Today, there was another delay in the Wiwa v. Shell trial, causing teeth-gnashing by journalists who have dedicated resources to cover the trial, hand-wringing by Ogoni people and human rights & environmental justice supporters worldwide, and head-scratching by nearly everyone else following along.
The trial had been set to begin with jury selection last Wednesday, May 27th, in the U.S. District Court for the Southern District of New York in Manhattan. Last Tuesday, there was an 11th-hour postponement with no new trial date set. However, the court set a pre-trial conference with the two opposing counsel for Monday, June 1st. Late last Friday, the court announced that the Monday conference would be pushed back to Wednesday, June 3rd at 2pm. And today, that conference was canceled.
Presiding Judge Kimba Wood’s order says that the “trial remains adjourned sine die” which, with its poetic-sounding legal Latin, means that the trial is postponed indefinitely.
Does that mean it’s over, finished, done?!
No. But we really don’t know exactly what it means.
It could mean another court order is right around the corner that will set another pre-trial conference, or even set a date for jury selection – and the trial – to begin.
Or, as has been the subject of much speculation, the next thing we hear about may be an out-of-court settlement.
That would certainly cause more hand-wringing and teeth-gnashing but it would also make sense. Certainly, Shell doesn’t want this case to go to trial. They never did, and they filed motion after unsuccessful motion to try to keep it from happening. After losing the legal battle thus far, it’s easy to imagine that Shell would do anything it could – offering many millions of dollars of restitution to the plaintiffs comes to mind – to keep the trial date from ever coming.
And while many of us want to see Shell face the music for the crimes it has committed in Ogoni, we should also recognize that there are good reasons that the plaintiffs might want to settle and be done with this long legal struggle. I won’t enumerate them here, but I’ve reviewed the myriad reasons in my head and I would suggest that you do it yourself, if like me, your first thought on the idea of a settlement is that it’s some sort of terrible betrayal of everything the Ogoni people have fought for.
It’s not. And if there’s a settlement, we should be ready to support the plaintiffs as they declare victory, and work to keep the heat on Shell to end the crimes it continues to commit in communities cursed by the oil beneath their lands.
If Shell settles, they’ll try to spin it as if they were victims of a spurious extortion campaign by a bunch of trial lawyers using poor Nigerians as pawns (just watch). But if Shell – with its vastly superior resources – decides to settle, it will be because they realized that the evidence against them was overwhelming, and they made a deal that would allow them to pretend they’re innocent, and, well, play the victim.
Shell is victim only to hubris and to the self-destructive belief that it will forever get away with making human rights abuses and environmental devastation part of its business as usual.
Like many others, I am eager to see a trial. As determined as I am to support the plaintiffs who have known so much suffering and struggle, it would be hard to conceal my disappointment at news of a settlement. So I’m going to focus on the much more exciting possibility… that the trial has been delayed in order to broaden the case.
Okay, I’m not a lawyer so I don’t know if ‘broaden the case’ really describes what I mean. But today, the Second Circuit Court of Appeals added a very interesting wrinkle to the case that could explain the delay.
From a press release from the Center for Constitutional Rights, co-counsel on the lawsuit against Shell:
Today, the Second Circuit Court of Appeals overturned the District Court decision dismissing the Wiwa v. Shell plaintiffs’ claims against Shell Petroleum Development Company of Nigeria, Ltd. (Shell Nigeria). The District Court had dismissed the case against Shell Nigeria on March 4, 2008, finding it did not have jurisdiction over the company because the plaintiffs had failed to establish that Shell Nigeria was doing sufficient business in the United States to justify trying them in U.S. courts. The effect of the appellate court decision is to permit the plaintiffs to seek further information to establish Shell Nigeria’s connections to the United States.
When the plaintiffs filed the lawsuit against Shell, they charged Royal Dutch Shell, Shell Petroleum Development Company of Nigeria (Shell Nigeria), and Brian Anderson, head of Shell Nigeria when the abuses at issue took place. The District Court dismissed the charges against Shell Nigeria (allowing the other cases against Royal Dutch Shell and Mr. Anderson to go forward). Under the Alien Tort Statute, a company has to have a certain level of interest in the United States to come under the federal court’s jurisdiction. The District Court said that Shell Nigeria didn’t. But the plaintiffs argued on appeal that they should be granted the opportunity to do more discovery to determine whether or not this is actually the case. And according to the decision by the Circuit Court today, the plaintiffs prevailed.
Now the issue is kicked back to the District Court. And here’s where it gets really interesting.
It’s possible that Chief Judge Kimba Wood – aware that a decision was coming from the Circuit Court on this key issue – delayed the trial in order to make time to consider whether Shell Nigeria should be a defendant.
Of course, all the parties remain tight-lipped, so I really have no way of knowing. And I speculate partly for my own sanity.
So we all wait on pins and needles to hear what’s next - whether news of a settlement or the opening of this landmark trial or the confirmation of a formal delay to consider whether Shell Nigeria will join its parent company in the dock. Any which way it turns out, the Ogoni people have already put Shell on trial and found them guilty. And they’ve been witness to Shell’s crimes in ways that I hope and pray no-one else will again.
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*This report was written on June 3rd 2009 by Shellguilty.com coordinator, Han Shan
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