Recent developments in the New York Attorney General’s (NYAG) lawsuit against ExxonMobil provide “further evidence of the coordinated, ongoing assault on ExxonMobil’s First Amendment rights,” by the NYAG and Massachusetts Attorney General (MAAG) Maura Healey, a letter filed by the company last Friday states.

Filed in the company’s case against MAAG Maura Healey and NYAG Leticia James in the U.S. Second Circuit Court of Appeals, the letter cites examples that “demonstrate the ongoing nature of NYAG and MAAG’s unconstitutional conduct” against the company.

Recall that this case – ExxonMobil Corp. v Healey – was filed as a countersuit against the NYAG and MAAG over the baseless fraud investigations they launched in 2015 and 2016, respectively, on the basis that their investigations infringed on the company’s First Amendment right to free speech. Essentially, the company is arguing that the AGs’ investigations stem from their disagreeing with ExxonMobil’s public statements and past perspective, i.e. its opinion, on climate change. The case is currently before the U.S. Second Circuit Court of Appeals, awaiting oral arguments to be scheduled.

That said, it’s recent developments from the NYAG’s sham case against the company that bolster ExxonMobil’s argument in this case even further, which is that the NYAG and MAAG are abusing their powers to bring politically-motivated and unconstitutional actions against the company.

A “Calculated Ploy”

ExxonMobil’s letter takes aim at MAAG Healey’s recent announcement that her office was suing the energy company for several climate change-related claims – made three years after her initial investigation was launched.  As if that timing wasn’t suspicious enough, Healey filed the lawsuit against ExxonMobil on the third day of the since-flopped NYAG trial.  This was not only a blatant attempt to garner media attention by latching onto the NYAG trial, but also functioned to strategically distract the company as it defended its reputation in a Manhattan courtroom – and also likely distract activists and the general public as to how poorly the NYAG’s case was going.

As attorneys for the company wrote in their letter to the Second Circuit:

“Under Massachusetts, law MAAG is required to provide notice and an opportunity to meet and confer prior to filing a lawsuit. MAAG provided that notice just days before the NYAG trial began in a calculated ploy to (i) interfere with ExxonMobil’s trial preparations, (ii) garner media attention for itself, and (iii) deprive ExxonMobil of its right to meaningfully meet and confer.” (emphasis added)

What’s more, neither Healey nor her office “interviewed a single ExxonMobil employee or gathered one piece of evidence from the company,” in the several years between when her investigation was announced and the lawsuit being filed. Instead, Bloomberg notes that the MAAG “gathered information from banks, advertising agencies, New York’s investigation and other sources.” This means that instead of basing her conveniently-timed lawsuit against the company on evidence gained through primary sources, MAAG put forward a baseless complaint hurriedly built around her preconceived notions about the company. According to the letter:

“In the three and a half years since the tolling agreement was executed, MAAG never expressed a sense of urgency to resolve its potential claims and did not interview a single ExxonMobil witness or require ExxonMobil to produce a single document. MAAG’s rush to the courthouse during the NYAG trial, despite having obtained no evidence during its so-called investigation, provides further proof of the pretextual nature of MAAG’s official actions. And its complaint—which objects at length to ExxonMobil’s views on climate policy— supports ExxonMobil’s First Amendment claims.” (emphasis added)

“Slanderous Hyperbole”

The letter also addressed the NYAG trial against ExxonMobil, which sputtered to a close two weeks ago.

“At that trial, NYAG promised to unmask “a longstanding fraudulent scheme,” amounting to a “Potemkin village” to deceive investors about climate change, that “was sanctioned at the highest levels of the company.” But the trial unmasked NYAG’s allegations as slanderous hyperbole. In its summation, NYAG proceeded as though it had not brought any fraud counts against ExxonMobil.” (emphasis added)

In particular, the company railed against the plaintiff’s decision to drop two of its four fraud claims, which Axios’ Amy Harder has called “already a win for Exxon.” As the letter notes:

“NYAG’s decision to bring those charges and proceed to trial with baseless counts it knew it could not prove corroborates the pretextual nature of NYAG’s investigation of and litigation against ExxonMobil. With its concession that ExxonMobil did not commit fraud, NYAG can no longer contend that its fraud allegations insulate it from scrutiny under the First Amendment. NYAG’s actions at trial provide further factual support for ExxonMobil’s claim that attorneys general have abused the powers of their office in an attempt to suppress ExxonMobil’s speech.”

This filing comes two weeks after ExxonMobil attorney Ted Wells called the NYAG case “a cruel joke” during closing arguments and admonished the NYAG’s office for dismissing two of its charges at the eleventh hour after realizing it failed to prove their merit. As Wells stated:

“Your Honor, the executives who came to court, some of whom were retired, didn’t have to show up, came here because they wanted to clear their reputations, I submit have a right to either a stipulation that says there was no intentional misconduct or a court ruling. They can’t put us through the whole trial, I submit, and then at the last minute recognize they didn’t prove the claims. And then say I’m going to dismiss it. And that leaves both a cloud over the reputations of the people.”

Conclusion

ExxonMobil’s recent filing demonstrates that the NYAG and MAAG lawsuits are an abuse of power and an assault on the company’s First Amendment rights aimed at advancing a political agenda and promoting unfounded activist claims rather than the truth.