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SDNY Judge Pauley Dismisses Esso Suit Against Nigerian Oil Company While Noting Discovery Violations

By Matthew Russell Lee, Patreon

SDNY COURTHOUSE, Sept 4 – There are no fewer that four big oil cases pending against the Nigerian National Petroleum Corporation (NNPC) in the U.S. District Court for the Southern District of New York. The cases involve arbitration awards and various oil fields; a backdrop includes longstanding human rights abuses by and allegations of corruption in Nigeria's oil sector.  

  On September 4, SDNY Judge William H. Pauley III dismissed one of the four cases against NNPC, the one brought by Esso Exploration  and Production Nigeria Limited and Shell Nigeria Exploration and Production Company  Limited’s (together, "Esso").

 While deferring the the Nigerian Court of Appeals vacatur of an underlying $2.7 billion award to Esso, Judge Pauley expressed sympathy for Esso's complaints and concern at NNPC's conduct during the discovery process.

  On Nigeria's higher court reversing the award, Judge Pauley went big picture, writing that "While this Court  is sympathetic to Esso’s situation, new interpretations of constitutional provisions and  amendments are commonplace in American jurisprudence. Criminal exclusionary rules are a  prime example. Before Mapp v. Ohio, 367 U.S. 643 (1961), evidence seized during an illegal  search was not inadmissible in state trials, and before Miranda v. Arizona, 384 U.S. 436 (1966),  statements obtained without full warnings of constitutional rights were not inadmissible. The  words in the Fourth and Fifth Amendments were the same before and after the Supreme Court  interpreted those provisions.... Accordingly, the Nigerian courts’ holdings do not offend  basic standards of justice from the point of view of the United States."

  On NNPC's discovery abuses, Judge Pauley wrote that "   because the requested inferences are mostly moot, and the only facts that are arguably  not moot are irrelevant to the discovery violations, this Court cannot impose the requested  sanctions.  But this Court would be remiss if it did not address NNPC’s conduct during  discovery. Specifically, NNPC stonewalled Esso’s requests for documents related to the  Committee at every turn. Despite this Court’s orders to produce the Committee documents, NNPC turned over a paltry four documents.... However, because the only relevant facts requested are not related to any  discovery violations, the motion must be denied."

  Judge Pauley concluded, "NNPC’s motion to dismiss is granted and Esso’s  motion for an adverse inference is denied. The Third Amended Petition is dismissed. The  parties are directed to advise this Court whether there is a continuing need for redactions in this  Opinion & Order by September 21, 2019."

 Perhaps the removal of redactions will cast more light on this case, and the fate of the other three NNPC cases in the District. This case is, or was, Esso Exploration and Production Nigeria Limited et al. v. Nigerian National Petroleum Corporation, 14-cv-8445 (Pauley).

Back on July 16 Inner City Press sought to attend and cover a status conference in one of the cases, Statoil and Texaco v. NNPC, 18-cv-02392 before SDNY Judge Richard M. Berman. But the matter was put over until July 23 at noon.   

  When Inner City Press arrived at noon, both the plaintiffs and defendants tables were full; the courtroom was otherwise empty.   

The law firm for Texaco and Statoil, Freshfields Bruckhaus Deringer US LLP quickly told Judge Berman that the proceeding should be off the record and "in camera."   

 On August 6, the transcript became available:

Mr. Friedman: ...the respondents would prefer to have those discussions in camera off the record, if possible.

THE COURT: So, you know, our preference is always to have an open courtroom, and for hte moment I don't have enough information that would warrant a change, but why don't we say this. It is a public courtroom and we do have a member of the press here, in fact, a blogger. So if there is something you don't want to discuss, just don't say it, for openers, and then we'll see where we are."

  Yes, we will. How will Judge Pauley's September 4 decision impact this and the Nigerian National Petroleum Corporation cases before SDNY Judges Stanton and Kaplan? Watch this site. The full case name is Statoil (Nigeria) Limited and Texaco Nigeria Outer Shelf Limited v. Nigerian National Petroleum Corporation, 18-cv-02392 (RMB).

Footnote: Ironically, the Nigerian government through its Mission to the UN has argued elsewhere in the SDNY that the recent elections explained it failure to even respond to a lawsuit by a young New Yorker run over by a Nigerian Mission vehicle with both registration and insurance expired.  Here's that story, July 10:

A few blocks from the United Nations on 49th Street and Second Avenue on 6 April 2018 Jennifer A. Edward was heading to her work as a lawfirm paralegal when a Nigerian Mission to the UN vehicle struck her, causing serious injury.    The vehicle's registration and insurance were both expired, in violation of the U.S. Diplomatic Relations Act.

The driver who was working for Nigeria's Mission had previously had accidents. But Nigeria and its mission refused to pay, or even fo months to respond to the lawsuit that was filed, and legally served as far away as Nigeria. Call it impunity, so prevalent in and around the UN.    

On July 10 the case came up before U.S. District Court for the Southern District of New York Judge Paul G. Gardephe. While denying Ms. Edward's motion for default judgment, Judge Gardephe essentially mocked the Nigerian Mission's argument that they needed more time to explore the issue of pre-existing condition.    

Ms. Edward is in her 20s, and has run a New York City marathon. The Nigerian mission in belated filings with Judge Gardephe has tried to blame their failure to response on the recent elections leading to the continuation of rule by President Buhari.    

Inner City Press, having seen Buhari's administration engage in illegal refoulement to Cameroon, unremarked on by the UN's Nigerian Deputy Secretary General Amina J. Mohammed, and having seen the UN claim impunity for cholera in Haiti and roughing up and banning the Press in New York, went to cover the July 10 proceeding.   

Afterward it spoke generally with Ms. Edward's lawyer Scott A. Harford. He explained the difficulty of getting the lawsuit served in Nigeria, and the lack of responsiveness by the U.S. Mission to the UN which is supposed to ensure that other countries' Missions to the UN at least maintain car insurance.

The case moved to Magistrate Judge Debra C. Freeman, more on Patreon here, and Inner City Press covered its first conference and will continue to cover and pursue this and other related cases.


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