appendix d - the amazon post · january 15, 2010 “sel [seidel] and chris [bogart] meet with...

Appendix D

Case 1:11-cv-00691-LAK-JCF Document 1847-4 Filed 12/23/13 of 27

Timeline of the Defrauding of Burford


November 2009

Burford is introduced to the Lago Agrio litigation by H5.

According to Chris Bogart of Burford, ”[Nicolas] Economou [of H5] introduced Burford to Steven Donziger, who described himself as the lead U.S. lawyer for the LAPs and also the overall strategist behind the Litigation.”

PX 1418; PX 3100 (Bogart) ¶ 5

December 26, 2009

Steven Donziger emails Selvyn Seidel of Burford, ”a) a summary memo on the case; b) a longer, detailed memo on the case. . . ; and, c) a comment on the expert damages assessment from scientists at Stratus Consulting[,]. . . a highly authoritative environmental consulting firm that serves as our consultant on scientific issues.” Donziger does not inform Seidel that Stratus ghostwrote the expert damages assessment on which it then purported to provide comments.

Bogart testified that ”in their initial discussions with Burford in 2009, the plaintiffs assured Burford in writing that Cabrera was an ’independent’, ’court-appointed’ expert akin to a U.S. Special Master supervising ’14 independent scientists’ in preparing a ’court-ordered damages report’ and that Chevron’s attacks on Cabrera were ’false’ and ’twisting of the truth’.”

PX 1205#; PX 3100 (Bogart) ¶ 4.

.

imeline of the Defrauding of Burford

pg 1Source Link |

November 2009 December 2009


January 15, 2010

“Sel [Seidel] and Chris [Bogart] meet with Donziger and [Jim] Tyrrell [of Patton Boggs] (who has not yet been selected as counsel); pose a number of basic questions around Ecuador appeal and judgment process, binding the plaintiffs, enforcement, etc.” According to Bogart, ”answers [to these questions were] not immediately forthcoming.”

PX 1418

Mid-January 2010

”Burford assist[s] in the search for counsel: Simpson Thacher, Cravath, Patton Boggs among the firms contacted by [Burford]. Sel [Seidel] devotes substantial effort to the matter.”

PX 1418


pg 2Source Link |

January 2010 February 2010


”Patton Boggs is selected to represent the LAPs

“

MARCH 7, 2010

f's bit p of 5Plaintiff' E hibit 1418 3 of 5Plaintiff's Exhibit 1418 p. 3 of 5Plaintiff's Exhibit 1418 p. 3 of 5

March 7 – Patton Boggs is selected as part of a team of new lawyers also including Bartlitt Beck and Motley Rice.

PX 1418


March 30, 2010

Julio Prieto emails Donziger, Pablo Fajardo and others discussing the Stratus 1782 proceedings. Prieto states that ”we must prepare ourselves to minimize the effects. . ..the problem, my friend, is that the effects are potentially devastating in Ecuador (apart from destroying the proceeding, all of us, your attorneys, might go to jail), and we are not willing to minimize our concern and to sit to wait for whatever happens. For us it is NOT acceptable for the correspondence, the e-mails, between Stratus and Juanpa and myself be divulged.” The LAP team did not share this email with Burford.

Bogart testified that ”Burford was particularly appalled later to learn of 2010 emails—predating the Funding Agreement by many months—among the plaintiffs’ counsel indicating that they could ’go to jail’ if the true facts came out. PX 1279. Again, the existence of that sentiment—whether or not well-founded—would clearly have been material to Burford’s investment decision, was not disclosed to Burford and would have resulted in Burford declining to invest.” Bogart also testified that ”Burford did not see this email until early 2011-after it had invested in the Lago Agrio Litigation-and even then, it was not provided to Burford by Donziger or Patton Boggs, but rather obtained from Chevron’s filings in this case.”

PX 1279; PX 3100 (Bogart) ¶¶ 4, 14

April 11, 2010

Bogart emails Seidel, Molot, Aviva Will and Peter Benzian, all of Burford Group: ”I’m not sure how much appetite I have to be funding the Steven [Donziger]/Nicolas [Economou]/Motley Rice show, for all the obvious reasons plus the challenges of getting a secured interest in a claim being brought by the 47 Ecuadorean tribes. However, one alternative that occurred to me as I thought about it is to have Patton Boggs convert its representation to a contingent fee one. . . and for us to fund Patton Boggs so they have essentially the same cash deal they have sought. Patton Boggs has some non-US offices, and it seems to me we could try to do an entirely non- US deal so that we could drip feed and also avoid the fee splitting issues. Thoughts?”

PX 2451

Late April 2010

”Nicolas [Economou] provides a new economic proposal but [Burford] decide[s] not to react to it until Sel [Seidel] can spend more time with Jim Tyrrell on the case.”

PX 1418


pg 4Source Link |

March 2010 April 2010March 2010 A

LLAPs attorney Julio Prieto told Donzig

er that

if the truth about Cabrera were disclo

sed, ”the

effects are potentially devastating in

Ecuador

(apart from destroying the proceeding,

all of

us, your attorneys, might go to jail).

. .” The

LAP team did not share this email with

Burford.


May 3, 2010

Emails among Donziger and lawyers at Patton Boggs related to the Stratus 1782 proceeding show that Patton Boggs was aware at least as early as May 2010 that Stratus had ghostwritten the Cabrera Report at the direction of the LAPs’ counsel and had hidden that fact from Chevron and the Ecuadorian court.

Ilann Maazel of Emery Celli emails Westenberger, Eric Daleo of Patton Boggs, Donziger and others regarding the attachment ”a draft of Pablo Fajardo Mendoza’s Declaration in support of our motion to be filed in Denver.” Maazel states, ”I don’t quite get the purpose of this affidavit. Pablo mentions one document submission but not the other. If he’s submitting an affidavit about what happened, why omit the most important part? It seems misleading at best. I just don’t see how he can sign an aff. that documents his submissions to Cabrera without mentioning that he sent documents that originated from Stratus, which is the one thing the judge is going to want to know. Better for him to say nothing and not submit an affidavit than submit something half way.”

PX 1316

May 5, 2010

The LAPs file the misleading Fajardo declaration in the Stratus 1782 action.

PX 1325


pg 5Source Link |

May 2010

m to say

LAPs’ counsel Ilann Maazel describes the

LAPs counsel IlLAPs counLAPs counsel I sasFajardo declaration

that Patton Boggs was B ggs was

draf gdrafting as ”misleading at best.”

drafting a


Mid-May 2010

Chris [Bogart] meets with Nicolas [Economou] and the economic discussions pick up a bit with Jim Tyrrell’s involvement. Sel [Seidel] displays quite a lot of frustration to plaintiffs’ counsel with where things stand substantively and spends a lot of time with other contacts of his thinking up alternative strategies. Jim [Tyrrell]; Sel and Chris meet at RAND and discuss the way forward; Jim finds and begins to work with an Ecuadorean law expert. There is still no work product or analysis of any issues.

PX 1418

May 27, 2010Maazel emails Westenberger, Tyrrell, Daleo, Edward Yennock of Patton Boggs, Jonathan Abady of Emery Celli, Laura Garr, Andrew Woods, Donziger and others, discussing strategy to avoid Stratus’s production of communications between Stratus and Cabrera in the Stratus 1782 proceedings. Maazel states, ”Unless we want the Stratus/Cabrera revelation to come out in CO, which seems like the worst possible place, we need to make our submission in Ecuador and fast.” Westenberger responds, ”What about the following? Appeal; move for stay; if we win with kane great; if we lose, we produce whatever we want (narrow read); gd complains and then we move for clarification. If we lose again, we think about another appeal.” Donziger responds, ”Like this approach.”

PX 1363

May 20, 2010Westenberger emails Donziger and others: ”Per our discussion during yesterday’s conference call, we have attached a draft outline of the Petition that we are contemplating filing before the Ecuadorian Court in an effort to ’cleanse’ any perceived impropriety related to the Cabrera Report.”

PX 1359

May – July 2010

Documents show that Burford relied on Patton Boggs to address the ”Cabrera Problem” and other missing ”basic information and analysis . . . about the case.”

PX 1345; PX 1418


pg 6Source Link |

May 2010

Burford relied on Patton Boggs to addr

ess

”the Cabrera Problem”


Patton Boggs initiates Jim Tyrrell’s ”cleansing strategy.” JUNE 2010

”“”My proposal, Your Honor, is that you

ask both parties to submit supplementary information to aid this Court in the process of assessing the global damages, based on all of the evidence collected in these proceedings over the last seven years, which is contained in the case record.”

PX 0384#


June 14, 2010

Email from Abady to Donziger and others stating, ”If we cop to having written portions of the report, the details of exactly how that might have been accomplished will be for another day, when and if the relevant people are deposed as part of the 1782s, but hopefully by that time, the process of having both sides cure this with new submissions will be under way and render the details of the Cabrera report a thing of the past.”

Bogart later testified that ”in an email dated June 14, 2010, in the midst of negotiations over the Funding Agreement and long before delivery of the Invictus memo, one of the LAPs’ US lawyers wrote to a number of other lawyers, including a number of Patton Boggs lawyers, a lengthy discussion weighing the pros and cons of what would happen if ’we cop to having written portions of the report.’” Bogart testified that this email debate ”was occurring outside Burford’s view.”

PX 1371; PX 3100 (Bogart) ¶ 15

June 1, 2010

Regarding the Lago Agrio filing, Donziger asks: ”Should we include all the Stratus annexes in the Pablo escrito in Ecuador?” Abady responds: ”This is a question for the group, and I want to hear from others, but I think we should include them and essentially admit that he adopted these. Once the CO docs become public— including those ’given to Cabrera’—the verbatim adoption will be irrefutable. I think it’s a no-brainer.” Donziger replies: ”Not sure. There will be negative fallout in a number of areas. We could probably absorb it, but we need to probe what it means at a time we are trying to raise money and keep the shaky ship afloat. Might be better to be general but I too want to hear what people think.”

As Bogart testified, ”There is absolutely no question that Burford would not have invested in the Litigation - which we described as having ’greater uncertainty’ than our usual investment and ’significant’ risks that were ’not capable of complete evaluation’ - had we known the whole truth about Cabrera. Indeed, Donziger knew as much: when debating how much to conceal, he wrote his colleagues (including Patton Boggs) in June 2010, during a period of active negotiations with Burford, that they ’need to probe’ what admitting the truth would mean ”at a time we are trying to raise money” because there would be ’negative fallout’ and it ’might be better to be general’. PX 1364. Of course, we were unaware of this behind the scenes debate about their deception until after we invested.”

PX 1364; PX 3100 (Bogart) ¶ 13

June 5, 2010

Yennock sends an email to Abady, Andrew Wilson of Emery Celli, Maazel and Donziger, copying Tyrrell, Westenberger, Jason Rockwell of Patton Boggs and Daleo regarding the cleansing expert strategy and concealing the LAPs’ contacts with Cabrera from the U.S. courts, stating: ”A near final draft of the Ecuadorian submission is attached. The sole open issue is the specificity with which we describe the ’meetings’ with Cabrera; please see the note on that in the body of the attached draft. If we were [sic] are to have no more certainty than we do today, we are inclined to revise this to include little or no information about the meetings, as much as we’d like to be able to use this submission to fully air the facts.”

PX 1371

Early/Mid June 2010

”Significant economic discussions underway, principally between Chris and Nicolas, but with involvement from Sel, Jim and Steven (and the whole Burford team behind the scenes).”

PX 1418


pg 8Source Link |

June 2010


June 15, 2010

In an email chain concerning how best to characterize the LAPs’ and Stratus’s contacts with Cabrera, Abady writes: ”By refusing to admit [that we provided findings to Cabrera], we look coy at best and silly or untrustworthy at worst. Failing to acknowledge that we authored portions of the report will fuel Chevron’s efforts; admitting it shuts it down.” Westenberger responds: ”But we don’t know everything there is to admit.” Abady responds to this by saying ”Which is why we’re not admitting everything – only what we have to.” Rockwell then responds and states: ”I don’t see how attempting to minimize and potentially misrepresenting the facts surrounding the cabrera report shuts down their 1782 efforts. I think it does the opposite. Chevron will point to this and claim it is the latest in plaintiffs perpetuation of the fraud on the court that they need to disprove.” Wilson states that he agrees with Rockwell and ”wonder[s] whether we do better by explaining that we authored the report – rather than letting Chevron tell that story like Nancy Drew.” Bogart testified that this email debate ”was occurring outside Burford’s view.”

PX 2380; PX 3100 (Bogart) ¶ 15

June 14, 2010

Donziger expresses concern to Tyrrell, Westenberger, and Daleo that ”there is an increasing risk that our ’cleansing’ process is going to be outrun by the judge and we will end up with a decision based entirely on Cabrera. Absent our intervention ASAP, they believe the judge could issue autos para sentencia in about 3-4 weeks, which would in effect bar our remedy to the Cabrera problem.”

PX 1370

June 21, 2010

The LAPs file their motion in Lago Agrio seeking permission to submit the cleansing expert reports, and providing the same misleading account of the Cabrera relationship as originally submitted with the Fajardo declaration in Colorado.

PX 384#


pg 9Source Link |

June 2010


In order to evaluate the possible investment, Burford asks Patton Boggs to prepare a comprehensive analysis of the case.

SUMMER 2010

pPlaintiff's Exhibit 2382 p. 13 of 47Plaintiff's Exhibit 2382 p. 13 of 47Plaintiff's Exhibit 2382 p. 13 of 47

PX 1389


Early July 2010

”A lot of activity, much driven by Sel – but this feels almost like the beginning of the case [according to Bogart]. Sel is asking for quite basic information that [Burford is] still missing: a budget, a basic legal analysis, etc. [Burford] discuss[es] internally proceeding with this case as we did with [REDACTED] comprehensive analysis from Patton Boggs, separate diligence counsel, etc., to produce a very detailed and thorough board package. [Burford] retain[s] corporate counsel who starts working with Patton Boggs on the funding agreement issues – but those too remain largely opaque, such as how we bind the plaintiffs. Patton Boggs agrees to take the lead on those issues.”

PX 1418

July 4, 2010

Burford requests from Patton Boggs ”an overall memorandum or memoranda setting out the basic material facts as you PB sees them as of today, the basic issues, an analysis of the issues, and the strategy and game plan in going forward . . . .”

PX 1389

July 11, 2010

Seidel emails Tyrrell requesting Patton Boggs’ analysis of various issues including, ”PB’s evaluation of the opportunities and chances for success? For settlement? For enforcement in various places if that was necessary?”

PX 1390

July 13, 2010Burford receives a document from Patton Boggs entitled, ”Invictus, International Recognition and Enforcement Decision Matrix,” which includes information on jurisdictions in which Chevron has assets.

PX 1394


pg 11Source Link |

July 2010

gy and game plan in going forward . . . .”

PX 1389

10

Tyrrell requesting Patton Boggs’ rious issues including, ”PB’s the opportunities and chances for settlement? For enforceme t i

July 13, 2010Burford receives a document from Patton Boggs entitled, ”Invictus, International Recognition and Enforcement Decision

ent n PX 1389

Burford requested from Patton Boggs ”a

n

overall memorandum or memoranda settin

g out

the basic material facts as you PB see

s them

as of today, the basic issues, an anal

ysis of

the issues, and the strategy and game

plan

d ”d ”in going forward...d ”

...


July 15, 2010Seidel emails Bogart: ”On the outside, we will seek board approval at the aug 12 meeting. My goal is to seek it earlier, and I think unless we can figure out a way to stage it and get money to Patton Boggs and perhaps some others to take this forward (in the next 2 or so weeks), we are going to be behind the 8 ball, as I indicated in my earlier memo. Patton boggs have invested heavily in taking this case forward since February, and my conversations with Jim tell me that even he and Boggs, both on the executive committee, are facing a situation that can seriously restrict their activity without this, and this at a time when we are in an important time frame.”

PX 1396

July 19, 2010

Westenberger emails Frank Schwitter of Burford Advisors and Seidel, copying Tyrrell, providing an executive summary of the Cabrera report, Cabrera’s CV, John Connor’s CV, the Fajardo Declaration, the LAPs’ request to the Ecuadorian court to submit the ”cleansing expert” reports and Chevron’s response. Westenberger describes the Fajardo Declaration as ”more thoroughly explain[ing] the process used to select Mr. Cabrera.”

PX 1405#


pg 12Source Link |

July 2010

12 y to orward n my nce n the ty

nd e

e.

.”

”Patton boggs have invested heavily in

taking

this case forward since February, and

my

conversations with Jim tell me that ev

en he

and Boggs, both on the executive commi

ttee, are

facing a situation that can seriously

restrict

their activity without this, and this

at a time

when we are in an important time frame

.”

Westenberger provides the Fajardo decl

aration

to Burford, describing it as, ”more th

oroughly

explain[ing] the process used to selec

t

Mr. Cabrera.”


July 21, 2010Seidel responds to a July 20 email regarding documents and other items expected from ”Eric and/or Steven.” Regarding ”Chevron asset locations,” Seidel writes, ”WE REALLY CANNOT WAIT FOR THIS. ASK ERIC IF HE CAN SEND THAT TOMORROW AT THE LATEST.” Regarding ”Those things expected in near term with no specific date set,” Seidel writes that he expects ”experts ANALYSIS of different approaches to damages AND DIFFERENT PROJECTIONS – REVIEW OF CHEVRON EVIDENCE, AND COMPUTATIONS BASED ON THAT, WITH BARROS PERHAPS BROKEN OUT AS A SEPARATE ANALYSIS WITH THE 3 – 5 BILLION; AND ANALYSIS OF EVIDENCE USED BY CABRARO [sic] – by Monday, Aug. 2, AT THE LATEST, BUT WITH THE EXPECTED RESULTS TO BE GIVEN TO US BEFOREHAND BY STEVEN AND ERIC AND EXPERTS.”

PX 1398

July 22, 2010Westenberger sends Seidel and Schwitter a memo attached to an email with subject ”International Enforcement Concepts and Jurisdictions with Chevron Assets.”

PX 1400

Late July 2010Burford ”engages in significant plan-ning – mostly led by Sel, who continues to have the laboring oar here – but . . . continue[s] not to have basic information and analysis yet about the case. Steve Wilson [of Tennenbaum Capital] provides a list of queries which mirror our internal questions. Patton Boggs announces a delay in the provision of its memo. [Burford] realizes that [they] don’t have enough time to get this done before the August board meeting and [they] remove the matter from the agenda.”

PX 1418


pg 13Source Link |

July 2010


August 2010Initial drafts of the Invictus memo are circulated between Patton Boggs and Burford.

PX 1407


pg 14Source Link |

August 2010

August 9, 2010Joseph Kohn writes to Luis Yanza, Fajardo, Humberto Piaguaje, Ermel Chavez, Hugo Payaguaje and Emergildo Criollo responding to their letter terminating their attorney agreement with KSG. He states that ”I am also shocked by recent disclosures concerning potentially improper and unethical, if not illegal, contacts with the court-appointed expert, Mr. Cabrera . . . When Chevron first started making these accusations, Donziger assured me repeatedly that there were no improper contacts of any kind. . . . It is now clear in hindsight that those statements were blatant lies, intended to induce our firm into paying more money for litigation expenses.”

Bogart testified that, ”Burford later learned through documents in this case that Donziger failed to disclose facts regarding Kohn’s termination which would have been material to Burford, including, among other things,” Kohn’s letter. Bogart confirmed on redirect that he only learned of Kohn’s letter after investing.

PX 1406; PX 3100 (Bogart) ¶ 23; Tr. (Bogart) 269:19-22


August 18, 2010LAPs’ counsel retains the Weinberg Group to execute the cleansing expert strategy.

PX 630

August 18, 2010Adlai Small of Patton Boggs emails Donziger, Abady and Westenberger regarding the cleansing experts, stating: ”Below is some brainstorming/rambling on Expert issues . . . One overarching theme to think about throughout the process is how we want the new expert to address the Cabrera report and its conclusions. While our new expert will most likely rely on some of the same data as Cabrera (and come to the same conclusions as Cabrera), Do we think the expert should make specific mention of such consistencies? Do we have our expert make some general statement about the Cabrera report that provides an overview of where he concurs/disagrees with Cabrera ? We probably wouldn’t want to draw that much attention to Cabrera, but we should think about whether our expert might address Cabrera’s findings in such a subtle way that someone reading the new expert report (the Court in Lago or an enforcement court elsewhere) might feel comfortable concluding that certain parts of Cabrera are a valid basis for damages. We are working hard to retain the expert and that is obviously the most pressing issue on the table.”

PX 1410

August 19, 2010Bogart emails Seidel, copying Molot and two Burford board members: ”Jon and I have communicated with Jim Tyrrell and hope to speak with him today. . . . I’m guessing . . . that the status will be that there is more work to do before there is a legal analysis from Patton Boggs with which everyone is content given the complexity of some of the issues. . . . I think we are at or rapidly approaching the point where this can’t be closed by the end of the current exclusivity period (which expires in mid-September) even assuming all of us and the board reach a level of comfort sufficient to fund the matter. Given that the delay here is not of our making but is rather a delay in getting the long-promised work done by Patton Boggs . . . , I think seeking an extension of the exclusivity period is appropriate before we pour a lot of cash into this with outside counsel of our own.”

PX 1418

August 20, 2010Bogart emails Molot, copying Seidel and Wilson, stating: ”Patton Boggs has not progressed its own analysis on a number of key issues sufficiently to be able to provide the kind of assessment we’re seeking in the next month. . .”

PX 1421

August 25, 2010Will emails Benzian, copying Molot, and at-taches ”the Patton Boggs memo on Chevron” [the updated Invictus memo]. She states: “Ideally, you and I could review and be ready to discuss with Jon tomorrow morning, either at our pipeline call time as we won’t have a pipeline call tomorrow or earlier if you can.”

PX 1424#


pg 15Source Link |

August 2010


September 5, 2010Molot emails Burford’s investment committee the Invictus memo and a Burford memo recommending investment in the ”Ecuador matter.” Molot writes: ”In preparation for the investment committee meeting on Wednesday, I am attaching a memo recommending an initial $4 million investment in the Ecuador matter. Also attached is a longer memo written by lead counsel in the case, Patton Boggs.”

Burford’s memo explains that ”Patton Boggs has developed and begun to execute a ’cleansing strategy’ that would protect an Ecuadorian judgment from attack,” whereby the Ecuadorian court would ”receive new expert reports from the parties and []evaluate those reports and the Cabrera report anew.”

Bogart testified that ”Burford relied heavily on the diligence and analy-sis supplied to it by Patton Boggs, ultimately memorialized in

the so-called Invictus memo,” in deciding to invest, PX 3100 p. 3, and that ”[i]t was clear to Donziger and Patton Boggs that Burford was relying on [the Invictus memo]; Burford had made clear that it could not proceed to its investment committee for consideration of the investment without the memo and the committee’s consideration was delayed during the summer of 2010 because of delays in the produc-tion of the memo . . .” Bogart also specifically testified that ”Burford relied on Patton Boggs’s representations in regard to these ’cleansing expert’ reports, and they were material to Burford’s funding decision.”

PX 2382; PX 3100 (Bogart) ¶¶ 4, 8, 16


pg 16Source Link |

September 2010

”In preparation for the investment com

mittee

meeting on Wednesday, I am attaching a

memo

recommending an initial $4 million inv

estment

in the Ecuador matter. Also attached

is a

longer memo written by lead counsel in

the

case, Patton Boggs.”


The Funding and Intercreditor Agreements between Burford and the LAPs are executed.

OCTOBER 31, 2010

p. 7 o76 f 79 p. 7 of 7 p. 7 of 72 phhhhhiibit 552hibit 2 phibit 2 p hPlaia ntiff's E h h h h h hhhhh

Plaiaintiftifntifntifntifntiftntift f's sf sssssf sf sf sf sf sf sss ExhExhEExExhExExhExhExhEE hhihiiibitbitt 552552ii 2 2 2 p. p.pppp.p.p.p.p.p.p.pp.p.p.pppp 64 64 6464 646464 646464 64 64 64 64646464644 of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7of 7999999999999999999999

Plaintiff's Exhibit 2 p. of 7

Plai tiff' Exhibit 552 66 of 79

PlaPlaintintiffiff's 's ExhExhibiibit t 2 2 p p. . o of 7f 7

PlaPlaintintiffiff's 's ExhExhibiibit t 2 2 p p. . o of 7f 7PX 0552


October 31, 2010The Funding Agreement between Treca Financial Solutions and ”Claimants” is executed.

The Intercreditor Agreement among Treca Financial Solutions; Torvia Limited; Patton Boggs; Donziger & Associates; Emery, Celli, Brinckerhoff & Abady; Pablo Fajardo; Erik T. Moe; H5; and the FDA is executed.

The Funding Agreement provides: ”Claimant has disclosed to the Funder all documentation and other information in its possession or control relevant to the Claim and there is no information in the knowledge, possession or control of the Claimants or . . . any of its Affiliates or Representatives, that is or is reasonably likely to be material to the Funder’s assessment of the Claim that has not been disclosed to the Funder . . . .”

As Bogart testified, ”The Funding Agreement was signed by Steven Donziger as well as by the plaintiffs’ representatives.” ”Had Burford received the full disclosure to which it was entitled under the Funding Agreement, it certainly would not have invested in this matter.”

PX 552 ¶ 10.2 (l); PX 3100 (Bogart) ¶ 4

November 2, 2010Treca transfers $4 million to the LAPs.

PX 2456; PX 3100 (Bogart) ¶ 28


pg 18Source Link |

October 2010 November 2010


Burford learns of the fraud. JANUARY 2011

January 27, 2011Tyrrell and Bogart speak on the phone. Tyrrell tells Bogart that Patton Boggs was misled about the LAPs’ and Donziger’s activities before Patton Boggs became involved.

Bogart’s notes indicate:

”Jim put together complete plan and ran process” for ”final briefing . . . in Ecuador.”

”at peace with how used Cabrera report”

”Donziger not told the truth to new counsel of extent of his prior contacts with Cabrera . . . only have come out in Donziger’s NY deposition”

”law firms discussing their ethical obligation”

”JT refuses to discuss Donziger’s testimony with him” ”Patton Boggs evaluating what to do – and procedurally what to do about it”

”not at peace with extent of D’s test. Varied from what D. told PB earlier and thus what PB told Burford”

”Donziger was a fool”

”feel good about underlying case – difficult to believe that no award of significant damages judgment enforceable in many countries”

”enormous financial pressure @ PB”

Conversation memorialized by Bogart in notes attached to his declaration.

PX 1473


January 27, 2011, 10:23 pmBogart emails Getto with subject ”Tonight,” providing Getto with a history of the Lago investment. Bogart writes that the ”Chevron/Ecuador matter is not a typical matter for Burford,” which ”generally invest[s] in commercial disputes between two companies.” Bogart notes that “[i]t is not possible for Burford to re-do the work of outside counsel in complex cases, which is why our business model favors investing in high quality counsel we trust. This was such a case.” ”Burford was misled about the pre-Patton Boggs activity in this case and the extent of Donziger’s disreputable activities in Ecuador.” ”Burford is obviously extremely distressed by the Donziger proceedings and the facts that have emerged, which are very different from the facts as we understood them to be when we made the decision to fund.”

DX 492

January 27, 2011Bogart takes notes on a conversation with Ernie Getto. His notes include:

”deposition stuff looks pretty bad”

”experts – didn’t know Cabrera tainted . . . might not have got involved in case”

”San Ramon, north of SF”

”some scientists – bad – epidemiologist = hack?”

”dinner tonight – flying to SFO – 6:30 Lafayette Park Hotel”

”not on behalf of Chevron . . . Burford”

PX 1474


pg 20Source Link |

January 2011


February 15, 2011William Carmody sends a letter on behalf of ”Claimants” [the LAPs], to Treca, copying Bogart, John Cameron of Torys, Tyrrell, and Economou: ”The Claimants hereby request that the Funder fund the Second Tranche Amount . . . the actual cash balance currently in the Trust Account is less than $1,000,000 . . . . Of course, while any temporary restraining order and/or preliminary injunction is pending in the Southern District of New York, no proceeds of the Second Tranche Amount would be used to enforce or recognize any judgment . . .”

PX 2366

February 14, 2011The Lago Agrio court issues the Final Judgment, disclaiming reliance on the Cabrera report, but noting that it considered other expert assessments, including some of the reports submitted by the new experts hired by LAPs’ Counsel, in rendering the Judgment.

PX 399

February 8, 2011Judge Kaplan enters a TRO, restraining the RICO defendants from pursuing enforcement activities with respect to the Ecuadorian judgment.

2011.02.08 Order on TRO [Dkt. 77]

February 21, 2011In response to Carmody’s letter of February 15, Treca’s representative writes: ”[u]ntil [the temporary restraining order entered by Judge Kaplan on February 8, 2011] is lifted, we are unable to consider any request for the Second Tranche Funding . . . [W]e also note that very serious allegations of fraud and other misconduct have been made that appear to contravene directly the representations made to the Funder in the Funding Agreement . . . Given your current inability to issue a Funding Notice for the reasons set forth above, we need not reach any conclusions at this time.”

PX 1476


pg 21Source Link |

February 2011


March 3, 2011Bogart emails Tyrrell copying Molot with the subject ”Our call,” stating:

”As I told you, not only has Judge Kaplan issued his TRO, but it has been served on Burford by Chevron. Your view seems to be that Burford would not be at risk of violating that order and facing the risk of sanctions – which could destroy Burford if imposed – were Treca to fund activities in the case that did not relate to enforcement. You can imagine that we don’t think that is a risk we can, or are legally obliged to, accept. However, if Steven or the plaintiffs share your view, then why not move for clarification of the TRO before Judge Kaplan?”

PX 2471

March 7, 2011Judge Kaplan entered a preliminary injunction, enjoining the RICO defendants from pursuing enforcement activities with respect to the Ecuadorian judgment.

2013.03.07 Order Granting Preliminary Injunction [Dkt. 181]


pg 22Source Link |

March 2011


September 19, 2011The Second Circuit Court of Appeals vacates the preliminary injunction entered in Chevron’s RICO case.

Chevron Corp. v. Naranjo. et al., No. 11-1150, Dkt. 600 (2d Cir. Sept. 19, 2011)


pg 23Source Link |

September 2011


September 23, 2011Burford Group sends a letter to Purrington, Donziger, Fajardo, Yanza, and the FDA, stating, among other things:

”It is clear from the evidence that has come to light subsequent to our discussions with you and Treca’s entry into the Funding Agreement that Claimants, the FDA, their affiliates and their attorneys (collectively, ”you”) have engaged in conduct and activity that gives rise to numerous material breaches of the Funding Agreement. In addition to breaching the Funding Agreement – through misrepresentations and other material failures – the conduct discovered amounts to fraud.

Indeed, now that we are in possession of more facts – facts only revealed through discovery in the proceeding before Judge Kaplan – we believe that you and particularly your US representatives engaged in a multi-month scheme to deceive and defraud in order to secure desperately needed funding from Treca, all the while concealing material information and misrepresenting critical facts in the fear that we would have walked away had we known the true state of affairs.

In the Invictus report, we were told: ’Chevron claims that the outtakes show unlawful collusion between Plaintiffs, their experts, and Mr. Cabrera . . . . But as with virtually any other claim by Chevron in this litigation, reality is being distorted here.’ (Page 4). The Invictus Report also said that ’Chevron has cited in its submissions no Ecuadorian law or rule that prevents ex parte communication’ (page 5) and that Chevron is ’[c]leverly using the lens of U.S. norms to distort what transpired in Ecuador’ and ’us[ing] its findings regarding Plaintiffs’ involvement with the Cabrera Report to create the impression that it is the victim of an injustice in Ecuador.’ (Page 4) Throughout, you characterize Chevron’s ’arguments concerning Mr. Cabrera’ as ’misleading.’ (Page 4) Separately from the Invictus Report, you assured us that your contacts with Cabrera were limited and entirely permissible.”

In a footnote, the Burford Group writes, ”While it may have had other functions as well, a key function of the Invictus Report was to provide us and Treca with Patton Boggs’ analysis of the case as a major part of our recommendation and Treca’s investment decision. That function – and our and Treca’s reliance on the Report – was clearly understood by all involved. Indeed, when the Report was delayed in July 2010, so too was Treca’s investment decision because of non-receipt of the Report.”

[Bogart testified that the correct date of the letter is September 23, 2011.]

PX 1490; PX 3100 (Bogart) ¶ 36

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September 28, 2011Bogart emails Carmody, Donziger, and Tyrrell, copying Mark Hansen and Molot, attaching a letter from Treca to Purrington, Donziger, Fajardo, Yanza, and the FDA. The letter states:

”As you know, Treca wrote to you on 23 September 2011 and provided notice of termina-tion of the Funding Agreement. That notice was sent by courier and email; the time of the email transmission was shortly after noon, New York time, on 23 September.

Mr. Carmody’s letter was not delivered to Treca’s Cayman corporate agent until very late in the day on 23 September (a Friday) in a plain white envelope and did not come to the attention of Treca’s investment adviser until 26 September. We note that Mr. Carmody evidently elected not to send his letter by email to Treca’s counsel or investment adviser despite their identities being well-known to him. Although he shows a copy of his letter to Treca’s counsel, Mark Hansen, Mr. Carmody did not email Mr. Hansen the letter until the afternoon of 27 September. It is hard to resist the conclusion of attempted – but unavailing – gamesmanship in your communications.

In light of Treca’s termination of the Funding Agreement, your belated provision of a Proposed Trust Deed is moot, except to confirm once again what Treca has said for months – that Claimants are not, and have never been, entitled under the Funding Agreement to issue a Funding Notice because of their non-compliance with section 8 of the Funding Agreement.”

[Section 8 of the Funding Agreement is ”PROVISION OF SECURITY AND RELATED RIGHTS” and requires the Claimants to enter a trust for the distribution of the Judgment.]

PX 1489, PX 552


pg 25Source Link |

September 2011
