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APRIL 2017: TOP U.S. LAW FIRMS BATTLING TO FRUSTRATE ESTHER KIOBEL LITIGATION AGAINST SHELL

Esther Kiobel (left) addressing supporters

15 YEARS ON, SHELL STILL FRUSTRATING LITIGATION TO HOLD IT ACCOUNTABLE FOR EVIL DEEDS IN NIGERIA

By John Donovan

Cravath, Swaine & Moore LLP – a global law firm, which has Shell as a long term client, has recently hired another global law firm – Hogan Lovells US LLP – to represent it in an attempt to frustrate litigation being brought against Shell in the USA and the Netherlands. 

We have published several articles in recent months concerning a petition brought in the US courts on behalf of Esther Kiobel.  

She is seeking access to more than 100,000 Shell internal documents gathered by Shell and handed to Cravath. This happened as part of the discovery process in the litigation Esther brought against Shell in 2002, in the US courts. Among many serious allegations was a claim that Shell was complicit in the murder of her husband, a leader of the Ogoni people in Nigeria. 

After 11 years of the Kiobel v. Royal Dutch Petroleum Co litigation, the US Supreme Court ruled in 2013 that Shell could not be sued in the US for alleged misdeeds carried out in a foreign country.

Thus Cravath got Shell off on a precedent setting technicality/loophole. Shell was able to evade dealing with the allegations and supporting evidence.

Soon thereafter I introduced Esther to a Dutch lawyer Channa Samkalden with a view to investigating the possibility of bringing a lawsuit in Shell’s home country, the Netherlands. Preparation work has taken a long time but proceedings are on the brink of being issued. 

Obviously, Shell internal documents gathered for basically the same case involving the same allegations would potentially be very helpful in establishing the truth. 

In response to the Kiobel petition, a US federal judge recently issued an order for the Shell internal discovery to be made available to Esther Kiobel. The petition request was granted. The judge described many of the arguments that had been advanced by Cravath as “specious.”

Predictably, Cravath appealed the decision and according to lawyers acting for Esther Kiobel, is trying to drag out the appeal proceedings.

Cravath hired a top lawyer Neal Kumar Katyal from a top law firm Hogan Lovells US LLP to represent it in court. 

Forgive me for being a cynic, but they seem to have deliberately chosen one of the busiest lawyers in the country. He is the lead attorney on behalf of the State of Hawaii fighting against the controversial move by President Trump “Protecting the Nation From Foreign Terrorist Entry into the United States.” Katyal is also arguing several cases before the US Supreme Court. 

Katyal is supported in the Kiobel litigation by two other colleagues from his firm, lawyers Jessica L. Ellsworth and Eugene A. Sokoloff. They are in addition to the lawyers from Cravath. Wonder who is paying for it all? Someone with very deep pockets and a lot to lose. 

I have provided below links to the recent court documents. My impression of the delaying tactics has been gained from reading documents 31 and 33.  See if you agree. 

17-424-cv

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

ESTHER KIOBEL, Petitioner-Appellee, –

against

CRAVATH, SWAINE & MOORE, LLP, Respondent-Appellant.

On Appeal from the United States District Court for the Southern District of New York, Case No. 1:16-cv-07992 (AKH)

ROBERT A. KATZMANN CHIEF JUDGE

Appeal Court Documents

02/28/2017: Doc 26: NEW CASE MANAGER, Dana Ellwood, ASSIGNED.[1978633] [17-424] [Entered: 02/28/2017 02:32 PM] ONE PAGE

02/28/2017: Doc 27: NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee Esther Kiobel, FILED. Service date 02/28/2017 by CM/ECF. [1978987] [17-424] [Entered: 02/28/2017 06:08 PM] TWO PAGES

02/28/2017: Doc 28: LETTER, dated 02/28/2017, informing the Court that Attorney Richard Herz will be substituted as counsel in place of Benjamin Hoffman, on behalf of Appellee Esther Kiobel, RECEIVED. Service date 02/28/2017 by email.[1979234] [17-424] [Entered: 03/01/2017 09:58 AM] ONE PAGE

03/01/2017: Doc 29: ATTORNEY, Richard L. Herz, [27], in place of attorney Benjamin Hoffman, SUBSTITUTED.[1979253] [17-424] [Entered: 03/01/2017 10:07 AM]

03/01/2017: Doc 30: ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellee Esther Kiobel, FILED. Service date 03/01/2017 by CM/ECF.[1980050] [17-424] [Entered: 03/01/2017 04:30 PM] ONE PAGE

03/09/2017: Doc 31: MOTION, to expedite appeal, on behalf of Appellee Esther Kiobel, FILED. Service date 03/09/2017 by CM/ECF. [1985499] [17-424] [Entered: 03/09/2017 12:37 AM] 21 PAGES

03/09/2017: Doc 33: OPPOSITION TO MOTION, to expedite appeal [31], on behalf of Appellant Cravath, Swaine & Moore, LLP, FILED. Service date 03/09/2017 by CM/ECF. [1985896] [17-424] [Entered: 03/09/2017 11:28 AM] 12 PAGES

03/09/2017: Doc 37: MOTION ORDER, transferring appeal to the expedited appeals calendar; Appellant’s brief due 04/13/2017, Appellee’s brief due 05/18/2017, and any reply brief due 06/01/2017 [31] filed by Appellee Esther Kiobel, by RJL, FILED. [1986198][37] [17-424] [Entered: 03/09/2017 03:55 PM] ONE PAGE

04/03/2017: Doc 39: NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Cravath, Swaine & Moore, LLP, FILED. Service date 04/03/2017 by CM/ECF. [2002928] [17-424] [Entered: 04/03/2017 02:09 PM] ONE PAGE

04/03/2017: Doc 40: ATTORNEY, Sean Marotta for Cravath, Swaine & Moore, LLP, in case 17-424, [39], ADDED.[2002989] [17-424] [Entered: 04/03/2017 02:49 PM]

EXTRACTS FROM DOC 37 – MOTION ORDER

Appellee moves for an expedited appeal and proposes a briefing schedule with the opening brief due March 16, 2017, the opposing brief due March 30, 2017, and the reply brief due April 6, 2017. Appellant opposes Appellee’s proposed schedule and requests that the Court transfer the instant appeal to the expedited appeals calendar on the briefing schedule provided under Local Rule 31.2(b)(3).

IT IS HEREBY ORDERED that the instant appeal is transferred to the expedited appeals calendar. Appellant shall file the opening brief on or before April 13, 2017, appellee’s brief shall be filed on or before May 18, 2017, and any reply brief shall be filed on or before June 1, 2017.

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