Many thoughts. For one thing I was glad that Kaplan was willing to invoke the legislative history of the RICO statute to obstruct the argument that it should apply only to mobsters and the like. The injustice here felt so massive - I was worried that they might get out on a loophole...
The Greenpeace version of the SLAPP suit story aligns well with what I understand to be the popular perception of RICO suits from corporations against smaller organizations. I was surprised by the opinion because it made me think of the McDonald's coffee case and the way that was similarly misunderstood.
Beyond its thoroughness, I was struck by how persuasive I found it. There are times were Kaplan appears unbalanced in his critique of Donzinger, but in total it feels like a well reasoned, largely impartial opinion. Factually, however it seems almost entirely incompatible with the greenpeace reading and as such I'd like to do a bit more independent research on the matter.
Having seen Judge Kaplan's opinion, I empathize a bit more with Donziger and Gupta's decision not to contest the trial court's factual findings. The opinion's size made it seem simply too immense, detailed, and impenetrable to successfully challenge it according to a clearly erroneous standard. I also think it casts Judge Kaplan in a much different light than the clearly biased Greenpeace article. Judge Kaplan was in many cases charitable toward Donziger and made clear he did not question the nobility of the plaintiff
I was surprised by how neutral and compelling the opinion appeared, if taken at face value. I started to have some questions about the evidence, and about Donzinger. After all, just because we don't trust massive corporations like Chevron who destroy environments and peoples does not mean that it's not also plausible that a lawyer could lose track of their ethical compass and take advantage of the legitimate claim of a group of indigenous people to score a big win.
One thing that was striking when skimming through the opinion was how different Judge Kaplan's version of events is from what we read previously about the case. The length of it makes it seem as if it has legitimacy, but sometimes that is just a cover to feign legitimacy. Also, I think the use of RICO in this way is highly problematic.
(continued) plaintiffs' cause. Judge Kaplan even went as far as saying that Donziger likely began the case with pure motives. And the sheer volume of the opinion as well as the evidence he considered made his findings extraordinarily difficult to contest.
It struck me as legitimate and well thought out, your side certainly has its work cut out to counter it. There are a lot of facts that cut against your side. It is very difficult. Yes there is a lot missing but still it shows it is not clear cut that Donzinger is some target of a corrupt group. I still feel like I don’t have enough information in defense of Donzinger. That needs to be communicated better.
I was struck by the extreme detail of the opinion. I was surprised how the discussion of RICO begins with why the statute is not just to punish lawyers, but could even reach a "Harvard-educated lawyer" I wonder if this was an argument that was actually brought forth.
After reviewing some of the opinion, I think Donziger likely did plan and facilitate the bribery of the Ecuadorian judge and the ghostwriting of the Ecuadorian opinion against Chevron. That's not surprising -- I think most people here would be willing to do so. It's nearly impossible for Davids to defeat Goliaths like Chevron/Texaco. Why not play hardball with a megacorporation that doesn't give a shit about the people it's hurting?
From some of the parts I read, it did seem like Kaplan had it out for Donziger. However, the opinion was also persuasive and it is hard to determine which side to believe. It is also entirely possible that both sides were in the wrong here in separate ways.
I was also struck by how persuasive it was and how well-reasoned the opinion appeared to me, notwithstanding some of the more outrageous depictions. I feel that in a case this complex, presenting the facts strongly in one way or another seems disturbingly easy. This opinion shows the importance of having a strong hold on the facts. I think RICO use in this way does lay the scene for corporations to abuse it in retaliatory suits/
It's alarming to see the articulated claims Chevron brought against Dozinger. They're very serious and the RICO charge gets at that. But I think it's ironic that a RICO charge is being used against a lawyer, by a huge, powerful, wealthy corporation that has many arms and branches hired to do its doing, more like the mob boss this charge was actually created for (side note: that funds environmental research which will influence environmental policy which has an effect on its business prospects)
Judge Kaplan's opinion is an immense effort to deconstruct an incredibly complex and highly resourced litigation into the constituent parts, and to rule rationally on each of the constituent parts. In responding so meticulously, and forcing the parties to litigate all of the specific issues, Judge Kaplan implicitly biases the side with more resources. This imbalance must have been obvious to Kaplan. But how should a judge think about neutralizing these resource disparities? Should Kaplan have narrowed the scope of the case to the bribery charge, and then limited the discovery? Overall, in serving merely as a process tool, Kaplan avoided the question of justice -- whether the world's largest corporations should be able to intimiate those who challenge their rule, by launching massive suits.
The opinion was a bit overwhelming given its size. While I'm not swayed by the opinion, it is awe-inducing to think of the time that went into writing this opinion and the fact that Judge Kaplan attempted to address each claim. I'm surprised that Judge Kaplan ruled that Chevron had no relief in the Ecuadorian courts and that they did not have a remedy at law. Interestingly, the judge used Donziger's own words about Ecuadorian courts to make the argument.
In reading, I focused most closely on the section of the opinion where Judge Kaplan talks about why the RICO statute was applicable. This case is a good reminder of why it is dangerous to draft vague statutes to make it easier to attach criminal or civil liability in order to get the "real bad guys." As this case illustrates it is susceptible to abuse.