One Of The Stupidest Litigations In The Country Dies With A Whimper

One of my recurring missions is the effort to assist the readership in identifying the stupidest litigation that has been brought anywhere in this big country. Mostly this effort has resulted in nominating for the title cases that in some way involve issues of “climate change” or, in other words, the idea that if we only sue the right bad guy for enough money we can improve the weather. I mean, that’s pretty hard to top in the stupid category. For some examples in this line, see here and here.

A problem with these types of cases is that, as stupid as they are, they tend to kick around the courts for years without much happening. Often, the courts just don’t know what to do with them. Should they dismiss a case right at the outset without ever giving the plaintiff his or her “day in court”? When that happens there generally is an appeal, and often a remand, not because there is necessarily any merit to the case, but only because the courts hesitate to cut a plaintiff off so short. Or alternatively, should a court allow a lengthy period of “discovery,” where the plaintiffs get to requisition vast quantities of documents and rummage through them looking for something embarrassing to the defendant? Such discovery can go on for years, during which the case sinks out of public view.

So it’s actually highly unusual when one of these litigations that I have put in the “stupidest” category proceeds to a full trial on the merits, complete with live witnesses testifying for weeks on end in a courtroom in front of a judge. However, that just happened in a case that I covered in an October 22 post titled “A Serious Contender For Stupidest Litigation In The Country Goes To Trial.” The occasion for that post was the opening statements in the trial, which I had attended that day in the New York State Supreme Court for New York County. (“New York County” is fancy lawyer talk for Manhattan.) Today, the judge in the case, Barry Ostrager, rendered his decision.

To be fair, this particular case was only very peripherally about trying to use the litigation process to change the weather, although that didn’t make this one any less stupid. This was the case brought by the New York Attorney General against Exxon, claiming that “Exxon knew” about the risks of climate change and its own role in same, and hid those risks from the public. That certainly sounds nefarious. Here is a picture of demonstrators outside the courthouse on the day of the opening statements:

As lawyers among the readership will recognize, the big flaw here was that companies generally have no obligation to educate the general public on policy issues. So what’s the legal claim against Exxon? The AG started an investigation with big fanfare and a press conference way back in March 2016, and then proceeded to flail around for three years demanding millions of documents while changing the theory of the case multiple times. (For more details, see the October 22 post.) By the time the trial started in October 2019, the legal theory had been limited to the idea that Exxon defrauded its investors (not the general public) by using one metric for the cost of carbon emissions when publicly projecting its future corporate prospects, but a different metric internally for purposes of evaluating prospective investments. Got that? And, even if true, why exactly should anybody care?

Here is a link to Justice Ostrager’s opinion. He makes short work of the AG’s case. I would say that he does it in much more moderate and measured tones than I would have used — but then, a New York State court judge has good reason not to gratuitously offend the AG when ruling against her. I’ll give you a few choice quotes:

Significantly, there is no allegation in this case, and there was no proof adduced at trial, that anything ExxonMobil is alleged to have done or failed to have done affected ExxdnMobil's balance sheet, income statement, or any other financial disclosure. More importantly, the Office of the Attorney General's case is largely focused on projections of proxy costs and GHG costs in 2030 and 2040. No reasonable investor during the period from 2013 to 2016 would make investment decisions based on speculative assumptions of costs that may be incurred 20+ or 30+ years in the future with respect to unidentified future projects. . . .

ExxonMobil's disclosures were not intended to enable investors to conduct meaningful economic analyses of ExxonMobil's internal planning assumptions, and no reasonable investor would have viewed speculative assumptions about hypothetical regulatory costs projected decades into the future as "significantly alter[ing] the total mix of information made available." 

And as Justice Ostrager notes more than once, in a case supposedly about defrauding investors, the AG failed to produce as a witness a single investor who asserted he would have made a different investment decision if only he had known about these future carbon cost assumptions.

Really, the whole case was an embarrassment to the New York AG’s office, never seriously meant to accomplish any bona fide policy goal, and only intended as a charade to pretend to green activists to be “doing something” about evil fossil fuel companies. That’s how low our AG’s office has sunk.

Will the AG appeal? Excellent question. After a full trial, I doubt that there is much for the AG to complain about to the appellate court.