ExxonMobil Corp. has lost its home-court advantage after a Dallas judge agreed Wednesday to move to New York City a multi-state lawsuit seeking decades of internal documents and communications.
In a decision issued Wednesday afternoon, U.S. District Judge Ed Kinkeade of the Northern District of Texas ruled that, after considering the jurisdictional issues raised, he would transfer the lawsuit to U.S. District Court for the Southern District of New York [No. 4:16-CV-469-K]. Attorneys General (AG) Eric Schneiderman of New York, who is leading the investigation begun in 2015, and Maura Healey of Massachusetts sought the transfer. Schneiderman is spearheading the climate change probe and another on ExxonMobil'sreserves reporting begun last year. Under New York's Martin Act, the state AG has extraordinary powers.
ExxonMobil, headquartered outside Dallas in Irving, had argued that Kinkeade take jurisdiction for the claims concerning whether the oil major committed consumer and securities fraud. After initially cooperating with the subpoena, ExxonMobil stopped producing documents for Schneiderman, who is leading the investigation, after asserting the probe is biased and in bad faith. A civil investigation demand by Healey is seeking communications and documents relating to climate change produced or received by ExxonMobil over the last 40 years.
"Exxon asserts that the attorneys general are conducting their investigations in an effort to get Exxon to change its policy position relating to climate change," Kinkeade wrote. "Exxon brings several causes of action against Attorney General Schneiderman and Attorney General Healey which include: conspiracy; violation of Exxon's first and fourteenth amendment rights; violation of Exxon's fourth and fourteenth amendment rights; violation of Exxon’s fourteenth amendment rights; violation of Exxon's rights under the Dormant Commerce Clause; federal preemption; and abuse of process.
"The merits of each of Exxon's claims involve important issues that should be determined by a court, however, this court is not the proper venue," Kinkeade wrote. However, he used the ruling to take a swipe at the investigation. The AGs have not been willing to share information regarding a March 2016 conference, AGs United for Clean Power, which was attended by climate change activists including former Vice President Al Gore.
ExxonMobil has argued that the investigations were started in bad faith and "claims that the ultimate goal of the attorneys general is to silence everyone in the oil and gas industry from debating the climate change issue at any level," wrote Kinkeade.
"Should not the attorneys general want to share all information related to the AGs United for Clean Power press conference to ensure the public that the events surrounding the press conference lacked political motivation and were in fact about the pursuit of justice?"
The AGs, said the judge, "should want to remove any suspicion of the event being politically charged since it was attended by former Vice President Al Gore, a known climate change policy advocate in the political arena, Mr. Peter Frumhoff, a well-known climate change activist, and Mr. Matthew Pawa, a prominent global warming litigation attorney who attended a meeting two months prior to the press conference at the Rockefeller Family Fund to discuss an 'Exxon campaign' seeking to delegitimize Exxon as a political actor."
However, the case involves "important issues" that should be considered in New York because of the alleged collusion.
The court's decision "is a major blow to Exxon’s efforts to distract from the valid investigations into whether the company lied to the public and its investors about the dangers of global warming,” said 350.org's Jamie Henn, strategic communications director. “Instead of coming up with more bogus legal maneuvers, Exxon should comply with the attorneys general requests," which include providing all of former CEO Rex Tillerson's emails, including those under an alternate email alias he used under "Wayne Tracker." ExxonMobil said the email alias was used for internal correspondence.
ExxonMobil in December sought to subpoena 350.org in an attempt to gain access to the environmental organization’s emails. 350.org filed a motion to quash the subpoena claiming First Amendment rights to advocate for the public interest. The motion is pending in the New York court.
"The public deserves the truth about what Exxon knew," Henn said. "The company is arguing we want to silence them, but it's just the opposite. We want them to speak clearly and honestly about their track record of climate denial so we can get to work solving the problem."