kinkeade hon

bench slapped?

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Exxon’s Conspiracy Charges Aim To Derail Climate Lawsuits - DeSmog

by David Halperin, crossposted from Republic Report

Oil giant ExxonMobil is engaged in unprecedented efforts to sue and harass in court the very people who are investigating and suing the company over global warming. Faced with determined efforts by states and localities to hold it and other fossil fuel companies accountable for contributing to, and concealing the evidence of, climate change, Exxon is crying foul, contending that it’s the victim of politically- and financially-motivated conspiracies.

But in reality there are no improper schemes behind the cases against Exxon. Instead, what’s troubling is an apparent effort by Exxon, one of the world’s wealthiest corporations, and its powerhouse corporate lawyers, to avoid a courtroom reckoning by making specious legal arguments and outspending their foes in the legal arena.

Through its attorneys at New York’s Paul Weiss Rifkin Wharton and Garrison, and Texas-based firms Haynes & Boone and Cantey Hanger, ExxonMobil has sued the attorneys general of Massachusetts, New York, and the U.S. Virgin Islands. And the company has recently targeted for depositions and document subpoenas, and threats of more lawsuits, numerous state officials, private attorneys, and advocates.

Exxon’s legal counterattack began after the Massachusetts, New York, and Virgin Islands AGs started investigating whether Exxon misled consumers and investors about the dangers of global warming and the potential impact of those dangers on the company’s bottom line. Investigative reporting in 2015 showed that Exxon scientists have known, and told Exxon management for decades, that burning fossil fuels was heating up the planet, but rather than educate the public on the dangers and change its business strategy, Exxon instead spent millions supporting efforts to question and deny the science of climate change. The state AGs also started investigating whether ExxonMobil has properly accounted for its oil reserves in the wake of global price drops and evidence of global warming.

The Massachusetts AG, Maura Healey, has explained that her investigation focuses “on whether Exxon may have misled consumers and/or investors with respect to the impact of fossil fuels on climate change, and climate change-driven risks to Exxon’s business,” in marketing energy products and in marketing Exxon securities, in violation of the state consumer protection law.

Similarly, New York’s AG, Eric Schneiderman, has indicated that he is investigating whether ExxonMobil’s public statements about climate change conflicted with its internal research, which could have led to “state law violations, including under the Martin Act,” the New York law that prohibits financial deception and fraud. (The New York AG reached settlements with Xcel Energy and Dynegy, Inc. in 2008 and with AES Corp. in 2009 based on those companies’ failures to disclose climate change risks in securities filings.)

In 2016, Exxon launched its response, suing Healey, Schneiderman, and U.S. Virgin Islands attorney general Claude Earl Walker in federal courts in its home region of Dallas-Fort Worth. The suit against Walker succeeded when his small office halted its investigation of the oil titan, but the other two AGs persisted.

U.S. District Judge Ed Kinkeade approved Exxon’s demand that Healey and Schneiderman submit to depositions by Exxon lawyers — an unwarranted, and virtually unprecedented move, as prosecutors aren’t normally required to face cross examination by people whom they’re investigating. Healey and Schneiderman fought back, seeking an unusual mid-case appeal to the 5th Circuit U.S. Court of Appeals, after which Kinkeade backed down, cancelled the depositions, and transferred the case to a federal court in New York.

As Exxon continues its efforts to convince a Manhattan federal judge to allow it to depose the two state AGs and, ultimately, to block their probes, it faces a new wave of lawsuits: since September 2017, eight cities and counties in California, plus New York City, have sued Exxon and other fossil fuel companies, alleging harm to their communities from climate change.

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...With Exxon CEO In Trump Spotlight, A Primer On The Company's Climate Court Fight

[

By David Halperin, Contributor

Attorney, advocate, writer at RepublicReport.org

Dec 12, 2016, 05:24 PM EST

|Updated Dec 13, 2017

This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

Donald Trump's public contemplation of picking ExxonMobil CEO Rex Tillerson to be U.S. Secretary of State raises a range of controversies, including Tillerson's dealmaking with Russia and close ties to Vladimir Putin. It also intensifies attention on ExxonMobil's escalating court battle with the attorneys general of New York and Massachusetts over the question of whether the company improperly concealed information about climate change.

Just today, a federal judge in Texas, Ed Kinkeade, cancelled his controversial order directing the Massachusetts AG, Maura Healey, to come to his Dallas courtroom tomorrow morning to be questioned by ExxonMobil's lawyers.

Here's a summary of ExxonMobil's legal dispute with the attorneys general, so far:

Investigative reporting in the past year demonstratedthat Exxon scientists have known and had told Exxon management for decades that burning fossil fuels was heating up the planet. But rather than educate the public on the dangers and change its business strategy, Exxon instead spent millions supporting efforts to question and deny the science of climate change. There also are questions as to whether ExxonMobil has properly accounted for its oil reserves in the wake of global price drops and evidence of global warming.

Responding to those reports and other evidence, New York attorney general Eric Schneiderman issued a subpoena to ExxonMobil in November 2015. ExxonMobil has produced more than 700,000 pages of documents to Schneiderman in response to his subpoena. On October 26, 2016, a New York judge ordered ExxonMobil and its auditor, PwC, to comply with a subpoena issued by Schneiderman seeking additional information regarding PwC's auditing of the oil company.

A group of state attorneys general met in New York on March 29, 2016, and consulted with several outside lawyers and experts on climate change issues. Following the meeting, the AGs, along with former Vice President Al Gore, held a press conference under the banner "AGs United for Clean Power" and announced they had formed a coalition to investigate ExxonMobil's conduct. The coalition included the attorneys general of California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Rhode Island, Virginia, Vermont, Washington, the District Of Columbia, and the U.S. Virgin Islands.

Soon after, in April 2016, Massachusetts attorney general Maura Healey issued a civil investigative demand (CID) to ExxonMobil. U.S. Virgin Islands attorney general Claude Walker issued a subpoena to the company the same month.

ExxonMobil promptly sued Walker in Texas state court in Fort Worth to block the Virgin Islands subpoena.

Then, on June 15, 2016, ExxonMobil sued Healey in federal court in Dallas to block her civil investigative demand.

On June 29, Walker, facing expensive litigation against ExxonMobil's legal team, agreed to withdraw his subpoena, and Exxon dropped its suit. Walker said then that he planned to continue to investigate ExxonMobil and would keep his eye on Healey's effort.

ExxonMobil argues in its suit against Healey that the Massachusetts AG is acting out of political motivation, and there is no legitimate basis for the AG probes, and that the First Amendment shields the company from scrutiny for its public statements -- a claim that leading constitutional law experts sharply dispute, because it is a settled legal principle that the First Amendment doesn't protect fraud.

In August 2016, fourteen attorneys general -- from Maryland, New York, Illinois, Iowa, Maine, Minnesota, Mississippi, New Mexico, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, and Virgin Islands -- filed a friend-of-the-court brief supporting Healey, while eleven AGs -- Texas, Louisiana, South Carolina, Alabama, Michigan, Arizona, Wisconsin, Nebraska, Oklahoma, Utah, and Nevada -- filed a brief supporting ExxonMobil.

On October 13, citing ExxonMobil's arguments, U.S. District Judge Ed Kinkeade issued an order permitting ExxonMobil to take limited discovery regarding attorney general Healey's comments and actions, in order to examine whether Healey served the CID in bad faith. Armed with this ruling, ExxonMobil, on October 24, served on attorney general Healey more than a hundred discovery requests.

Exxon also asked Judge Kinkeade for permission to add New York attorney general Schneiderman as a defendant in the case, a motion the judge granted. On November 4, ExxonMobil sought depositions of Healey, Schneiderman, and two assistant attorneys general in each of their offices.

On November 17, Judge Kinkeade issued an order directing Healey and Schneiderman to come to his courtroom in Dallas on December 13 to face depositions from ExxonMobil's legal team.

On November 29, Exxon withdrew its deposition notice for Schneiderman; it continues to seek other discovery from Schneiderman's office, including depositions of two top environmental enforcement officials in that office.

ExxonMobil also has subpoenaed in the Texas lawsuit some of the non-profit organizations and lawyers who have provided Healey and Schneiderman with information and expertise regarding the matter.

Healey said she would "vigorously oppose" Judge Kinkeade's order for her to be deposed. "Our position in this ligation is that the authorities in Texas, and specifically the federal court down there, has no jurisdiction over state attorneys general and the work of their offices," Healey told reporters in Boston on November 21. "It's been disappointing to see Exxon fight the request for basic information. Our job as attorneys general is to be able to ask questions."

Healey filed amotion asking the judge to reconsider his rulings. On December 6, 2016, Healey petitioned the United States Court of Appeals for the 5th Circuit for a writ of mandamus to reverse the order.

Schneiderman, as well as the outside groups and lawyers, are also opposing Exxon's efforts to take discovery in the Texas case. (Disclosure: I have advised some of these groups.)

On December 9, Judge Kinkeade denied Healey's motion to suspend Exxon's discovery in the case pending review by the 5th Circuit and also denied Schneiderman's motion to quash discovery.

On December 9, Schneiderman filed a motion with Judge Kinkeade to stay discovery against him pending appellate review -- the same type of motion that Kinkeade had denied Healey earlier that same day. In his papers, Schneiderman said that he intended to seek mandamus before the 5th Circuit on December 12.

On December 12, Judge Kinkeade issued a one-line order cancelling his prior order that Healey be deposed on December 13. The judge did not block any other discovery or indicate whether or when he would revisit the issue of deposing Healey.

ExxonMobil's lawsuit is a virtually unprecedented effort by a corporation to sue and investigate state prosecutors who are conducting an investigation of that corporation. Although Judge Kinkeade stated that he found sufficient grounds for ExxonMobil to investigate whether the AGs had acted in bad faith, in fact the AGs have been engaged in activities that are commonplace and entirely appropriate for state prosecutors: (1) cooperating with AGs from other states, (2) consulting with experts about possible unlawful activity, (3) seeking documents to investigate that activity, and (4) speaking in public about the matters under review.

To the extent that ExxonMobil has substantive and procedural objections to the attorneys general demands for information, it has every right to raise those objections in the Massachusetts and New York state courts, and indeed ExxonMobil is already doing just that.

ExxonMobil now also faces an investigation from the U.S. Securities and Exchange Commission, initiated in August 2016, examining a similar set of issues. In addition, in January 2016, the U.S. Department of Justice, responding to a congressional request to investigate ExxonMobil, referred the matter to the FBI.

Meanwhile, U.S. Representative Lamar Smith (R-TX), chairman of the House Science Committee, has subpoenaed documents from Healey, Schneiderman, and other state attorneys general, as well as lawyers and outside groups connected to the ExxonMobil matter. Over the summer, Smith held a committee hearing regarding his demands. For the most part, the AGs, groups, and attorneys have declined to provide any information in response to the subpoenas.

UPDATE 12-14-16: The U.S. Court of Appeals for the 5th Circuit yesterday dismissed Healey's mandamus petition and motion for a stay of Judge Kinkeade's orders as moot, meaning overtaken by events. It's unclear how the 5th Circuit judges think Healey's claims are moot, when all Judge Kinkeade did was cancel the deposition of Healey set for December 13; he didn't expressly stop all the other discovery that was part of Healey's motion. However, when he cancelled the Healey deposition, Judge Kinkeade issued a separate order directing all parties to submit new briefs by January 4 on the issue of whether his court has personal jurisdiction over the two AGs -- suggesting he might be reconsidering issues in the case.

UPDATE 12-15-16: This morning Judge Kinkeade has issued a one-line order: "The Court hereby stays all discovery pending further order from this Court." Coupled with his order Monday cancelling Exxon's deposition of Attorney General Healey, this represents a dramatic reversal by Judge Kinkeade of his unusual prior rulings favoring ExxonMobil. The reversal came after Healey had petitioned the U.S. Court of Appeals to block Kinkeade's orders (and of course after Trump's nomination of Tillerson increased public scrutiny of the matter). But this could be only a temporary reversal while Judge Kinkeade reconsiders some of the legal issues, including whether he has jurisdiction over the AGs in the first place.

*This article also appears on Republic Report.

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Democracy Dies in Darkness

CLIMATE AND ENVIRONMENT

In a loss for ExxonMobil, NY Supreme Court orders oil giant to produce climate documents

Massachusetts Attorney General Maura Healey, right, joined by New York Attorney General Eric Schneiderman, speaks during a news conference, in New York. Healey and Schneiderman have issued subpoenas as part of an inquiry into whether ExxonMobil deceived investors and the public by hiding what it knew about the link between burning fossil fuels and climate change. (AP Photo/Mark Lennihan, File)

By Steven Mufson

October 26, 2016

In a loss for ExxonMobil, the New York State Supreme Court has ordered the oil giant and its accounting firm to produce documents subpoenaed in a highly charged investigation of whether the company concealed from investors and the public what it knew about climate change as long as four decades ago.

The New York State Attorney General Eric Schneiderman, who issued a subpoena in August, sought on Oct. 14 to force PricewaterhouseCoopers to provide the documents after ExxonMobil said it would not permit PwC to provide certain documents based on a Texas statute that Exxon said provided “accountant-client privilege.”

The New York Court ruled that Exxon’s interpretation of the Texas statute was “flawed,” and said the Texas statute does not preclude PwC from producing the documents requested by the New York attorney general’s office. The court also stated that New York law, rather than Texas law, governed the dispute.

“We are pleased with the Court’s order and look forward to moving full-steam ahead with our fraud investigation of Exxon,” Schneiderman said in a statement. “Exxon had no legal basis to interfere with PwC’s production, and I hope that today’s order serves as a wake up call to Exxon that the best thing they can do is cooperate with, rather than resist, our investigation.”

ExxonMobil, however, said it would challenge the order. “We respectfully disagree with the court’s ruling and intend to take an immediate appeal,” said ExxonMobil spokesman Alan T. Jeffers in an email. The company could appeal to the New York state appellant division and later to the Circuit Court of Appeals in New York.

The legal maneuvering is the latest round in a dispute over whether ExxonMobil knew decades ago that climate change was a real threat and whether it improperly concealed that information from investors and the public. That could be a violation of the Martin Act, which gives the New York attorney general broad power to pursue fraud cases. Schneiderman and other attorneys general, in an unusual step, held a press conference in March vowing to work together to combat climate change, including through the investigation of ExxonMobil.

Exxon has asserted that it did not conceal material information and accused the attorneys general of having a political agenda. The company said the subpoenas alone would chill companies’ internal research and free speech.

ExxonMobil has produced more than a million pages of documents, but it has also asked a Texas federal court to issue a preliminary injunction blocking the need for the company to comply with similar subpoenas issued by Massachusetts Attorney General Maura Healey. U.S. District Court Judge Ed Kinkeade of Texas did not grant the injunction, but on Oct. 13 he issued a discovery order for ExxonMobil to examine Healey’s internal documents and records to determine whether she acted in “bad faith” in issuing her subpoena. ExxonMobil later asked the judge to add Schneiderman’s name to the order.

Healey has asked the court to vacate its order and dismiss Exxon’s suit.

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https://www.texasmonthly.com/news-politics/exxon-loses-home-field-advantage-climate-change-lawsuit/

Exxon Loses Home Field Advantage In Climate Change Lawsuit

A federal judge kicked the case from Texas to New York.

By Leif Reigstad

April 6, 2017

[ PIX Activists rally outside of New York State Attorney General Eric Schneiderman's office to support the New York state investigation into whether the oil giant Exxon covered up its knowledge about climate change on February 22, 2017 in New York City.Spencer Platt/Getty

Exxon suffered a major blow late last week in its attempt to stymie state investigations by attorneys general of New York and Massachusetts into the company’s alleged climate change fraud. The Dallas-based oil giant no longer has a home field advantage after a federal judge kicked the case out of Texas and over to a New York court, according to Reuters.

Last Wednesday, U.S. District Court Judge Ed Kinkeade in Dallas ruled that the case should be heard in New York rather than Texas, largely because Exxon’s argument hinges on a press conference held by New York Attorney General Eric Schneiderman last year, in which he announced that a coalition of state attorneys general focused on combatting climate change and holding the oil industry accountable.

Schneiderman’s announcement came about six months after New York began investigating Exxon for supposedly misleading investors by downplaying the dangers of climate change. Massachusetts opened its own investigation shortly after that press conference. Exxon claims the press conference proved that the investigations by New York and Massachusetts “are politically motivated” and are meant to “pressure Exxon to change its position in the policy debate about climate change,” Kinkeade wrote in the transfer order. Since the press conference occurred in New York, however, Kinkeade decided it would be better if the case were heard there.

As InsideClimate News notes, this is not good news for Exxon. Kinkeade, a 2002 appointee of President George W. Bush, has been fairly sympathetic to Exxon’s case, which had been in his court for almost a year. For example, in an unprecedented move last year, Kinkeade ordered Massachusetts Attorney General Maura Healey to appear in Dallas for a deposition. But he rescinded the order shortly before Healey was scheduled to appear.

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miers nom

Supreme Conflict: The Inside Story of the Struggle for Control of the United ...

By Jan Crawford Greenburg

rove

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James E. Kinkeade (born 1951) is a United States federal judge.

Born in Denton, Texas, Kinkeade received a B.A. from Baylor University in 1973, a J.D. from Baylor Law School in 1974, and an LL.M. from the University of Virginia in 1998. He was a law clerk, Private practice, Texas from 1974 to 1975. He was in private practice in Texas from 1975 to 1980. He was an Associate municipal judge, City of Irving, Texas from 1976 to 1980. He was a judge on the Dallas County Criminal Court No. 10, Texas in 1981. He was a judge on the Texas 194th District Court from 1981 to 1988. He is an Adjunct professor, Texas Wesleyan School of Law from 1981 to present. Judge Kinkeade is also the Jurist in Residence at Baylor University School of Law. He was a Justice, Fifth District Court of Appeals, Texas from 1988 to 2002.

Kinkeade is a federal judge on the United States District Court for the Northern District of Texas. Kinkeade was nominated by President George W. Bush on July 18, 2002, to a seat vacated by Elton Joe Kendall. He was confirmed by the United States Senate on November 14, 2002, and received his commission on November 15, 2002.

Sources:

James E. Kinkeade at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.

Legal offices	Legal offices	Legal offices
Preceded by Elton Joe Kendall	Judge of the United States District Court for the Northern District of Texas 2002–present	Incumbent

Legal offices

Preceded by

Elton Joe Kendall

Judge of the United States District Court for the Northern District of Texas

2002–present

Incumbent

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Categories:

James E. Kinkeade (born 1951) is a United States federal judge.

Kinkeade was a federal judge on the United States District Court for the Northern District of Texas. Kinkeade was nominated by President George W. Bush on July 18, 2002, to a seat vacated by Elton Joe Kendall. He was confirmed by the United States Senate on November 14, 2002, and received his commission on November 15, 2002.

Sources:{:(style="margin-right:0.25em"):}:[edit:{]}:

James E. Kinkeade at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.

Legal offices	Legal offices	Legal offices
Preceded by Elton Joe Kendall	Judge of the United States District Court for the Northern District of Texas 2002–present	Incumbent

Legal offices

Preceded by

Elton Joe Kendall

Judge of the United States District Court for the Northern District of Texas

2002–present

Incumbent

Categories:

James Ed Kinkeade is an Article III federal judge for the United States District Court for the Northern District of Texas. He joined the Court in 2002 after being nominated by President George W. Bush.

Early life and education

Born in Denton, Texas, Kinkeade graduated from Baylor University in Waco, Texas with his bachelor's degree in 1973 and his Juris Doctor degree in 1974. Kinkeade later earned a Master of Laws, LL.M, degree from the University of Virginia in 1998.^" ^{class="reference">[1]}

Professional career

Kinkeade was a law clerk for Dennis G. Brewer, Inc. from 1974 to 1975 before becoming a Partner for the Law Firm of Power & Kinkeade from 1975 to 1980.^[2] Kinkeade served as an Associate Municipal Court Judge for the City of Irving, Texas from 1976 to 1980 before serving as a Judge of the Dallas County, TexasCriminal Court in 1981 and Judge of the Texas State 194th District Court based in Dallas, Texas from 1981 to 1988. Kinkeade was elected to serve as an Appeals Justice for the Texas Fifth District Court of Appeals from 1988 to 2002. Kinkeade was an Adjunct Professor at the Texas Wesleyan School of Law from 1981 to 2002.^" ^{class="reference">[1]}

Judicial career

Northern District of Texas

On the recommendation of Texas U.S. Senators Kay Bailey-Hutchinson and Phil Gramm, Kinkeade was nominated to the United States District Court for the Northern District of Texas by President George W. Bush on July 18, 2002, to a seat vacated by Joe Kendall. Kinkeade was confirmed by the U.S. Senate on November 14, 2002 on a Senate vote and received commission on November 15, 2002.^[3]