Climate change ruling may boost energy companiesPosted On: Dec. 17, 2019 7:53 AM CST
Exxon Mobil Corp.’s victory in a climate change case brought by New York’s attorney general doesn’t end the oil giant’s environment-related legal fights, but it may give pause to plaintiffs considering filing lawsuits against energy companies, experts say.
While the suit alleging misrepresentation in disclosures about climate change is fact specific and Exxon Mobil still faces cases in other states, the Irving, Texas-based company’s willingness to go to trial may bolster resistance by corporations facing similar litigation, they say.
In his Dec. 10, 55-page ruling in People of the State of New York et al v. Exxon Mobil Corp., Justice Barry R. Ostrager in New York Supreme Court – a state trial court – said the New York attorney general charged that Exxon Mobil had engaged in a “longstanding fraudulent scheme” that was “sanctioned at the highest levels of the company” to “create the illusion that it had fully considered the risks” of climate change when in reality it “knew that its representations were not supported by the facts and were contrary to its internal business practices.”
The judge concluded, however, that the state’s accusations were “without merit.” The attorney general “has failed to establish by a preponderance of the evidence” that the company violated the law “with its public disclosures concerning how Exxon Mobil accounted for past, present and future climate change risks.”
Attorney General Letitia James’ core allegation, according to the ruling, was that during the period from late 2013 through 2016, Exxon made “misrepresentations and omissions” material to investors about how it managed the risks of climate change and increasing regulations.
Judge Ostrager said also, however, that “Nothing in this opinion is intended to absolve Exxon Mobil for responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products.”
Exxon said in a statement issued last week that “Today’s ruling affirms the position Exxon Mobil has held throughout the New York Attorney General’s baseless investigation.”
Ms. James said in a statement, “Throughout this case we laid out how Exxon made materially false, misleading, and confusing representations to the American people about the company’s response to climate change regulations. Exxon’s inability to tell the truth further underscores the lies that have been sold to the American people for decades.”
The case is fact driven and based on a particular New York State law, “and so I don’t know that there’s a lot that we can learn from that other than being meticulous in internal documents about the various metrics a company’s using internally and externally,” said Priya Cherian Huskins, San Francisco-based senior vice president, D&O, for Woodruff Sawyer & Co.
That “seems to have been very important for Exxon Mobil’s defense,” she said. The court used the word “meticulous” in the ruling “and I think they used that on purpose,” she said.
Other big oil and gas companies “will have been following the Exxon Mobil litigation and are no doubt continuing to refine their internal and external metrics to meet the requirements of litigation,” Ms. Huskins said. “The bigger threat is for smaller, less resourced companies that may find themselves engaged in similar litigation, as these issues continue to have a lot of heat associated with them.”
Kevin LaCroix, executive vice president of RT ProExec, a division of R-T Specialty LLC, in Beachwood, Ohio, said rather than being a bellwether case that showed whether future claimants would be successful in climate change disclosure lawsuits, “it has more to do with the fundamental factual allegations that the plaintiff made.”
The judge found “there weren’t meaningful differences” between what was disclosed to the public and what was communicated internally, he said. “To me, it’s a very fact specific ruling,” which means you cannot generalize on the success of what future claimants allege in other cases, Mr. LaCroix said.
The ruling “may hearten” other defendants to challenge other cases, he said.
The decision is a good one, “not only in the limited context of suits by states attorneys general,” but also in terms of securities class action litigation, said Joseph P. Monteleone, a partner with Weber Gallagher Simpson Stapleton Fires & Newby LLP in Bedminster, New Jersey, who represents insurers in coverage disputes.
It is also a win for directors and officers liability insurers from “the defense side of the equation,” he said. “That being said, any lawyer on either side will probably try to argue that it’s very fact specific to Exxon Mobil’s situation, and therefore doesn’t have much precedential value,” he said.
Although the precedential value may be limited, “it has some practical value in terms of some of these other cases moving into a mediation or settlement posture. This basically tells investors and the regulators that a win is not so obvious a result.”
“From a purely legal standpoint, I think the decision is going to have pretty limited precedential value,” said Dan A. Bailey, a member of law firm Bailey Cavalieri LLC in Columbus, Ohio, who represents directors and officers and insurers.
The case was filed under the New York State securities statute, “so it’s not under the federal securities law, which has some important differences from” the state law “in terms of what needs to be proven,” said Mr. Bailey.
“It does confirm and send a strong message to both regulators and to the plaintiffs bar that at least Exxon – and it wouldn’t surprise me that other very large companies similarly situated to Exxon are willing to devote their seemingly unlimited resources and to take enormous potential risk to defend themselves,” Mr. Bailey said.
“This was, I’m sure, not inexpensive to defend,” he said.
“It could have a chilling effect on other claimants,” and “to the extent you do take away from this case the conclusion that disclosure-based claims involving climate change are going to have some significant hurdles to overcome,” it may encourage the plaintiffs bar to focus more on shareholder derivative suits.
He added, however, “If these types of derivative suits are successful, or get some judicial support, that’s a real concern for individuals because in most states … settlements and judgments in derivative suits are not indemnifiable.”
Exxon Mobil’s victory in the case is limited because it did get to trial and the company won on a relatively narrow and technical issue of corporate law, said Peter M. Gillon, a partner with Pillsbury Winthrop Shaw Pittman LLP in Washington, who represents policyholders in D&O litigation.
He added, however, “climate risk will affect share price, and this case is not in any way relief from that inevitability.”
Exxon Mobil is a defendant in two other cases. In October, the Massachusetts attorney general filed a case against the company on different grounds in Commonwealth of Massachusetts v. Exxon Mobil Corp. Exxon has had the case moved to federal court, although the Massachusetts attorney general is expected to seek tis return to state court.
In addition, there is also a putative securities fraud class action lawsuit filed against Exxon in U.S. District Court in Dallas in Pedro Ramirez v. Exxon Mobil Corp. et al.
“That Exxon Mobil is being sued in a variety of ways over its climate disclosures is not surprising,” said Ms. Huskins.
“It’s a very hot political issue and I think we should ultimately expect to see more suits against other oil and energy companies whose activities impact the climate, such as large manufacturers.”