Top U.S. Law Firms Battling to Frustrate Esther Kiobel Ligitation Against Shell

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.

Credit: Royaldutchshellplc