#ExxonKnew – Something Wicked This Way Comes

There’s a trial about to start on Oct 21st in Manhattan, and this promises to be a big deal. It’s the group of state AG’s that have been ganging up on Exxon-Mobil in that “ExxonKnew” litigation. Attorney Chris Horner has been following this, and digging up all sorts of FOIA docs on the issue and posting at Climate Litigation Watch. If you aren’t following this website, or the CLW Twitter feed, you should be.

CLW readers are aware of the new, plaintiffs’ bar-driven push to claim an ability to attribute climate change — all the way down to responsibility for individual storms, weather apparently is climate when it’s the right kind of weather — just as the first AG #ExxonKnew trial approaches, later this month.   Obviously, that case has become an accounting dispute, and has little to nothing to do with climate. It does however seem that certain parties would like to orchestrate some climate background music to give a different sense and, of course, when actual climate trials do occur plaintiffs’ lawyers hope to point juries to specific storms, that they may have personally experienced, as less abstract and so a necessary part of the lawyers’ appeals to emotion.

Consider this during the media mania as the first AG #ExxonKnew trial kicks off the week of October 21 in New York — which has devolved into an accounting dispute, despite the originators’ grand ambitions, as it was also ordered up by the climate tort bar (see also here, and here). Although not actually at issue in the upcoming case, media activism suggests someone or someones thought it would be helpful to whip up some climate fear in the run-up thereto.”

As CLW reported last week, D.C. Attorney General Karl Racine announced to environmentalist pressure groups his intention to join the club of attorneys general suing ExxonMobil, and presumably other energy companies, for various causes of action he might conjure/follow in the footsteps of.

This likely signaled an intention to ride or try and assist the news cycle surround a trial beginning later this month in Manhattan against ExxonMobil for statements (or the absence thereof) regarding climate change that allegedly defrauded investors and the public.

Speaking at an event hosted by the D.C. chapter of the Sierra Club, Racine confirmed his office is in the process of vetting outside counsel to assist in this campaign. In February, OAG released an RFP for “legal services in support of OAG’s investigation and potential litigation against ExxonMobil Corporation…for potential violations of Consumer Protection Procedures Act or other District laws in connection with Exxon’s statements or omissions about the effects of its fossil fuel products on climate change.”

Any award will be based on a contingency fee, a circumstance generating all manner of perverse incentives to both the contractor and OAG. The RFP allows for a maximum of $25,000,000 in fees for the successful contractor (plus no more than $1,000,000 in reimbursable expenses, mister). So, at least there are limits.

Previously, CLW revealed the contract between San Francisco City and County and the plaintiffs’ law firms Sher Edling LLP and Altshuler Berzon LLP. Sher Edling, other public records also obtained by Government Accountability & Oversight, P.C., show, is actively recruiting cities to file suit against energy companies seeking an enormous settlement for having caused ‘global warming.’

That contract promises $25 million of the first $100 million in settlement, $7.5 million of the next $50 million, and 7.5% of any millions over $150 million. As you can see, the DC contract is simply not nearly as appealing — though, of course, it seems quite possible there will be overlap of attorneys such that the DC and other cities’ fees, in the event of a successful extraction of a company’s resources to make this all go away, will be so much gravy.

CLW readers will be familiar with cozy relationship between the D.C. Attorney General’s Office and the climate litigation industry. Racine has already accepted a Bloomberg-funded “Special Assistant Attorney General” for climate prosecutions (SAAG) funded by billionaire climate activist and political donor Michael Bloomberg.

As CLW has previously reported, that arrangement does not appear to be legal, i.e., DC OAG didn’t follow the guidelines set in place by Mayor’s Memorandum 2015-001. AGRacine has also entered into a questionable agreement with noted climate warrior Robert B. McKinstry, Jr. that also failed to comply with the Mayor’s Memorandum, if public record productions are to be believed.

Given OAG’s inability to comply with requirement of the Mayor’s Memorandum on donations, there are yet more reasons for anyone with an interest in fair and transparent law enforcement to be troubled by a contract offering up to $26,000,000 of a potential settlement.

Again, watch for more on this soon given the trial in an analogous case in New York is set to begin the week of October 21.