL: He had seen five 21 minutes of outtakes of six hundred 22 hours of film. 23 forward in our brief, Chevron is a 24 master and their counsel are a master 25 of taking two words here, a snippet And as we have put *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 8 1 *** UNCERTIFIED ROUGH DRAFT *** 2 there, gluing them together. 3 set forth in our brief the entire 4 context. 5 We have The bottom line is Judge Kaplan 6 is not changing his mind; he will 7 never change his mind. 8 Mr. Donziger is some sort of PR guy, 9 as he said, not a lawyer, not entitled 10 He believes to an attorney-client privilege. 11 With Mr. Donziger, as this court 12 well knows, he made Mr. -- my clients, 13 my Ecuadorian plaintiffs forfeit 14 eighteen years of privileged documents 15 because Mr. Donziger, who he has no 16 respect for, supposedly missed a 17 deadline to get a privilege log in at 18 the same time that he moved to strike 19 the entire subpoena or limit its 20 scope. 21 court, and I argued it last December, 22 the court said there's only one reason 23 why that would be appropriate and that 24 is the criminal proceedings, their 25 imminence pending in Ecuador. When we were before this It had *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 9 1 *** UNCERTIFIED ROUGH DRAFT *** 2 instructed the district court that if 3 that imminence went away, he should 4 sua sponte go back and look at that 5 privilege waiver. 6 court never did it. 7 now that privilege waiver has been 8 extended by the district court in ways 9 we've never seen before to potentially 10 include the documents of thirty other 11 law firms and consultants, including 12 my law firm Patton Boggs, who is 13 somehow deemed to have waived the 14 privilege derivative of Mr. Donziger's 15 waiver of the privilege. 16 the kinds of things that are judge, 17 who has an open mind and is willing to 18 demonstrate the appearance of 19 impartiality, does. 20 Of course, the In fact, right These aren't Your Honor, I'm out of time, but 21 there's more to say. 22 you wish. 23 I'll do whatever HON. POOLER: We'll hear from 24 Chevron on the recusal motion. 25 MR. TYRELL: And so I can *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 10 1 *** UNCERTIFIED ROUGH DRAFT *** 2 clarify, will I come back to speak to 3 the merits argument and will I have 4 nine minutes at that time? 5 6 7 8 9 10 HON. POOLER: Yes. MR. TYRELL: Thank you very much, your Honor. MR. MASTRO: Thank you, your Honors. Actually, the standard on 11 mandamus, it's one of the highest 12 standards that can possibly be -- 13 HON. POOLER: Could you do 14 something with the microphones? 15 MR. MASTRO: Your Honor, the 16 standard on mandamus, as this court 17 well knows, are that it is an 18 extraordinary measure and only granted 19 in the most extreme circumstances. 20 One, it has to be a circumstance of 21 mandamus where an appeal would not 22 suffice; two, it has to be such a 23 clear and undisputable abuse of 24 discretion, because we're talking 25 about abuse of discretion here; and *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 11 1 *** UNCERTIFIED ROUGH DRAFT *** 2 three, it has to involve significant 3 issues. 4 HON. POOLER: The defendants 5 argue that they have lost every single 6 time they've come before this judge. 7 MR. MASTRO: Actually, they've 8 lost every single time they've been 9 before this court, your Honor. 10 the very thing that Mr. Tyrell 11 complains about -- 12 13 And HON. POOLER: Not exactly. MR. MASTRO: Mr. Tyrell complains 14 about the privilege waiver and the 15 ramifications of that and Judge 16 Kaplan's as to Mr. Donziger and 17 ramifications of that. 18 affirmed, affirmed with an opinion 19 that made crystal clear that Judge 20 Kaplan had handled the cases -- he'd 21 had multiple cases at that point -- 22 in, quote, an exemplary manner and 23 that all concerned, not least this 24 court, are well served by his 25 stewardship. This court *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 12 1 2 *** UNCERTIFIED ROUGH DRAFT *** Now, your Honor, Liteky is the 3 standard and Liteky tells us, the 4 Supreme Court has told us flat out the 5 judicial rulings alone almost never 6 are a cause for mandamus, that it's 7 not reviewable, a decision for bias or 8 prejudice whether it's based on his 9 knowledge or opinion based on what's 10 properly happened in the case. 11 this case, Judge Kaplan's And in 12 observations, Judge Kaplan's rulings, 13 they were, your Honor, when Donziger 14 ruled -- when he ruled on Donziger's 15 waiver, he had seen the crude outtakes 16 because this court confirmed the crude 17 outtakes being released. 18 showed Mr. Donziger saying that 19 Ecuador, the judges in Ecuador are 20 corrupt, it's their birthright, saying 21 that they don't decide by the law, 22 they decide by who they fear, saying 23 that maybe the judge won't be killed 24 but if he thinks he will, that's good 25 enough. And they These are the kinds of things *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 13 1 *** UNCERTIFIED ROUGH DRAFT *** 2 that he admitted and on those crude 3 outtakes, they showed the plaintiff's 4 leading -- the court's global damages 5 expert, supposedly an independent -- 6 7 HON. POOLER: Counsel, what you're describing is evidence. 8 9 MR. MASTRO: And that's what Judge Kaplan -- 10 HON. POOLER: But has he made 11 findings based on that evidence up 12 until his last decision? 13 I think that's what counsel is saying 14 is that before he made a decision, he 15 seemed to have prejudged the issue. 16 He had not. MR. MASTRO: Absolutely not, your 17 Honor. 18 context, we had to show that we were In the Donziger waiver 19 entitled to have a subpoena issued and 20 he reviewed the evidence to date, 21 including the crude outtakes which 22 showed Mr. Donziger's blatant 23 misconduct, in fact his criminal 24 conduct. 25 ruling that this court affirmed based So your Honors, he made a *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 14 1 *** UNCERTIFIED ROUGH DRAFT *** 2 on the evidence before him which 3 included the crude outtakes. 4 Honor, he made rulings in our case 5 based on an overwhelming record. 6 thirty years of practice and as a 7 former prosecutor, I've never seen a 8 record so shocking of illegal and 9 improper conduct; a fraud on the court And your In 10 in Ecuador blackmailing the judge to 11 get them to appoint a court-appointed 12 officer and then ghostwriting his 13 report word for word and submitting 14 other false expert reports and now the 15 evidence -- with complicity of counsel 16 of trying to cleanse that fraud by 17 offering new experts who did no work 18 themselves, relied simply on the old 19 fraudulent Cabrera report. 20 Honor, the latest efforts even that 21 these plaintiffs and their agents -- 22 I'm referring to the LAPs, not Chevron 23 as the plaintiff -- they even 24 ghostwrote the judgment that issued 25 out of Ecuador. And your We see whole sections *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 15 1 *** UNCERTIFIED ROUGH DRAFT *** 2 of internal memos of theirs that were 3 never submitted to the court that 4 showed up word for word in the 5 Ecuadorian judgment as well as their 6 own internal database, never turned 7 over to the court called Selva Viva 8 which turned out to be a hotel room. 9 That shows up word for word in the 10 11 12 judgment. HON. POOLER: Counsel, the issue as to the validity of the Ecuadorian 13 judgment is, in fact, to be tried by 14 Judge Kaplan. 15 MR. MASTRO: Correct, your Honor. 16 HON. POOLER: And what these 17 defendants, plaintiffs in other 18 contexts, are saying is that he 19 appears to have prejudged the issue of 20 the validity of the Ecuadorian 21 judgment. 22 yet. 23 That has not been decided MR. MASTRO: But your Honor, what 24 he has done is issue -- and we're now 25 getting into the second part of the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 16 1 *** UNCERTIFIED ROUGH DRAFT *** 2 argument -- he issues a status quo 3 preliminary judgment based on what was 4 undisputed evidence before him of 5 fraud in the procurement of the 6 judgment and lack of impartiality 7 in -- 8 9 HON. WESLEY: Well, that's not true because the timelines were pretty 10 tight; weren't they? 11 have much time to respond. 12 showed up with a thousand pages, 13 didn't you, of exhibits and Donziger 14 got how many days to respond? 15 16 You had MR. MASTRO: Actually, your Honor -- 17 18 Donziger didn't HON. WESLEY: It's a just question. 19 I need you to respond. MR. MASTRO: He, from the time he 20 had notice of the complaint and the 21 TRO which was issued on notice, it was 22 not issued at the outset, he had eight 23 days to come into the court on the TRO 24 and then until the eleventh, that's 25 eleven days, to submit additional *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 17 1 *** UNCERTIFIED ROUGH DRAFT *** 2 papers. 3 did. 4 sixty-plus page brief at the TRO 5 hearing and hundreds of pages of their 6 own of exhibits. Mr. Donziger chose 7 not to do that. The LAPs put in more 8 papers by the eleventh. 9 chose not to do that even while he had 10 a prominent criminal defense attorney 11 in the New York City, Jay Lefkowitz, 12 speak on his behalf the very first day 13 the complaint was filed. 14 He chose not to. The LAPs The LAPs, in fact, put in a Mr. Donziger HON. POOLER: How can you say the 15 evidence then was uncontroverted? 16 They did attempt to controvert it; 17 didn't they? 18 MR. MASTRO: But your Honor, they 19 didn't put in any evidence, no sworn 20 statement from anyone, not Mr. 21 Donziger, no one in Ecuador, nowhere 22 disputing our evidence from the crude 23 outtakes and from their own internal 24 documents, including their own 25 Ecuadorian lawyers who wrote, when the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 18 1 *** UNCERTIFIED ROUGH DRAFT *** 2 fraud was going to be revealed, that 3 this is a disaster for our case, it 4 will destroy it. 5 lawyers, may all go to jail. 6 words, not mine. 7 single sworn statement from anybody, 8 not Donziger, not an Ecuadorian 9 lawyer, not a plaintiff, no one, We, your Ecuadorian Their They didn't put in a 10 disputing the fraud in the submission 11 of falsified expert reports, you had 12 ghostwriting in the Cabrera report -- 13 14 HON. POOLER: We're a little off the topic. 15 This is on recusal. MR. MASTRO: But your Honor, I 16 was just coming to Judge Kaplan who's 17 not prejudged, he has done what a 18 judge should do which is to decide a 19 preliminary injunction, decide whether 20 there is a likelihood or success or 21 serious questions going to the merits, 22 evaluated all of the evidence before 23 him, and that evidence, your Honors, 24 showed undisputed, because they put 25 nothing in to dispute this core *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 19 1 *** UNCERTIFIED ROUGH DRAFT *** 2 evidence, that they had ghostwritten 3 expert reports, that they -- 4 5 HON. POOLER: We'll hear from them on the merits. 6 7 MR. MASTRO: 8 9 I understand. I just want to make the point -HON. POOLER: So you're opposing recusal of Judge Kaplan? 10 MR. MASTRO: Oh, without 11 question, your Honor. 12 had recusal motions time and time This court has 13 again. 14 tried with Judge Rakoff when he was 15 overseeing the Aguinda case and it had 16 failed then, the judge vilified him -- 17 This is the same tactic they HON. LYNCH: Mr. Mastro, you may 18 take notice of the fact that the 19 presiding judge has told you to sit 20 down. 21 MR. MASTRO: I'm sorry, your 22 Honor. 23 point. I just wanted to make that 24 Thank you very much. 25 HON. POOLER: Before I turn to *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 20 1 *** UNCERTIFIED ROUGH DRAFT *** 2 the merits argument, we gave 3 permission to Chevron to have a 4 reporter here. 5 the transcript should be sent to the 6 clerk's office as well. 7 Of course, a copy of You're aware of that, counsel? 8 9 MR. MASTRO: Of course, your Honor. 10 MR. TYRELL: May it please the 11 court, eighteen years of litigation do 12 not easily lead to a recitation of the 13 facts, so I'll skip them. 14 like to frame, particularly in light 15 of Judge Wesley's questions, some 16 headlines which are both important to 17 the merits and to what we've just 18 discussed. But I would 19 After nine years of litigation 20 in New York, this court dismissed on 21 forum non conveniens, as you're aware, 22 the action brought here. 23 based on promises exclusively made by 24 Chevron that representations that the 25 court in Ecuador was fair and It did so *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 21 1 *** UNCERTIFIED ROUGH DRAFT *** 2 impartial, that they would submit to 3 jurisdiction in Ecuador, and that they 4 would pay a judgment if it was 5 entered, subject to reserving their 6 rights under the New York recognition 7 Act. 8 The first thing they did when 9 they went to Ecuador was to contest 10 jurisdiction. 11 of litigation in Ecuador, the 12 Ecuadorian court finally rendered a 13 judgment which is not final, which is 14 on appeal de novo, but in that one 15 hundred eighty-seven-page opinion, it 16 found Chevron liable for contaminating 17 a Rhode Island-sized piece of the 18 Ecuadorian rainforest and awarded 19 damages of approximately $18 billion. 20 After nine more years Before the Ecuadorian judgment 21 was entered, Chevron, who has eschewed 22 any activity in the Southern District 23 of New York, rushes back to the 24 Southern District of New York of 25 course, I suggest, after sampling *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 22 1 *** UNCERTIFIED ROUGH DRAFT *** 2 sixteen other federal courts to find a 3 judge that looked most favorable to 4 them. 5 case doctrine, managed to usher the 6 case to the very judge that they 7 wanted who we've already argued showed 8 predisposition in their favor. 9 judge then enters a temporary They then, using the related That 10 restraining order, a full scope 11 antiforeign suit injunction, before 12 anything is there to enjoin in 13 Ecuador. 14 HON. WESLEY: Mr. Tyrell, can you 15 tell me the status of the Ecuadorian 16 judgment now? 17 MR. TYRELL: It is on de novo 18 appeal, which is intermediate appeal 19 in Ecuador. Both sides have 20 cross-appealed. 21 stipulated that the judgment is not Both sides have 22 final until that cross-appeal is 23 resolved. 24 right to seek a further appeal to a 25 higher court in Ecuador. And even then Chevron has a *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 23 1 *** UNCERTIFIED ROUGH DRAFT *** 2 3 HON. WESLEY: Does the final appeal require posting of the bobbed? 4 5 MR. TYRELL: It is disputed. We think it should. 6 HON. WESLEY: Is it disputed as 7 to the period of time it will take the 8 Ecuadorian intermediate court to 9 resolve the matter? 10 11 MR. TYRELL: It isn't disputed, but no one knows. 12 HON. POOLER: At what stage could 13 collection of the judgment be 14 initiated? 15 MR. TYRELL: The judgment cannot 16 be enforced until the final 17 disposition of the Ecuadorian 18 intermediate court and a decision by 19 Chevron not to appeal further or, if a 20 bond is required, not to post the 21 bond. 22 required and they then appeal. 23 until -- I forget what the name of the 24 court is but it's equivalent to their 25 Supreme Court -- until their Supreme If it posts a bond, it's Not *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 24 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Court decides it so it should be. 3 HON. WESLEY: After they say that 4 the intermediate court issues a 5 decision, what is the maximum amount 6 of period of time that Chevron, by 7 considering or seeking additional 8 appeals, prior to an actual appeal 9 beginning in the highest court, what 10 is the maximum period of time they 11 could accomplish? 12 MR. TYRELL: I'm not sure but I 13 believe it's a minimum of thirty days. 14 We can certainly find that out and 15 submit it to your Honor. 16 HON. LYNCH: Just so it's clear, 17 I take it what you're saying is if the 18 Ecuadorian intermediate court affirms 19 this judgment which could happen 20 tomorrow or it could happen a year 21 from now since at least in this 22 country appellate courts are not under 23 any deadline, perhaps unfortunately, 24 for litigants with respect to issuing 25 their opinions. I take it you're *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 25 1 *** UNCERTIFIED ROUGH DRAFT *** 2 saying that's true from Ecuador as 3 well, so we don't know when a judgment 4 might come, we don't know what that 5 judgment might be, and if that 6 judgment is adverse to Chevron, then 7 there would be some further 8 disputation as to whether a bond would 9 be required to appeal to the Supreme 10 Court. 11 possibly favorably to Chevron. 12 either way with if posting a bond is 13 required or without if not required, 14 they would then have an appeal to the 15 Supreme Court but we don't know how 16 long that would take. 17 That issue would be resolved And And your position to this court 18 today is that if all those steps are 19 taken, this judgment would not be 20 appealable -- would not be enforceable 21 until the Supreme Court has ruled; 22 that's what you're telling us? 23 MR. TYRELL: That's correct, your 24 Honor. 25 clients, in connection with the de In fact, I should add my *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 26 1 *** UNCERTIFIED ROUGH DRAFT *** 2 novo appeal in Ecuador, put in a 3 declaration that they will never seek 4 to enforce this judgment in New York 5 and put in a complementary declaration 6 before Judge Kaplan. 7 So your question leads me to my 8 argument. 9 controversy here. There's no actual case or There is nothing so 10 fixed in form that this court or the 11 district court can seize upon it. 12 And I'd like to turn, if I can, 13 to both of my intertwined arguments 14 which first has to do with comity in 15 China Trade and intertwined with it no 16 case or controversy. 17 The salient case here is of 18 course China Trade. 19 this circuit is very vile. The standard in 20 sparingly with great restraint before 21 any antiforeign suit injunction is 22 entered. 23 the standard set here in 1987 was 24 reaffirmed by the Supreme Court as 25 recently as June 16 in Smith versus Used I suggest to the court that *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 27 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Bayer, which was an anti-injunction in 3 that case, but the same principles 4 applied. 5 decision rendered by this court in 6 1991, it said those principles 7 applied, those comity principles a 8 fortiori in the international context. 9 In fact, in the Chesney HON. LYNCH: Do you agree, Mr. 10 Tyrell, that this is just a China 11 Trade kind of case, that that's -- 12 that this is the sort of simple case 13 where the China Trade standard 14 occurred just like a lot of other 15 cases where Plaintiff sues Defendant 16 in New York and Defendant sues 17 Plaintiff or may sue Plaintiff 18 somewhere else? 19 your position would be that this is it 20 even more dramatic than the situation 21 in China Trade. 22 I would have thought MR. TYRELL: Absolutely, which is 23 why I said I didn't know whether to 24 argue my second point first or my 25 first point second. But in reality, *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 28 1 *** UNCERTIFIED ROUGH DRAFT *** 2 this is a case where there is 3 absolutely no case or controversy. 4 you wrote, Judge Lynch, in the 5 Republic of Ecuador opinion, no one 6 knows what's going to happen in 7 Ecuador. 8 believe under Dow Jones, under all the As In those circumstances, we 9 principles articulated by this court 10 there is no case or controversy now. 11 That goes to this court's subject 12 matter jurisdiction if you agree with 13 us and the right result, the right 14 result would be to send this back 15 hopefully not to Judge Kaplan but to a 16 different judge or to the wheel with 17 instructions to dismiss this case. 18 This isn't a simple China Trade 19 decision. 20 issue that can now be resolved by the There is no firm fixed 21 district court. 22 it can never be resolved by a district 23 court in New York because my clients 24 and all of the Ecuadorian plaintiffs 25 have eschewed ever seeking enforcement And I suggest to you *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 29 1 2 *** UNCERTIFIED ROUGH DRAFT *** in New York. 3 When you look at what the 4 underlying premise is for the 5 substantive law ruling that Chevron 6 seeks, it's the New York Recognition 7 Act. 8 aside from the fact that it says on The New York Recognition Act, 9 its face will not apply unless the 10 judgment is final and enforceable 11 where rendered, and both sides have 12 stipulated that that isn't the case, 13 our clients have said we're not coming 14 to New York when that is met. 15 never going to come to New York. 16 We're HON. LYNCH: I think your client 17 said that after this preliminary 18 injunction action got going. 19 MR. TYRELL: There's no doubt 20 about that, your Honor, there's no 21 doubt about that. 22 But nonetheless -- HON. LYNCH: Well, at the time 23 Chevron sought its preliminary 24 injunction and whatever the merits of 25 entry or other arguments, they had no *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 30 1 *** UNCERTIFIED ROUGH DRAFT *** 2 way of knowing that your clients would 3 never come to New York if indeed your 4 clients at that point had already 5 decided that they would never come to 6 New York; right? 7 MR. TYRELL: What they did know 8 is that there was no ability with a 9 final enforceable judgment to invoke 10 at that time the New York Recognition 11 Act. 12 an advisory opinion and Judge Kaplan 13 permitted it. This was a preemptory strike for 14 HON. WESLEY: Excuse me a second, 15 but I hoping the chair will indulge us 16 just bit. 17 The fact that they choose New 18 York doesn't have to necessarily be 19 tied to whether you decide to come to 20 New York to enforce the judgment 21 because if you're here, present in an 22 in personam sense, they can go 23 wherever they wish because if they can 24 get a judgment precluding you from 25 enforcing a judgment based on in *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 31 1 *** UNCERTIFIED ROUGH DRAFT *** 2 personam grounds, they can pursue that 3 anywhere that you are, in the 4 jurisdictional sense. 5 assurance is not necessarily a 6 jurisdictional deterrent; is it? 7 8 9 So that MR. TYRELL: Let me try to answer your question. HON. WESLEY: I mean, there may 10 be serious questions as to whether the 11 LAP plaintiffs in the Ecuadorian 12 action are here because of what 13 Donziger does. 14 MR. TYRELL: That's what I was 15 going to respond. 16 they're here under 301 or whatever. We don't think 17 But the other point is not right, I 18 don't think, your Honor. 19 agree with that. 20 would stand the law on its head for 21 the loser in a judgment to be able to 22 go anywhere in the world and select 23 the forum of its choice to argue for 24 nonenforcement. 25 law predicate, even if there were We don't We think that it The only substantive *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 32 1 *** UNCERTIFIED ROUGH DRAFT *** 2 personal jurisdiction over my clients, 3 the only substantive law predicate 4 that lets them come to New York is 5 judgment enforcement. 6 already concluded the case is all 7 about Ecuador. 8 9 This court has HON. WESLEY: Let me make it easier. 10 If they lived here, if they 11 lived here, wouldn't this be an 12 appropriate forum to seek that 13 determination? 14 MR. TYRELL: I don't believe so. 15 Because the party who wins the 16 judgment can enforce it where they 17 wish. 18 HON. WESLEY: Well, no, I 19 understand that. 20 personal jurisdiction over them, then 21 you have the ability to preclude them 22 from doing something anywhere. 23 But if you have MR. TYRELL: You may have the 24 power but you then have to have a 25 substantive law right and the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 33 1 *** UNCERTIFIED ROUGH DRAFT *** 2 substantive law right here is 3 derivative of the -- is based on the 4 Recognition Act and the Recognition 5 Act can't apply. 6 substantive law basis could you have 7 to come to just come to New York and 8 go after my client but the Recognition 9 Act? 10 11 12 What other HON. POOLER: Which was preserved. HON. WESLEY: I appreciate your 13 fervor, but the judgment is a piece of 14 property and they own it, your 15 plaintiffs own it. 16 wherever they are, that shows an 17 action is here and you have control 18 over them because they're the only 19 people who can enforce. 20 If they're here, MR. TYRELL: Just if I may, your 21 Honor, I don't want to take any 22 additional time. 23 your point do they own it, one of the 24 points I was going to get to if time 25 permitted under the China Trade But in response to *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 34 1 *** UNCERTIFIED ROUGH DRAFT *** 2 analysis is they don't own it. 3 court in Ecuador has decided that a The 4 commercial trust to be established 5 under the control of the court in 6 Ecuador will own the judgment, not my 7 clients. 8 real party in interest. 9 part is even that can change. My clients are no longer the But the real Because 10 the de novo intermediate appellate 11 court can make somebody else the real 12 party in interest. 13 real party in interest in New York now 14 that is firm and fixed as required by 15 the first prong of China Trade. 16 17 So there is no HON. WESLEY: Does Judge Kaplan's order deal with that trust issue? 18 MR. TYRELL: He says yes, that 19 it's one and the same thing because 20 the beneficiaries of the trust are the 21 forty-seven LAPs and the front, the 22 Amazonian Front. 23 the judgment itself, it says the Well, if you read 24 beneficiary is all the residents of 25 the area affected by Chevron's *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 35 1 *** UNCERTIFIED ROUGH DRAFT *** 2 conduct. 3 second piece, it can't be dispositive. 4 And if I could just -- the HON. POOLER: So you argue on the 5 first ground of China Trade that it's 6 not identity of the parties? 7 MR. TYRELL: We do. But we even 8 argue more persuasively on the second 9 grounds, and you're indulging me with 10 time and I do not want to follow the 11 prior examples so the moment you say 12 stop -- when I clerked for Judge Garth 13 on the Third Circuit, he said the most 14 important thing is to answer the 15 court's questions and even more 16 important to stop. 17 stop, I guarantee I will. 18 19 HON. POOLER: Well your time has expired. 20 You're reserving time for -- 21 22 MR. TYRELL: Yes, I reserve three minutes. 23 24 So when you say Would you wish an answer to your second point or not? 25 HON. POOLER: Yes, just answer *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 36 1 2 *** UNCERTIFIED ROUGH DRAFT *** that. 3 MR. TYRELL: Just briefly, it 4 can't be dispositive because the law 5 says that every jurisdiction, every 6 foreign country has the right to apply 7 its own standards to judgment 8 enforcement. 9 decides or whoever decides it here in So whatever Judge Kaplan 10 New York can only govern New York 11 enforcement standards can never be 12 dispositive around the world if that 13 judgment is taken to -- 14 15 HON. POOLER: But what I asked you I had more question on -- 16 MR. TYRELL: Thank you, your 17 Honor. 18 entitled to respond to that, too. I'm going to consider myself 19 HON. POOLER: He said the 20 recognition under New York was 21 preserved in the original forum non 22 conveniens decision? 23 MR. TYRELL: No, in the original 24 forum non conveniens decision, they 25 unilaterally said we'll make all these *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 37 1 *** UNCERTIFIED ROUGH DRAFT *** 2 representations to let it go to 3 Ecuador but we're reserving this 4 right. My clients never agreed to 5 6 anything about that. Do they have a right to try to 7 bring the case into New York? 8 have the right to try. They I suggest they 9 can because of the argument I made. 10 Judge Lynch held that they had a try 11 to try to do something with the BIT 12 arbitration. 13 14 HON. LYNCH: It wasn't me, it was a unanimous panel. 15 MR. TYRELL: Judge Pooler 16 decided, you decided, and your 17 colleague decided. 18 19 20 21 22 23 HON. POOLER: Thank you, counsel. MR. TYRELL: Thank you very much, your Honor. HON. POOLER: We'll hear from your co-counsel. HON. LYNCH: You know, Mr. 24 Tyrell, I used to be able to decide 25 things in my days in the district *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 38 1 *** UNCERTIFIED ROUGH DRAFT *** 2 court but, as the saying goes, now I'm 3 only one-third of a judge. 4 case, it was one-third of a judge that 5 decided this. So in this 6 MR. TYRELL: Your Honor, if 7 you'll indulge me, when I clerked for 8 Judge Garth, it was his first year on 9 the circuit and he had moved up from 10 the district court. 11 -- he apologized. 12 for the district court and he said my 13 experience on the circuit would be 14 much less exciting. 15 He told me he was He said he hired me MR. KEKER: Good morning, your 16 Honors. 17 Mr. Donziger. 18 view, has been convicted by Judge 19 Kaplan in the court below already 20 without any meaningful opportunity to 21 fight back, to talk back, to present 22 any evidence. 23 three minutes, I'm not going to talk 24 about that today. 25 I'm John Keker. I represent Mr. Donziger, in our But because I have There is a silver bullet in this *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 39 1 *** UNCERTIFIED ROUGH DRAFT *** 2 appeal. You've been talking about it 3 already. The silver bullet is that 4 there is no subject matter 5 jurisdiction because there's not an 6 actual controversy before the court 7 first on the preliminary injunction 8 when the preliminary injunction was 9 issued, only on the Declaratory 10 Judgment Act. 11 equally important to us, there won't And then second and 12 be any subject matter jurisdiction in 13 this trial that Judge Kaplan intends 14 to have in November where he's going 15 to try the Ecuadorian court system 16 without ever looking, having a 17 judgment to evaluate. 18 HON. POOLER: Did he set that 19 November day with reference to what 20 the Ecuadorian courts will do? 21 MR. KEKER: Yes, ma'am. 22 Kaplan said he was quite sure the Judge 23 appeal would be immediately affirmed, 24 further showing his attitude, and 25 therefore he was going to set as *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 40 1 *** UNCERTIFIED ROUGH DRAFT *** 2 speedy a trial as he could, set it in 3 November, promptly went through 4 various machinations to cut Mr. 5 Donziger out of the trial, did it in 6 such a way that Mr. Donziger, because 7 he left him enough intervention rights 8 so that this court has said it's not 9 an appealable order, we have to wait 10 until after Judge -- until after the 11 final decision. 12 So during a period where the 13 LAPs, the Lago Agrio plaintiffs were 14 doing no discovery, not getting any 15 experts, now they've begun in late 16 July, after all this period the case 17 has simply been undefended and it's 18 about to be a show trial where Chevron 19 gets to put on its evidence with the 20 Lago Agrio plaintiffs, if you'll 21 excuse me, basically tethered to a 22 stake like a goat during that trial. 23 HON. POOLER: Is there any 24 indication that should the 25 intermediate court not issue a *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 41 1 *** UNCERTIFIED ROUGH DRAFT *** 2 decision before the November trial 3 that Judge Kaplan would adjourn the 4 trial? 5 MR. KEKER: Totally the opposite, 6 your Honor. 7 saying please let us intervene now We kept going back and 8 that, for example, Chevron filed 9 twenty-nine experts which they 10 eventually cut down to nineteen 11 experts, making plain that the trial 12 is going to be a do-over of this 13 environmental dispute that's going on 14 in Ecuador, a complete do-over; 15 scientific evidence, whether there was 16 pollution, the whole thing. 17 all right, let us in. 18 something about whether or not 19 Donziger is guilty of fraud as you've 20 alleged, please let us participate. 21 No way. 22 this. 23 motions saying there's a difference 24 between extrinsic and intrinsic fraud. 25 You can't try things that are being We said You're deciding We're going to go ahead with The Lago Agrio plaintiffs filed *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 42 1 *** UNCERTIFIED ROUGH DRAFT *** 2 tried in Ecuador and were tried by the 3 court. 4 there's no distinction says Judge 5 Kaplan, we're going ahead with the 6 whole thing. 7 That's intrinsic fraud. No, But my point is, with respect to 8 what's before you now, which is the 9 preliminary injunction decision, if 10 there is no -- on this record, if 11 there is no actual controversy, it's 12 very important that that be said now 13 because it will make plain to whatever 14 district court judge handles this case 15 that it cannot be tried, there's no 16 jurisdiction to try it under this 17 severed case. 18 the RICO. 19 the judgment in Ecuador is enforceable 20 anywhere in the world. 21 22 HON. POOLER: Is that the count nine? 23 MR. KEKER: That's count nine. 24 25 Because they've severed The dispute now is whether And what Judge Kaplan suggested to Chevron is why don't we sever that, *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 43 1 *** UNCERTIFIED ROUGH DRAFT *** 2 cut Donziger out of that, and then 3 we'll just try that quickly and I'll 4 make a decision about essentially 5 whether or not Ecuador stinks, if you 6 permit me the colloquialism. 7 What Judge Wesley was asking 8 about are questions that we believe go 9 to what might be considered after you 10 actually have a judgment in Ecuador 11 and then questions about can you use 12 the recognition statute defensively 13 under the Declaratory Relief Act would 14 become important, was there estoppel 15 because there was promises. 16 would become important. 17 that happens and there's no guarantee, 18 nobody knows what's going to happen in 19 Ecuador, I wanted to emphasize one 20 other thing. 21 novo review in Ecuador but both 22 parties are throwing tremendous amount 23 of new information into the record, 24 both arguments and facts. 25 -- the diatribe that you just heard That But until That not only is it de Everything *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 44 1 *** UNCERTIFIED ROUGH DRAFT *** 2 from Mr. Mastro is being presented to 3 the Ecuadorian court. 4 some point they will make a decision. 5 Either Chevron will win or they'll say 6 let's do the case again down in 7 Ecuador or they will say we completely 8 affirm or they will say we partially 9 -- who knows what they're going to 10 say? 11 will look like? Presumably at And who knows what that decision They may say we've 12 ignored all of this evidence and 13 therefore make the following -- we 14 just don't know. 15 purely hypothetical, as this court 16 collectively has said, in the Republic 17 of Ecuador case. 18 It's completely, HON. LYNCH: Mr. Keker, one other 19 question. 20 of your argument to the idea that this 21 is premature and that the judgment is 22 not enforceable. 23 wanted to clarify. 24 25 You said -- you used most There's something I Let's suppose it does become enforceable. Some day, I take it, it *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 45 1 *** UNCERTIFIED ROUGH DRAFT *** 2 is the position of your -- I hope of 3 your side of the table that it will be 4 affirmed and it will become 5 enforceable. 6 Are you conceding that at that 7 point it would be appropriate and 8 permissible for Chevron to ask a New 9 York court to apply the New York 10 recognition of foreign judgments act 11 offensively even if the underlying 12 plaintiffs don't come to New York as 13 opposed to defensively to resist 14 enforcement of the judgment in New 15 York? 16 17 MR. KEKER: I said defensively. I got it mixed up. 18 Absolutely not. At that point 19 that decision would have to be made 20 and those arguments would have to be 21 made. 22 Recognition Act can only be used or 23 the recognition of judgment act where 24 you claim fraud, you claim it's an 25 impartial tribunal can only be used Our position is the New York *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 46 1 *** UNCERTIFIED ROUGH DRAFT *** 2 defensively. 3 case here, then you can make those 4 arguments. 5 the case here, you can't, by forum 6 shopping, come to New York, say 7 there's a danger that this is going to 8 be enforced in Kazakhstan and 9 therefore I want a New York 10 let me overturn it under the 11 recognition statute when there's 12 absolutely no reason for the court to 13 take that on. 14 If somebody brings the If somebody doesn't bring court to HON. POOLER: The court had a 15 memo -- I know you've gone beyond your 16 time -- but the court had a memo that 17 talked about an enforcement strategy 18 that included countries all over the 19 world and the court relied on that 20 memo; didn't it? 21 MR. KEKER: The court -- you can 22 use relied or it certainly cited and 23 used it as its argument for why it 24 made sense. 25 HON. POOLER: Correct. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 47 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. KEKER: What that memo said 3 is we could try -- it was a think 4 piece which you, yourself, identified 5 in another hearing as kind of a think 6 piece and there's probably one like it 7 about resisting enforcement. 8 basically one of the things it 9 mentioned that the court picked up on 10 is prejudgment attachment. 11 But magical thinking. That is 12 I mean, first of all, there 13 hasn't been any prejudgment attachment 14 in all the time that we're there. 15 Second, think of it. You go up 16 and you slap a writ on a pipeline in 17 Kazakhstan and you say a court in 18 Ecuador may some day have a final 19 enforceable judgment and therefore, 20 because this $200 billion revenue each 21 year corporation might not be able to 22 pay, we'd like to attach this 23 pipeline. 24 remote, it's kind of silly, and I 25 called it magical thinking. I mean, it is -- it's *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 48 1 *** UNCERTIFIED ROUGH DRAFT *** 2 In our brief, that's our 3 argument about why you can't create an 4 actual controversy out of that kind of 5 magical thinking. 6 controversy has to be more 7 substantial, has to be imminent, has 8 to be kind of real. 9 some lawyer sitting in an office An actual This idea that 10 thought maybe we should think about 11 that in a privileged memo which never 12 should have seen the light of day if 13 it weren't for various rulings, I 14 mean, it's just -- we don't think that 15 makes an actual controversy. 16 Judge Kaplan used it to create an 17 actual controversy. 18 And yes, HON. POOLER: Thank you. 19 MR. KEKER: He gave one paragraph 20 to questions whether or not there was 21 an actual controversy here. 22 23 HON. POOLER: Thank you, Mr. Keker. 24 MR. KEKER: Thank you, ma'am. 25 HON. POOLER: Mr. Mastro, both *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 49 1 *** UNCERTIFIED ROUGH DRAFT *** 2 opponents went overtime so I'll be 3 flexible with you. 4 MR. MASTRO: I appreciate it, 5 your Honor, and I will also be 6 cognizant of the time. 7 Mr. Keker just said that Judge 8 Kaplan shouldn't have credited that 9 Invictus memo. He shouldn't have 10 credited all these other statements 11 that come out of the mouths of the 12 plaintiffs' agents themselves, Mr. 13 Donziger and the other lawyers. 14 credited largely undisputed record 15 evidence that comes right out of the 16 mouths of the plaintiffs' counsel, the 17 plaintiffs' agents, the plaintiffs' 18 attorneys. 19 He HON. LYNCH: Wouldn't any 20 plaintiff who had a big judgment 21 against a company with worldwide 22 operations undertake planning as to 23 where it would be advantageous for 24 them to go and enforce the judgment 25 and wouldn't it be a part of that *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 50 1 *** UNCERTIFIED ROUGH DRAFT *** 2 thinking for anybody as to whether a 3 settlement would be more likely if 4 they found the best place among any 5 places? 6 MR. MASTRO: Your Honor, prudent 7 planning on where to enforce is one 8 thing. 9 what that memo screams out is not What Judge Kaplan found and 10 about an enforcement strategy. 11 about, their words, using the 12 political connections of the Patton 13 Boggs law firm to find the, quote the 14 path of lease resistance in countries 15 that will not have a, quote, jaundiced 16 eye and won't care whether the 17 judgment was rendered in circumstances 18 that raised substantial doubt about 19 the integrity of the rendering court, 20 obtain, their words, ex parte 21 prejudgment attachments to disrupt 22 Chevron's operations worldwide, 23 pressure it into settlement. 24 25 It is HON. WESLEY: Well, you know, way back when I was practicing law in *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 51 1 *** UNCERTIFIED ROUGH DRAFT *** 2 small rural communities, I had a 3 fellow that didn't want to pay child 4 support and I found him on Christmas 5 Eve and I had him thrown in jail. 6 changed his mind about child support. 7 Sometimes folks have a way of using 8 restraining orders and other things to 9 produce reasonableness. 10 He So I mean, seriously, the 11 problem I have here is that presume 12 that this was a judgment by a Canadian 13 trial court and it's a $12 billion 14 judgment against Chevron in a Canadian 15 trial court and you have reason to 16 believe that the judge was in cahoots 17 with the plaintiff's lawyers. 18 You mean to tell me that because 19 the underlying -- and that they were 20 ready and willing and able to go after 21 this and enforce this against you in 22 Kazakhstan because Kazakhstan 23 regularly recognizes Canadian 24 judgments; we won't worry about other 25 jurisdictions. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 52 1 *** UNCERTIFIED ROUGH DRAFT *** 2 You mean to tell me that a judge 3 in the Southern District before even 4 an intermediate appeal had been 5 completed would have the appropriate 6 jurisdiction to, under China Trade or 7 any other theory, to enjoin those 8 plaintiffs from pursuing that? 9 MR. MASTRO: Yes, your Honor, 10 under the circumstances presented 11 here. 12 absolutely right. 13 that New York is not only an 14 appropriate jurisdiction for this 15 action, it's the most appropriate. And I think your Honor had it There's no question 16 HON. WESLEY: Don't you have to 17 separate the banality of the conduct 18 from the legitimacy of the process? 19 Don't we have some sense of comity to 20 the legitimacy of the process? 21 just to say to the people of Ecuador 22 you're all corrupt and your process 23 doesn't matter to the United States or 24 a United States federal judge is not 25 going to hear anything about the Are we *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 53 1 *** UNCERTIFIED ROUGH DRAFT *** 2 legitimacy of your process, a process, 3 by the way, which you invoked? 4 MR. MASTRO: Your Honor, 5 actually, Judge Kaplan hasn't said 6 that. 7 8 9 10 He's issued a -HON. WESLEY: Well, he's issued a restraining order. What's the premise of it? MR. MASTRO: So that he can have 11 a trial to determine whether this 12 judgment was procured by fraud, to 13 determine whether this judgment 14 resulted from a system that failed to 15 enforce due process and impartial 16 tribunal. 17 injunction. 18 It's a temporary status quo HON. WESLEY: Doesn't it seem 19 like you're spending an awful lot of 20 money to finish a trial in November 21 where on the last day of trial the 22 Ecuadorian intermediate court vacates 23 the judgment, finds it's procured by 24 fraud, and absolves Chevron of all 25 liability? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 54 1 *** UNCERTIFIED ROUGH DRAFT *** 2 3 4 MR. MASTRO: If that happens, your Honor -HON. WESLEY: I wonder what the 5 shareholders of Chevron are interested 6 in with regard to the money that's 7 being spent on behalf of Defendants 8 pursuing this. 9 MR. MASTRO: Your Honor, here's 10 why a trial is so necessary and 11 appropriate. 12 question of what's the appeal in 13 Ecuador. 14 been issued for $18.2 billion that is 15 now on appeal. 16 evidence was undisputed, undisputed 17 that these plaintiffs could take that 18 judgment right now. 19 Donziger and Fajardo said they don't 20 plan to wait for the appeal, they plan 21 to enforce now. 22 It's not simply a There is a judgment that has But the record Their lawyers HON. LYNCH: They've already 23 stipulated that they're not going to 24 do that. 25 that the judgment is not enforceable. And it's clear under law *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 55 1 2 *** UNCERTIFIED ROUGH DRAFT *** MR. MASTRO: They have most 3 definitely not, your Honor. 4 is, under treaty with Latin American And it 5 countries like Colombia, Argentina, 6 and Venezuela right now something that 7 these plaintiffs could take to those 8 countries and seize Chevron's 9 substantial assets in those countries. 10 There is a real and immediate danger 11 right now, and they never stipulated. 12 13 14 HON. LYNCH: This is under Venezuelan law? MR. MASTRO: No, under 15 international Latin American treaty 16 which is undisputed, it's in the 17 Coronel affidavit. 18 give your Honors the exact cite. 19 exact cite to that, your Honors, is on 20 pages 6167 through 6170 of part 21 twenty-two of the appendix. 22 noted Ecuadorian law expert, 23 undisputed by them, and Judge Kaplan 24 credited there's a Latin American 25 treaty to give them the right to ex I'll be happy to The Coronel, *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 56 1 *** UNCERTIFIED ROUGH DRAFT *** 2 parte freeze assets right now in those 3 countries. 4 danger right now. It's a real and immediate 5 HON. LYNCH: To take preliminary 6 steps to enforce an order that is not 7 enforceable under Ecuadorian law? 8 9 MR. MASTRO: Correct, correct, and that's absolutely the state of law 10 in Ecuador and it's undisputed below 11 that they could be doing that right 12 now and the injunction is the only 13 thing that has held them off. 14 HON. WESLEY: But you then said, 15 in response to Judge Lynch's question, 16 that not all of them have so 17 stipulated. 18 MR. MASTRO: Absolutely. 19 20 HON. WESLEY: Is that the LAP, the LAP plaintiffs? 21 MR. MASTRO: Absolutely, before 22 this court and Judge Kaplan repeatedly 23 asked why don't you all stipulate, 24 because Donziger can't do it alone, 25 stipulate to forbear, that you won't *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 57 1 *** UNCERTIFIED ROUGH DRAFT *** 2 try to get the judgment or to enforce 3 it. 4 this is their plan and that's why the 5 Invictus memo is so disturbing. 6 They refused. That's because HON. WESLEY: Well, what are you 7 going to do if Mr. Tyrell stands up in 8 open federal court and states they'll 9 stipulate that they'll not take any 10 enforcement actions anywhere in the 11 world pending the outcome of the 12 intermediate court? 13 then? 14 What do you do MR. MASTRO: Well, ask him if 15 he'll do that. 16 of the plaintiffs -- He's only here for two 17 HON. WESLEY: But there are only 18 two of the plaintiffs in front of us; 19 aren't there? 20 MR. MASTRO: Your Honor, the 21 others all defaulted so there's 22 default judgments against them. 23 were all sued in our action. 24 25 They But your Honor, Mr. Tyrell, ask him if he'll do that. Because if he *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 58 1 *** UNCERTIFIED ROUGH DRAFT *** 2 really represents all the plaintiffs 3 and they will come into court and 4 stipulate, that would be different. 5 But I have to say this, I have to say 6 this, they've consistently refused to 7 this court and others. 8 9 10 11 12 13 And let me come to a few other points that I think are extremely important because -HON. LYNCH: Let me ask you a question first. About the New York judgment act, 14 do you have any precedent of the New 15 York court or the federal court 16 applying New York law utilizing the 17 New York judgment statute offensively 18 as opposed to defensively to rule that 19 an enforcement -- that the act, forget 20 all the jurisdictional questions and 21 everything else and whether it's right 22 and everything else, that the New York 23 law authorizes an action to prohibit 24 the enforcement of a judgment rather 25 than simply being a direction to the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 59 1 *** UNCERTIFIED ROUGH DRAFT *** 2 New York courts as to when they may 3 and may not enforce a judgment when 4 someone asks them to? 5 case that utilizes the statue that 6 way? 7 8 Do you have any MR. MASTRO: Your Honor, we have not cited such a case. 9 HON. LYNCH: You know one but you 10 haven't cited it? 11 summer associate research this and 12 that person has not come up with such 13 a case; right? 14 such case; right? 15 wrong? 16 You have had some Because there is no Am I right or MR. MASTRO: You're correct, but 17 that's because of the unique 18 circumstances of this case. 19 HON. LYNCH: Now, was there 20 anything in the statute that suggests 21 that it creates an affirmative cause 22 of action, is there any language there 23 that says anything other than these 24 are the circumstances in which a New 25 York court may and may not enforce a *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 60 1 *** UNCERTIFIED ROUGH DRAFT *** 2 foreign judgment when someone asks it 3 to? 4 such a cause of action and, if so, 5 could you point me to it? 6 Is there any language suggesting MR. MASTRO: Your Honor, the 7 statute speaks of the defenses. 8 this is an action brought under the But 9 Declaratory Judgment Act as a 10 declaratory judgment to seek a 11 resolution of that question which is 12 ripe and ready for adjudication now. 13 And as your Honor said -- 14 HON. LYNCH: If the shoe were on 15 the other foot, the plaintiff called 16 in a not-yet-enforceable foreign 17 judgment -- and the statute refers to 18 a judgment that is enforceable where 19 made, that's what starts it, because 20 after all, this is a statute about the 21 recognition, not about 22 non-recognition, because when would we 23 recognize it, and the answer is it has 24 to be at square one, it has to be 25 enforceable where made. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 61 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Are you suggesting to me that a 3 plaintiff holding a judgment that was 4 not enforceable where made could evade 5 that requirement of the statute by 6 coming in and saying, you know, the 7 defendants are saying that this is not 8 going to be enforceable in New York, 9 we'd like a declaratory judgment; that 10 if and when we get an enforceable 11 judgment in this other country you 12 will enforce it? 13 York courts would entertain that kind 14 of action? 15 Do you think the New MR. MASTRO: Your Honor, I think 16 that there's a huge difference between 17 the plaintiffs' attempting to do that 18 and Chevron, in defending itself 19 against this judgment where it faces 20 an immediate jeopardy of them being 21 able to take it into Latin American 22 countries and freezing assets in an ex 23 parte manner, being able to get the 24 protection -- 25 HON. LYNCH: So you're not *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 62 1 *** UNCERTIFIED ROUGH DRAFT *** 2 concerned, you're not concerned about 3 the enforcement of the judgment in New 4 York at all, you're concerned about 5 the enforcement of the judgment in any 6 -- pick one out of a hat -- Venezuela? 7 MR. MASTRO: I am concerned about 8 their enforcement of the judgment 9 which seems to us and Judge Kaplan 10 found based on his review of an ample 11 record of how much the government has 12 been influencing on this case the 13 courts that the appeal process is 14 likely not to be any different than 15 the trial process. 16 the fact is what we have here is 17 Chevron going to the only jurisdiction 18 that is sure to apply the New York 19 recognition statute. 20 But your Honor, HON. LYNCH: Of course. New York 21 is the only jurisdiction that is going 22 to apply New York law to decide 23 whether a judgment is enforceable in 24 New York. 25 That makes sense. Again, if the shoe were on the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 63 1 *** UNCERTIFIED ROUGH DRAFT *** 2 other foot, that is speaking of 3 international comity, how do you think 4 the New York courts would react if a 5 Venezuelan court attempted to enjoin a 6 holder of a judgment from Russia and 7 in New York by enjoining the 8 plaintiffs and saying under Venezuelan 9 law, this is not enforceable so do not 10 go into New York and attempt to 11 enforce a judgment which might be 12 enforceable under New York law because 13 we find it not enforceable under 14 Venezuelan law? 15 any chance that the New York courts 16 would respect such a judgment or 17 should respect such a judgment? 18 Do you think there's MR. MASTRO: No, your Honor, but 19 what makes this case unique, as your 20 Honor knows and as you know, Judge 21 Pooler, there were commitments made. 22 It's not true what Mr. Tyrell told 23 you. 24 the BIT panel and what Judge Sand was 25 told by the LAPs counsel was that What you were actually told on *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 64 1 *** UNCERTIFIED ROUGH DRAFT *** 2 there was, quote, an express agreement 3 to adjudicate these claims in Ecuador 4 subject to only 5304 and that 5304 -- 5 that's the New York recognition 6 statute -- gives them, Chevron, the 7 forum and a venue post judgment to 8 challenge any judgment. 9 A3756. 10 11 That's page HON. POOLER: That's in Texaco. Didn't you just say that you 12 would move to be not judicially 13 estopped from declaring that you were 14 bound by Texaco's agreements? 15 MR. MASTRO: Your Honor, you all 16 defined in your opinion on the BIT 17 stay what rights were reserved to 18 Chevron and you told us that we have 19 reserved the right -- 20 HON. POOLER: Excuse me, didn't 21 Judge Kaplan recently conclude that 22 you were not judicially estopped from 23 denying the concessions made by 24 Texaco? 25 MR. MASTRO: Judge Kaplan ruled *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 65 1 *** UNCERTIFIED ROUGH DRAFT *** 2 based on the evidence before him in 3 the context of motion practice that it 4 remained, as far as he was concerned, 5 a matter that Chevron and Texaco had 6 separate corporate forums. 7 HON. POOLER: And if it was 8 Texaco that reserved the 5304; right? 9 So you want it both ways yet again? 10 MR. MASTRO: I don't, your Honor, 11 I want it the way you all directed the 12 parties which was you all said that 13 having reserved our rights under the 14 New York recognition statue, Chevron 15 was free to assert them whenever and 16 wherever. 17 And if there was no -- HON. LYNCH: But isn't there a 18 difference between your having the 19 right to resist enforcement of the 20 judgment which otherwise you said you 21 would pay if someone comes to New York 22 and tries to enforce it, you still 23 have the right to resist, you reserve 24 that right? 25 saying that you have the right to have Is that the same thing as *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 66 1 *** UNCERTIFIED ROUGH DRAFT *** 2 a New York court settle for Australia, 3 for Kazakhstan, for Denmark, for 4 Canada, for Chile, whether under -- 5 because the law is not -- the judgment 6 is not enforceable under New York law, 7 assuming that's true, that neither is 8 anyone to try to enforce the judgment 9 in any country where it might be 10 enforceable? 11 that that was either the agreement, if 12 you want to call it that, that the 13 parties struck when you were trying to 14 get the case to Ecuador or your 15 predecessors were or what this court 16 was referring to when that issue came 17 up in the completely different context 18 of whether a BIT arbitration was a 19 violation of that agreement? 20 Is there any indication MR. MASTRO: Your Honor, the 21 short answer to your question is that 22 yes, Chevron should be recognized to 23 have those rights because, because 24 Chevron has the right under the 25 Declaratory Judgment Act when there is *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 67 1 *** UNCERTIFIED ROUGH DRAFT *** 2 a ripe controversy as there is now 3 because that judgment, even if there's 4 still an intermediate appeal level -- 5 and that, by the way, will make it 6 final -- it can still be enforced in 7 other countries. 8 in other countries, those Latin So if it is enforced 9 American countries, it will, based on 10 the Invictus memo, it will be used to 11 pressure Chevron and disrupt its 12 operations worldwide, force it into 13 making payment, and therefore it will 14 moot out the proceedings in New York 15 to determine under the New York 16 recognition statute whether this 17 judgment passes muster. 18 Honors, that's the right that we 19 supposedly had reserved, that's the 20 right this court said we had reserved. 21 If will never get litigated if that 22 happens. 23 And your HON. LYNCH: Let's look back to 24 when that decision was made. 25 succeeded in getting the case You *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 68 1 *** UNCERTIFIED ROUGH DRAFT *** 2 transferred to Ecuador. 3 understand there's a dispute about 4 who's you in the context. 5 side of the table got the case sent to 6 Ecuador by promising that you would 7 pay the judgment except that you 8 reserved certain defenses. 9 10 I say you, I But your MR. MASTRO: Yes, your Honor. HON. LYNCH: And now you're 11 telling me that that means that even 12 though, as you just told me, this 13 judgment might be enforceable today in 14 Venezuela under Venezuelan law, the 15 fact that, if it is a fact, the 16 judgment would not be enforceable in 17 New York authorizes a New York court 18 to trump Venezuelan law along with 19 every other country in the world, 20 whatever it may be, by ordering the 21 plaintiffs not to seek to present the 22 judgment to the courts of sovereign 23 countries to see whether they will 24 enforce it or not? 25 MR. MASTRO: That's correct, your *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 69 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Honor. 3 correct? 4 because there was a reservation of 5 rights that Texaco, now Chevron, in 6 the BIT stay decision, reserved its 7 rights to challenge under the New York 8 recognition statute. 9 can challenge the judgment under the 10 New York recognition statue and they 11 can't get around that, this is 12 something that they said was, to this 13 court, an agreement, they said it was 14 our escape hatch that we could 15 challenge under the New York 16 recognition statute. 17 the right to come into court in New 18 York to make sure that a New York 19 court reviews the New York recognition 20 statute, what do we have -- 21 We're back where we started; We're back in New York The only way we If we don't have HON. LYNCH: But what if the New 22 York statute does not recognize a 23 cause of action to do that? 24 the New York statute only authorizes 25 the defense which you have reserved in What if *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 70 1 *** UNCERTIFIED ROUGH DRAFT *** 2 the event it should become relevant? 3 MR. MASTRO: But your Honor, 4 again, the New York recognize statute 5 makes plain that these are defenses to 6 enforcement of a judgment. 7 ripe controversy under the Declaratory 8 Judgment Act. 9 We have a HON. LYNCH: But even assuming 10 that you did, what gives you have the 11 right to a declaratory judgment under 12 New York law to anything beyond the 13 statement that this judgment is not 14 enforceable in New York under the New 15 York statute? 16 that. 17 first it is a ripe controversy, that 18 it is for declaratory judgment, and 19 the true answer under New York law is 20 that this judgment is not enforceable 21 in New York. 22 Assume you could get Assume that you can demonstrate MR. MASTRO: Yes, your Honor. 23 HON. LYNCH: What in the New York 24 law authorizes broader relief than 25 that? *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 71 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. MASTRO: Your Honor, the 3 federal court, in entertaining a ripe 4 declaratory judgment action, obviously 5 has the inherent authority right to 6 protect its jurisdiction, to present 7 vexatious bad faith litigation, and 8 most importantly to prevent a fraud 9 from being effected. 10 HON. LYNCH: What would be 11 vexatious to go to a country where the 12 judgment might be enforceable under 13 that country's law because the New 14 York court has decided that it's not 15 enforceable under New York law? 16 is that vexatious litigation rather 17 than just the right to go to a forum 18 where the law allows something that 19 happens not to be allowed in New York? Why 20 MR. MASTRO: But your Honor, we 21 know that the aim, as spelled out in 22 the memo, is to bring these foreign 23 litigations as vexatious litigation 24 not necessarily to enforce because New 25 York and the U.S. are, in fact, the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 72 1 *** UNCERTIFIED ROUGH DRAFT *** 2 jurisdictions where they could 3 potentially satisfy the judgment, they 4 would prefer to go to jurisdictions 5 where they can disrupt Chevron's 6 operations ex parte. 7 HON. POOLER: But isn't that 8 their right to go and enforce the 9 judgment? 10 MR. MASTRO: Not, your Honor, 11 under circumstances such as this where 12 knowingly procuring a judgment by 13 fraud and then are going to use a 14 vexatious litigation strategy to try 15 and shake down a settlement or an 16 extortion statement. 17 should tolerate that kind of behavior, 18 no U.S. court. No U.S. court 19 HON. POOLER: Why wouldn't the 20 Venezuelan court itself look to the 21 quality of the judgment? 22 for a fact they wouldn't? 23 Do you know MR. MASTRO: They say in Invictus 24 that they're going to try to find 25 those jurisdictions where they can use *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 73 1 *** UNCERTIFIED ROUGH DRAFT *** 2 their political connections in those 3 courts to -- 4 HON. LYNCH: No, no, no, I think 5 what you quoted was that Patton Boggs 6 would use its vaunted ability to have 7 connections everywhere to find out 8 what countries take what kinds of 9 positions on this. 10 said. That's what it What you quoted to us, that's 11 what it said. 12 MR. MASTRO: They said much more 13 than that, your Honor. 14 wanted to identify the path of least They said they 15 resistance, places that wouldn't have 16 a jaundiced eye, they wouldn't look at 17 whether the judgment was procured by 18 fraud. 19 fundamentally violates U.S. and New 20 York policy, that we don't tolerate 21 judgments procured by fraud, we don't 22 tolerate judgments -- 23 And your Honor, to me, that HON. LYNCH: Anywhere in the 24 world, New York is in charge of -- 25 excuse me, New York is in charge of *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 74 1 *** UNCERTIFIED ROUGH DRAFT *** 2 deciding that we will not tolerate a 3 South African judgment being procured 4 by fraud and enforced in Russia? 5 MR. MASTRO: I think, your Honor, 6 where there has been a reservation of 7 rights, and their own counsel told you 8 and the Southern District during the 9 BIT case that there was an this was an 10 agreement that the New York 11 recognition statute would apply. 12 think that changes the equation. I 13 HON. WESLEY: Are you saying that 14 in essence that stipulation is somehow 15 a choice of law with regard to the 16 stipulation, that somehow that 17 stipulation has a broader sweep than 18 just the particular prospect of coming 19 back to New York and that that somehow 20 you've imprinted New York law onto any 21 ability to enforce the judgment 22 anywhere in the world? 23 MR. MASTRO: I believe, your 24 Honor, that the parties committed that 25 the New York recognition statute would *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 75 1 *** UNCERTIFIED ROUGH DRAFT *** 2 cover enforceability. 3 way to have that determination made And the only 4 and therefore hopefully to give it 5 effect elsewhere around the world is 6 for that determination to be made and 7 that's a determination that Judge 8 Kaplan is prepared to make. 9 this temporary preliminary injunction, And if 10 this is a status quo injunction were 11 to be lifted, you will see, just like 12 you saw a judgment come out of Ecuador 13 in a matter of days, one hundred 14 eighty-eight single spaced judgment as 15 soon as a TRO entered even though the 16 judge there said he still had fifty 17 thousand pages of the record to go, 18 you will see that appeal decision come 19 out in a red hot second and them 20 trying to enforce around the world. 21 We have a status quo injunction, your 22 Honor. 23 HON. POOLER: We don't deal with 24 predictions here, counsel. 25 is up. Your time *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 76 1 *** UNCERTIFIED ROUGH DRAFT *** 2 3 MR. MASTRO: I understand. Thank you very much, your Honors. 4 I implore your Honors just one 5 last point, if I may, please, your 6 Honor? 7 maintain the status quo injunction 8 because there will be an opportunity 9 for a full trial. I implore your Honors to But we had other 10 claims in this case as well. 11 severed at their request. It was 12 also RICO and fraud claims that would 13 also have justified injunctive relief 14 here based on the massive fraud that 15 occurred here and Judge Kaplan should 16 have the opportunity to decide whether 17 injunctive relief is appropriate under 18 those claims. But we had 19 HON. LYNCH: If we were to 20 reverse this order, speaking of 21 predictions and what's going to happen 22 in a red hot second, are you telling 23 us that you would then go back to 24 Judge Kaplan and ask to reactivate the 25 RICO claims and seek the same *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 77 1 2 *** UNCERTIFIED ROUGH DRAFT *** injunction under those claims? 3 4 MR. MASTRO: Judge Kaplan didn't decide -- 5 HON. LYNCH: I know, he didn't do 6 anything with that because he severed 7 it. 8 9 10 MR. MASTRO: I don't want to make predictions either. HON. LYNCH: Oh, you don't want 11 to predict what you'll do. 12 want to predict what the Ecuadorian 13 intermediate appellate court is sure 14 to do, but you have no idea what 15 you're going to do? 16 You only MR. MASTRO: Your Honor, I was 17 simply trying not to have predictions 18 about what this court might do, but if 19 this court were to alter the status 20 quo vis-a-vis the dec relief action, 21 I think that we would have every right 22 to go back to Judge Kaplan and we 23 would ask your Honors to give us that 24 opportunity to maintain the status quo 25 while we did that. But we very *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 78 1 *** UNCERTIFIED ROUGH DRAFT *** 2 strongly believe that it was perfectly 3 appropriate under these circumstances 4 for him to enter a status quo 5 injunction and that this would 6 benefit this court would benefit in 7 just a few weeks from now having a 8 full trial record where there would be 9 a full record of the full extent of 10 the fraud here, the full extent of the 11 lack of impartiality and due process 12 in Ecuador, and that this court should 13 decide this case on that kind of a 14 full record, not alter a status quo 15 injunction. 16 HON. LYNCH: I was just wondering 17 if any instructions to Judge Kaplan 18 with respect to what the law is with 19 respect to the New York foreign 20 judgment act would leave Judge Kaplan 21 on his own with respect to what might 22 be appropriate under RICO. 23 MR. MASTRO: And clearly there's 24 the ability to give injunctive relief 25 under RICO and under common-law fraud. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 79 1 *** UNCERTIFIED ROUGH DRAFT *** 2 Thank you very much, your Honor. 3 HON. POOLER: Thank you. 4 5 6 7 8 9 Mr. Tyrell, you've reserved three minutes for rebuttal. MR. TYRELL: Thank you, your Honors, a few quick points. Judge Lynch said doesn't anyone plan for a judgment, hence the 10 invocation of the Invictus memorandum. 11 I'm rather proud of that. 12 that it's in the record, the court 13 read it it itself. 14 about acting like Somali pirates. 15 talks about the kinds of opportunities 16 that are available in the world to 17 enforce judgment under the laws of 18 various states, that's all it says, no 19 matter what nefarious tone Judge 20 Kaplan placed about it. 21 I suggest It talks nothing It Mr. Mastro stands here and says, 22 oh, my God, you're going to go ex 23 parte and try to enforce that 24 judgment. 25 done in sixteen federal courts around You mean like Mr. Mastro's *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 80 1 *** UNCERTIFIED ROUGH DRAFT *** 2 the state using 1782 which is allows 3 you to go ex parte? 4 The important point is the memo 5 and the plan, which was highly 6 preliminary, was to be able to use the 7 law, not the lack of law that is 8 permitted in other countries. 9 is nothing wrong with that. There 10 Judge Wesley made a comment 11 about his experience on Christmas Eve. 12 This court in China Trade made the 13 following observation which I think is 14 pertinent. 15 not appropriate merely to prevent a 16 party from seeking slight advantages 17 in the substantive or procedural law It says an injunction is 18 to be applied in a foreign court. 19 This court has always recognized that 20 the judgment creditor has a right to 21 seek procedural advantages where he 22 goes and enforces his judgment. 23 Judge Lynch asked a question of 24 can you cite any case in which the 25 Recognition Act was used *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 81 1 *** UNCERTIFIED ROUGH DRAFT *** 2 affirmatively. 3 researched it and I'll give you a very I can tell you we've 4 clear answer. 5 all. 6 for this court to decide and affirm 7 Judge Kaplan that it can be used 8 affirmatively. We can't find any at So it would be groundbreaking 9 Judge Lynch also asked a 10 question of Mr. Mastro which I picked 11 up on in which he said so you're 12 really not concerned about enforcement 13 in New York; are you. 14 can't be because of the stipulation 15 and they couldn't have enforced it 16 here before that anyway. 17 18 HON. LYNCH: Who stipulated that they weren't coming to New York? 19 20 Well, they MR. TYRELL: All of the Ecuadorian plaintiffs. 21 HON. LYNCH: But all of them 22 haven't conveyed the stipulation that 23 Mr. Mastro suggested with respect to 24 not taking advantage of this Latin 25 American treaty. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 82 1 *** UNCERTIFIED ROUGH DRAFT *** 2 MR. TYRELL: Right, we disagree 3 that the Latin -- no, they have not 4 made any such stipulation. 5 HON. LYNCH: Well, when you say 6 you disagree with whether that is 7 authorized, if you think it's not 8 authorized, why would there be any 9 problem with doing what Judge Wesley 10 suggested which is all the plaintiffs 11 stipulate that they aren't going to do 12 something that you said they couldn't 13 do anyway. 14 small concession to make. 15 I think that's a pretty MR. TYRELL: Your Honor, there is 16 nothing wrong with it. 17 the authority today when I'm 18 representing two to get the approval 19 from the people that represent the 20 forty-five, I'm willing to go and ask 21 them. 22 And if I had The point is what stipulation 23 was asked of us. 24 was demanded of us was not that of The stipulation that 25 Judge Kaplan. Judge Kaplan asked us *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 83 1 *** UNCERTIFIED ROUGH DRAFT *** 2 to stipulate to the permanent -- to 3 the entry of the preliminary 4 injunction for an indefinite period of 5 time, in short waiving our appellate 6 rights in order to get a fair amount 7 of time to respond to the preliminary 8 injunction here. 9 HON. LYNCH: Mr. Mastro today 10 suggested that at least this of the 11 many, many, many disputed issues 12 between the parties would perhaps 13 disappear, at least this advantage 14 that he is pressing that he says -- I 15 understand you disagree -- that in 16 Latin American countries specifically 17 this judgment could be enforced today. 18 He's asking that the plaintiffs, the 19 Lago Agrio plaintiffs stipulate that 20 they need to do something that you say 21 they can't do anyway. 22 what the other members of the panel 23 think but I'd be interested in seeing 24 whether we get a letter in some 25 reasonable period of time saying that I don't know *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 84 1 2 *** UNCERTIFIED ROUGH DRAFT *** sure, they'll do that. 3 HON. WESLEY: I was going to ask, 4 is it conceivable that you could or 5 are you willing to contact the other 6 forty-five and see if they will 7 stipulate to not enforcing the 8 Ecuadorian judgment until the 9 appellate process in Ecuador has run 10 its course? 11 MR. TYRELL: I understand that 12 request and we'll get back to the 13 court with a letter. 14 HON. WESLEY: I know your red 15 light is on, but I want to ask you a 16 couple of questions. 17 You raised a personal 18 jurisdictional objection under the 19 law? 20 21 MR. TYRELL: Yes. HON. WESLEY: And I read the 22 complaint. 23 doesn't necessarily track what Judge The complaint, although 24 Kaplan said, pretty much premises the 25 jurisdictional determination on the *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 85 1 *** UNCERTIFIED ROUGH DRAFT *** 2 fact that the plaintiffs have appeared 3 on other occasions with regard to 4 actions in New York; is that correct? 5 MR. TYRELL: The answer is it is 6 based on two things. There were four 7 actions in New York. Three of them 8 were completely defensive. 9 appeared, the Ecuadorian plaintiffs -- 10 They HON. WESLEY: I was going to get 11 to what their status was. 12 plaintiffs, as to being plaintiffs -- But as to 13 MR. TYRELL: Only Aguinda, only 14 the original eighteen year ago action 15 in Aguinda was their only affirmative 16 invocation of this court. 17 HON. WESLEY: They intervened in 18 the arbitration but the arbitration 19 has been resolved, the mandate's been 20 issued, there's no more proceeding in 21 that; is that the case? 22 MR. TYRELL: That's correct. An 23 they had continued to try to not lose 24 their privileges in the Donziger 1782 25 action. That's why they stepped in. *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 86 1 *** UNCERTIFIED ROUGH DRAFT *** 2 They said we shouldn't forfeit 3 eighteen years of our attorney-client 4 communications. 5 defensively. 6 They did it HON. WESLEY: I understand 7 the 1782 objection. 8 interested in just a couple of other I'm also 9 things. It seems clear that although 10 in New York -- and maybe it's foolish 11 to say that an individual couldn't do 12 business in New York. 13 strongly suspect the New York Court of 14 Appeals would tell us that. 15 doing this, in your view, were your 16 clients doing business in New York? 17 I would But in MR. TYRELL: Absolutely not, your 18 Honor. 19 for either purposes of general or 20 specific jurisdiction. 21 And the only analysis of it -- And if I may respond to you in 22 two ways, the only thing that Judge 23 Kaplan hangs his hat on is to say that 24 all of the actions of Mr. Donziger who 25 happens to maintain his home and an *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 87 1 *** UNCERTIFIED ROUGH DRAFT *** 2 office in his home in New York, that 3 that is transacting business by my two 4 clients in New York, there isn't a 5 single suggestion that they aimed any 6 communication here, there isn't even 7 anything in the record to suggest that 8 my two, as distinct from the 9 Ecuadorian lawyer, ever spoke 10 personally with Mr. Donziger. 11 HON. WESLEY: Well, transacting 12 business when -- when hiring a lawyer 13 to represent you someplace else and 14 then the lawyer having a dispute with 15 you about a fee, that's the Fishbar 16 case, that's an appellate decision 17 just a couple of years ago, that's 303 18 and all there has to be a substantial 19 nexus in the activities because the 20 transaction of business and the 21 dispute. 22 Kaplan has said that because Mr. 23 Donziger sought out financing to 24 further the lawsuit in Ecuador, that Here it seems to me that 25 that was transacting business on *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 88 1 2 *** UNCERTIFIED ROUGH DRAFT *** behalf of your clients. 3 What's your view on that? 4 5 MR. TYRELL: We disagree strongly with that. 6 First of all, there's no 7 suggestion that my two clients knew 8 anything about what Mr. Donziger was 9 doing. There's no connection 10 whatsoever. 11 indigenous people living in the jungle 12 in Ecuador. 13 -- they have never authorized Mr. 14 Donziger to go seek funding for them. 15 There's no evidence to that 16 whatsoever. 17 the first prong. 18 second prong, if it was specific 19 jurisdiction, the case would have to 20 arise out of it. 21 course, can't. 22 My clients basically are They have never probably And you're focusing on Of course on the Here the issue, of HON. WESLEY: Well, there has to 23 be a substantial nexus between the 24 activity and the claim asserted. 25 MR. TYRELL: And the claim here *** UNCERTIFIED ROUGH DRAFT COPY ONLY *** 89 1 *** UNCERTIFIED ROUGH DRAFT *** 2 is that the Ecuadorian court system is 3 corrupt and that the judgment was 4 obtained by fraud. 5 in New York. 6 system is or is not corrupt. 7 nothing to do with New York. 8 9 That wasn't done The Ecuadorian court That has HON. WESLEY: Fair enough. Thank you. 10 MR. TYRELL: Thank you very much. 11 HON. POOLER: Thank you, counsel. 12 Thank you all very much. 13 14 We'll reserve judgment on the mandamus motion. 15 MR. TYRELL: Your Honor, if I may 16 break my rule, we intended but I 17 forgot to, to renew our request for 18 the stay of the proceedings in the 19 district court in light of the 20 argument. 21 22 HON. POOLER: Thank you. We'll let the room clear out and 23 we'll turn to our next matter. 24 (TIME NOTED: 11:17 a.m.) 25 *** UNCERTIFIED ROUGH DRAFT COPY ONLY ***

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?