Litigator of the Week: Jeffrey Shinder of Constantine Cannon
"I wanted no part of it."
That was Jeffrey Shinder testifying in October 2013, when the Constantine Cannon partner was asked why he walked away from a multibillion-dollar environmental lawsuit against Chevron Corporation in Ecuador. This week the wisdom of Shinder's decision was hammered home by the law firm that took his place, Patton Boggs, when it surrendered its stake in the Chevron case and admitted that it should have followed Shinder's lead.
As we reported, Patton Boggs agreed Wednesday to pay $15 million—a quarter of its net income in 2013—to settle Chevron's claims that it covered up misconduct by the Ecuadorean plaintiffs' lead counsel, Steven Donziger. Patton Boggs also agreed to withdraw from representing the Ecuadoreans, and the firm assigned to Chevron its 5 percent cut of a $9.5 billion judgment that the plaintiffs won in 2011. In other words, if Donziger ever manages to extract any part of the massive judgment from Chevron, Patton Boggs' contingency fee will go right back into Chevron's coffers.
Patton Boggs' surrender comes in the wake of Chevron's recent victory in its racketeering case against Donziger. In a lengthy bench verdict issued in March, U.S. District Judge Lewis Kaplan in Manhattan concluded that the Ecuadorean judgment was tainted by "egregious fraud," including judicial bribery and collusion with a purportedly independent expert. In a statement negotiated as part of its settlement with Chevron, Patton Boggs said that, based on Kaplan's findings, it now "regrets its involvement in this matter."
As American Lawyer columnist Michael Goldhaber chronicled last year, Shinder was a star witness for Chevron in the Donziger trial. In deposition testimony and on the stand, Shinder said he learned things about the Ecuador case during his brief involvement that were "shocking" and "profoundly troubling."
Shinder's testimony also made clear that his firm could have been in Patton Boggs' place right now. According to Shinder, Donziger first approached him in late 2009, more than a year before an Ecuadorean court issued the megajudgment and concluded that Chevron is liable for widespread oil pollution in the Amazon. At the time, Donziger was confident about his odds of winning. He told Shinder that a court-appointed expert was going to recommended putting Chevron on the hook for as much as $27 billion in damages. Donziger asked Shinder to help enforce the judgment in other countries, since Chevron long ago pulled all of its assets out of Ecuador.
Shinder told the court that he was sympathetic to the plight of the Ecuadorean plaintiffs, but he had doubts about the fairness of the underlying case in Ecuador. Rather than immediately signing on as enforcement counsel, Shinder tested the waters in March 2010 by agreeing to represent Donziger in U.S. discovery actions that Chevron was using to amass evidence of wrongdoing. The more limited assignment allowed him to "get under the hood," Shinder testified, and to meet with key members of Donziger's team, including a Colorado-based environmental consultant who was vouching for Donziger's environmental damage claims.
The Constantine Cannon partner didn't like what he saw. According to Shinder's testimony, the consultant forthrightly admitted that, under Donziger's direction, he'd ghostwritten an environmental damages report and planned to pass it off as the work of the supposedly independent court–appointed expert. Shinder testified that he was "sickened" by what he learned. After a discussion with Constantine Cannon's ethics counsel, he pulled out of the case the next morning.
Patton Boggs, which joined the litigation a month before Shinder withdrew, eventually settled into the role of enforcement counsel. Before Wednesday's settlement, Patton Boggs partner James Tyrrell Jr. defended his firm's judgment in an interview with The American Lawyer, arguing that ex parte communications with court-appointed experts are permissible in Ecuador.
Instead of continuing to defend its actions, Patton Boggs is now obligated to assist Chevron's ongoing efforts to further discredit the judgment. Under the terms of Wednesday's settlement, Tyrrell and Eric Westenberger, the two lead Patton Boggs lawyers on the Ecuador case, agreed to be deposed by Chevron's lawyers at Gibson, Dunn & Crutcher.
Shinder, whose regular practice is representing companies in big antitrust cases, mostly declined to comment when we reached him on Thursday. But he did say his flirtation with plaintiffs-side environmental torts litigation hasn't strained his relationship with longtime clients like Wal-Mart Stores Inc.
"Clients, particularly corporate clients, have said to me, 'You know, you come out looking pretty good here,'" Shinder said. "This hasn't caused me any problems."
If only Patton Boggs could say the same.
Welcome to ALM. You have read 0 out of 0 free articles this month