ExxonMobil is urging the Texas Supreme Court to restore a trial court ruling that would allow it to conduct pre-suit discovery to examine an alleged conspiracy involving leading plaintiffs’ attorney Matt Pawa and the California municipalities suing the company for climate change impacts.
In a petition filed on October 5, the company asked the state’s highest court to review an appellate court’s decision to deny its petition to evaluate potential claims for constitutional violations, abuse of process, and civil conspiracy on the part of the California parties under Texas Rule of Civil Procedure 202:
“Review is necessary to safeguard Texas’s sovereign interest in adjudicating lawsuits that affect the speech of its citizens and a core component of its economy. The court of appeals recognized that the potential defendants’ serial tort litigation against eighteen Texas oil-and-gas companies amounted to ‘lawfare’ that sought to impose their preferred climate and energy policies on Texas.”
A three-justice panel of the Second Court of Appeals in Fort Worth dismissed ExxonMobil’s Rule 202 petition in June, overturning Tarrant County District Court Judge H. Wallace Jr.’s 2018 ruling that found the California municipalities may have “brought these lawsuits for an improper purpose” and that the petition 1) was warranted and 2) belonged in Texas district court.
Despite calling California’s public nuisance lawsuits “lawfare” and acknowledging its “impulse to safeguard an industry that is vital to Texas’ economic well-being,” the appellate court concluded that Pawa and the California officials “lack the requisite minimum contacts with Texas to be subject to personal jurisdiction” in the state, and therefore cannot be compelled to cooperate in pre-suit discovery.
“Assault on the Texas energy industry is an assault on Texas’s sovereignty”
Recall that ExxonMobil is accusing the California actors of 1) either exaggerating the risks of climate change in their lawsuits against energy companies or downplaying the risks of climate change when issuing municipal bonds to investors, and 2) following the playbook created by anti-fossil fuel activists at the infamous 2012 conference held in La Jolla, Calif., where activists laid out their plans to bring legal action against energy companies and stifle debate on climate change.
The golden-state municipalities have led the charge in this litigation campaign since 2017, with eight cities and counties in the state pursuing lawsuits. Activist trial lawyer Matt Pawa, meanwhile, originally represented Oakland and San Francisco in their lawsuits until they replaced him with rival Sher Edling LLP. He also participated in the La Jolla conference, previously sued ExxonMobil over climate related issues, and attended a 2016 Rockefeller strategy meeting that discussed how to “delegitimize” the energy industry.
In its petition to the Texas Supreme Court, ExxonMobil explained that the Second Court of Appeals errored in denying its Rule 202 petition earlier this year, arguing that the California parties’ “purposeful and tortious conduct” aimed at altering Texas policy satisfies the jurisdictional threshold:
“The potential defendants intentionally targeted Texas with lawsuits meant to suppress the speech of the Texas energy sector. That conduct ‘creates the necessary contacts with’ Texas such that Texas courts may exercise personal jurisdiction.” (emphasis added)
Further, the company told the court that the California parties’ “assault on the Texas energy industry is an assault on Texas’s sovereignty” as it “seek[s] to wrest Texas policy decisions from Texas citizens by diminishing the pocketbooks and stifling the speech of its industry.”
Conclusion
In denying ExxonMobil’s Rule 202 petition, the Second Court’s Chief Justice Bonnie Sudderth filed a concurring opinion at the time, in which urged “the Texas Supreme Court to reconsider the minimum-contacts standard that binds us.” If the Texas Supreme Court does as Justice Sudderth recommends and grants review of the petition, there could be a possibility that it resuscitates the Rule 202 petition and the case proceeds in trial court, which would be the first step in revealing the inner workings of the climate litigation campaign’s highly-coordinated efforts.
