FORT WORTH – California municipalities took aim at Texas-based speech by filing “baseless” climate change lawsuits and a Texas trial court was right to exercise personal jurisdiction over them, according to ExxonMobil’s recently filed appellate brief.
In July, several California cities and counties, who were found to be hypocrites by a Texas judge, filed briefs requesting the Second Court of Appeals dismiss ExxonMobil's effort to depose numerous officials and an attorney involved in orchestrating climate change litigation against the oil industry.
Climate change lawsuits, brought under the public nuisance theory, allege fossil fuel companies contributed to global warming-induced sea level rise and seek damages for past and future natural disasters, such as flooding.
However, despite such dire predictions, the plaintiffs failed to include the alleged near-certain doom in their bond offerings to potential investors, Exxon says.
On Jan. 8, Exxon filed a petition in Tarrant County District Court, seeking pre-suit discovery for a potential lawsuit against the California municipalities and officials and also Matt Pawa, a Hagens Berman attorney who is pursuing many of the cases on a contingency fee.
Pawa was instrumental in creating the “playbook” that includes efforts by the attorneys general of New York and Massachusetts, according to Exxon.
Exxon believes Pawa promoted his playbook to California municipalities, urging them to become potential plaintiffs in tort litigation against energy companies.
Exxon’s petition alleges the potential defendants engaged in a civil conspiracy by planning and then filing climate change lawsuits in California against co-defendants Chevron, BP, ConocoPhillips and Royal Dutch Shell.
The company further asserts California officials are talking out of both sides of their mouths - blaming Exxon for impending flooding disasters while not disclosing the alleged threat to possible investors in bond offerings.
In response to Exxon's petition, the municipalities filed special appearances, challenging the Texas trial court’s jurisdiction.
On March 14, Judge R.H. Wallace Jr., 96th District Court, denied all of the special appearances, prompting the appeal, court records show.
On July 6, the cities of San Francisco and Oakland filed individual briefs, while several other municipalities and officials banded together to file a collective brief.
The briefs question whether a state court can exercise “specific personal jurisdiction” over an out-of-state defendant, even one that directed a tort against an in-state resident.
Oakland argues in its brief that the trial court erred in accepting Exxon’s argument that the climate change lawsuits targeting oil companies “somehow should be deemed to be targeting Texas itself.”
The collective California public entities, the cities of Imperial Beach and Santa Cruz, along with the counties of Marin, San Mateo and Santa Cruz, contend that they have no offices in Texas or do business in the state.
The municipalities argue Exxon failed to meet its burden of establishing personal jurisdiction under the Texas long-arm statute, which allows the exercise of personal jurisdiction over a non-resident defendant.
Conversely, Exxon contends the trial court’s findings are “well supported by the law and ample evidence” and says its potential claims grow out of the “abusive litigation” brought by the California municipalities.
“The record shows that the Potential Defendants made purposeful contacts with Texas to chill expressive conduct in Texas and to obtain documents stored in Texas,” Exxon’s Sept. 26 appellate brief states. “ExxonMobil’s potential claims arose from the Potential Defendants’ purposeful contacts with Texas, including their efforts to suppress speech and associational rights within the state and obtain documents stored within the state.
“The Texas long-arm statute authorizes personal jurisdiction over nonresidents who commit a tort in whole or in part in the state.”
Exxon asserts the California parties seek the documents to pressure energy companies “to modify or silence their views on climate change.”
“Appellants’ unpersuasive attempts to challenge the trial court’s decision fall flat,” Exxon’s brief states. “The Potential Defendants purposefully directed their conduct at Texas by filing baseless lawsuits against ExxonMobil that are expressly aimed at Texas-based speech, property, and associational rights.
“ExxonMobil urges this Court to affirm the trial court in all respects.”
Texas is represented in part by Ralph Duggins of Cantey Hanger and Nina Cortell of Haynes & Boone.
The collective appellants are represented by Pete Marketos and Tyler Bexley, attorneys for the Dallas law firm Reese Marketos.
Oakland is represented in part by the Law Office of Steven K. Hayes in Fort Worth.
San Francisco is represented in part Robert Manley and Richard Kamprath, attorneys for the McKool Smith law firm in Dallas.
Appeals case No. 02-18-00106-CV
Trial court case No. 096-297222-18