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Outside Magazine, March 2007
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Slick (cont.)

RABBLE ROUSING IS A VINTAGE Donziger tactic. He grew up in Jacksonville, Florida, his father a conservative businessman, his mother a teacher active in farm workers' rights. Not surprisingly, the son combines no-nonsense efficiency with the zeal of an agitator.

After graduating from Washington, D.C.'s American University in 1983, Donziger began his adult life as a freelance journalist in Nicaragua, covering the decade-long war between the Sandinista government and the U.S.-backed contras. He returned to America in 1987 and enrolled in Harvard Law School, where he participated in sit-ins against university policies he deemed insufficiently progressive. After graduation, he worked for two years as a public defender in D.C. and edited a 1996 book of essays, The Real War on Crime, that outlined inequities in the criminal-justice system. Because there is no lost cause he will not embrace, Donziger wrote a report on voter disenfranchisement after Al Gore came up short in the 2000 election.

Since 1993, Donziger has been a sole practitioner, spending much of his time on the Chevron case. He heard about it through a Harvard classmate named John Bonifaz. John's father, Cristóbal Bonifaz, is an Amherst, Massachusetts, public-interest lawyer and native Ecuadorean whose grandfather was president of the country in the 1930s. Neither Bonifaz has shied away from grand quests—on behalf of several soldiers, military families, and U.S. congressmen, the pair sued President George W. Bush in 2003 for waging war in Iraq without a congressional declaration. But Cristóbal Bonifaz didn't have the financing to take on an international case this big.

He enlisted the Philadelphia law firm of Kohn, Swift & Graf, which specializes in class-action suits brought under the Alien Torts Claims Act, a 1789 piracy law that was dusted off in the late 1970s as a way to sue U.S. individuals and companies for human-rights violations in foreign countries. According to a recent tally by Business Ethics magazine, 36 ATCA cases have been filed against corporations in the past 13 years, including a suit against ExxonMobil Corporation for abuses by Indonesian military forces protecting the company's facilities there. In 2004, in one of the most prominent of these cases, Unocal—which itself has since been bought by Chevron—agreed to settle a suit in which it was accused of responsibility for human-rights abuses, including rape and murder, committed by Burmese troops guarding a pipeline project.

Aguinda v. Texaco, as the suit was then called, seemed like a ludicrous mission. In the early 1990s, multi-billion-dollar lawsuits for environmental damage in the Third World were extremely rare. But more and more, the same fiber-optic cables that allow call centers in Bangalore to oversee flower deliveries in Boston have allowed lawyers like Donziger and environmental organizations like Amazon Watch to link up with citizens' movements in developing countries. What happens in Ecuador no longer stays in Ecuador, especially if you have access to a modem and a bullhorn. And while Donziger and the other attorneys stand to make a lot of money if they win—class-action lawyers typically take a third of any damages—Donziger says his team would likely take a much smaller percentage. He calls the case "hybrid pro bono"; when they signed on, a favorable verdict seemed unlikely, bordering on impossible.

Since 2003, Donziger has shuttled between his wife and child in New York and his work in Ecuador, where he's on a first-name basis with the staffs of hotels that corporate visitors might recoil from. Donziger gets by on an annual stipend from Kohn, Swift & Graf and by doing part-time criminal-defense work, but his budget is limited. He won't disclose the case's costs, nor will Chevron, but Donziger clearly doesn't have a blank check. Because of unpaid bills, he's no longer welcome at Lago Agrio's nicest hotel, where rooms go for $50 a night.

Donziger doesn't give up easily; more than once I interrupted him mid-discourse because I didn't have enough time or patience to hear all he wanted to say. In a one-on-one or a ten-on-one debate, he'd be a good bet to win. But even a legal marathoner can't outlast a Fortune 500 corporation willing to litigate until its accusers run out of money, or appeal until oil is found on Mars. ExxonMobil, for instance, is still appealing a $4.5 billion penalty handed down in 1994 for the Valdez disaster. In December, the 9th Circuit Court of Appeals in San Francisco reduced the award by $2 billion.

Thus Donziger's attachment to guerrilla PR. For the plaintiffs and their lawyers, victory means not just a verdict against Chevron but a payment by Chevron—and those are vastly different things. Donziger wants to keep the public pressure on, to make the company so miserable that it throws in the towel and settles.

"This case has to be won both in and out of the courtroom," he told me. "If you had the case without the pressure, you would never get a result."

Not all of Donziger's allies agree. Cristóbal Bonifaz, who is now less involved in the case, laughed when I asked him about Donziger's attention to the headlines.

"Chevron, of course, hates him," Bonifaz said. "But my view is that you don't win these cases on PR. If this involved a shoe being sold, you could win that on PR. But the problem with Chevron and any oil company is that they don't give a damn. If I'm running out of gas, I'm pulling into a gas station. They sell a commodity."

Chevron clearly doesn't appreciate Donziger's accusations. "Their strategy has been focused on trying to bully the company into a settlement," Hill & Knowlton's Chris Gidez said.

In Quito, another Chevron spokesman visiting from the company's San Ramon, California, headquarters was more blunt. "In some places," Jeff Moore told me, "they call it extortion."

Last year, the company let loose with an unusually harsh statement, describing Donziger and Amazon Watch as "increasingly desperate as their case deteriorates" and accusing them of disseminating "misleading" and "deceptive" information and engaging in "outrageous and irresponsible behavior."

Chevron seemed to be growing more frustrated as the bad publicity piled up. At its annual shareholders meeting last April in Houston, representatives from an investment fund called Trillium Asset Management offered a resolution (which failed to pass) demanding itemized accounts of the company's spending in the Ecuador case. The U.S. Securities and Exchange Commission has requested information as well. Meanwhile, Bonifaz has lined up nine more Ecuadorean plaintiffs—all suffering from cancer—to file a separate Oriente suit against Chevron in a San Francisco court.

This is attrition warfare: death by lawsuit. How much pain can Donziger inflict? And how much can Chevron take? Even mild-mannered Rodrigo Perez took umbrage at one of Donziger's insinuations: that Chevron's Ecuadorean lawyers are traitors to their nation.

"He's not honest, and he lies," Perez told me. "Of every five words he pronounces, three are lies. And he knows he's lying." Still, Perez admits that Donziger is a formidable opponent. "Has he done a good job, from the point of view of his clients? Maybe he has, because he's a pusher and he works hard. But I don't have any respect for him."




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