By Karen Savage
A state judge will allow New York Attorney General Letitia James to file a motion to dismiss allegations by Exxon that her office engaged in prosecutorial misconduct in its suit against the oil giant for allegedly deceiving its investors about the risks of climate change.
Until he rules on that motion, New York Supreme Court Judge Barry Ostranger said he will also allow Exxon to seek discovery related to those allegations.
The claims of misconduct were included in Exxon’s answer to the state’s lawsuit, which was filed last October after a long investigation into potential securities fraud by the company. Those misconduct claims were also made by Exxon in a federal case the company filed against the New York attorney general, a case that was dismissed last year by U.S. District Judge Valerie Caproni.
James contends that Caproni already rejected Exxon’s arguments against the investigation and lawsuit. Exxon’s defenses include the allegations of prosecutorial misconduct, a contention that the AG is selectively enforcing the law and is violating Exxon’s First Amendment right to free speech and Fourteenth Amendment right to due process rights.
“The U.S. District Court for the Southern District of New York has already rejected the precise theory on which Exxon grounds its selective-enforcement claims here,” wrote Kim A. Berger for the attorney general’s office.
Exxon has tried several legal avenues to stop New York’s lawsuit and has also unsuccessfully sued to halt a similar investigation by Massachusetts Attorney General Maura Healey. Healey is looking into whether Exxon violated state consumer protection laws by misleading consumers on the impacts of its products on climate change and is investigating whether the company also misled investors.
Exxon’s case against the attorneys general was first filed in the U.S. District Court for the Northern District of Texas in June 2016, but was later transferred to New York.
In her ruling, Caproni wrote that Exxon’s allegations that the investigations violated their First, Fourth and Fourteenth amendment rights were “implausible” and brought “on the basis of extremely thin allegations and speculative inferences.”
Exxon did not respond to a request for comment.
James’ office said Exxon’s latest attempt to attack its motivations is irrelevant to proving or disproving the allegations against the oil giant.
“It is instead an attempt to muddy the issues and waste [the attorney general’s] resources,” wrote Berger in the letter, adding that “Exxon’s requests for discovery to support these patently defective defenses would simply ‘harass or unduly burden’ [the attorney general].
“Allowing Exxon to pursue discovery that has no discernible basis in law would set a precedent for virtually any defendant in an enforcement action to initiate an onerous investigation of the investigator and risk disrupting law enforcement.”