The Texas Supreme Court today denied Exxon Mobil’s petition for review of a Fort Worth Court of Appeals opinion holding that the plaintiffs, various California local governments, do not have sufficient minimum contacts with Texas so that Texas courts could exercise personal jurisdiction. TCJL filed an amicus curiae brief urging SCOTX to accept review and reverse the court of appeals. As you may recall from our previous reporting, this case arises from a lawsuit filed in a California state court against ExxonMobil, ConocoPhillips, Shell, and 15 other Texas-based oil and gas producers. The plaintiffs, several California municipalities and counties headed by the City of San Francisco, seek billions of dollars of relief from the industry for future rises in sea levels allegedly caused by climate change, although their bond disclosures state that the future effects of climate change are uncertain.
In response to the lawsuit, ExxonMobil commenced a proceeding under Rule 202, Texas Rules of Civil Procedure, in a Midland state court seeking limited pre-suit depositions of the individual plaintiffs and document production from the municipal and individual plaintiffs to preserve evidence for potential tort litigation against the plaintiffs for viewpoint discrimination against ExxonMobil and the other producers. ExxonMobil contended that the plaintiffs’ have engaged in intentional tortious conduct and abuse of process to chill or affect its speech in violation of the U.S. and Texas Constitutions. The trial court found that the defendants were subject to personal jurisdiction in Texas and ordered limited discovery pursuant to Rule 202. The Fort Worth Court of Appeals reversed, holding that the defendants did not have sufficient minimum contacts with Texas so that Texas courts could exercise personal jurisdiction, though the court of appeals pointedly commented that the defendants have engaged in “lawfare” by attempting to regulate an industry through litigation rather than legislation.
The California lawsuit is part of a national effort to recruit local governments and state attorneys general to sue major energy producers led by Boston-area attorney Matthew F. Pawa, a partner in the Seattle-based firm of Hagens Berman. The court of appeals described in great detail Pawa’s involvement in recruiting plaintiffs for the lawsuit, providing an anatomy of an orchestrated and premediated lawfare campaign (for the details, refer to our post on October 6, 2020). TCJL’s brief called out this outrageous behavior for what it is: a concerted effort to use the courts to effect policy changes that they cannot achieve by the appropriate constitutional methods: the ballot box and the legislative process.