Exxon allies cry foul over law firm in climate probe

Exxon allies cry foul over law firm in climate probe
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Exxon Mobil Corp.’s allies are crying foul over the role of a law firm involved in the fight over the oil giant's history with climate change.

State attorneys general are looking into allegations Exxon knew its past stance denying climate change was wrong and committed fraud.

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But the investigation by the U.S. Virgin Islands is being conducted by Cohen Milstein Sellers & Toll, a Washington, D.C. law firm with an entire practice dedicated to helping state attorneys general with complex litigation.

Virgin Islands Attorney General Claude Walker (I) gave authority to Cohen Milstein attorney Linda Singer to investigate — on his behalf — whether Exxon committed fraud, in violation of territorial law.

Singer’s firm, an established outfit with a reputation as an aggressive plaintiffs’ advocate, stands to take in as much as 27 percent of any monetary damages, plus certain costs, under a retainer agreement obtained by The Hill through a public records request.

If the Virgin Islands doesn't get a settlement or damages, Cohen Milstein makes nothing, a so-called contingency arrangement.

That arrangement has sparked criticism from Exxon allies, who say it gives the firm an inappropriate profit motive and that Walker is ceding too much authority to outside lawyers.

They are using the arrangement to argue that the climate investigations are an illegal and inappropriate infringement on the free-speech rights of Exxon and other parties.

But experts in the field say these arrangements are common for states and territories with limited budgets.

It’s only the latest twist in the complex fight over whether Exxon lied to the public and investors about climate change.

Walker earlier this month withdrew subpoenas Singer had filed on his behalf against Exxon and the Competitive Enterprise Institute (CEI) for decades of climate records. But Walker vowed to proceed with his investigation, and Exxon's allies are keeping a spotlight on the firm.

“This agreement is further proof the motivation behind these attorney general investigations and unconstitutional subpoenas is not to seek justice, but to bully and bankrupt their political opponents into silence, and make hundreds of millions of dollars in the process,” said Kent Lassman, CEI’s president.

“It’s a blueprint for how to shakedown and harass scores of individuals and groups who cannot afford to protect their rights against an abusive government lawsuit.”

Katie Brown of the industry-backed project Energy In Depth said the fee schedule, laying out contingency percentages for judgments or settlements of $250 million or more, shows that Cohen Milstein was anticipating a big profit.

“The obscene potential payouts in the contract explain why Cohen Milstein got into the #ExxonKnew charade in first place and, more importantly, just how weak of a case they believed they had to withdraw from it so precipitously,” Brown said, referring to the Twitter hashtag environmentalists use for investigations.

Exxon declined to comment. Singer, a former Democratic attorney general for the District of Columbia, said she was not authorized to speak about the case.

Brian Laik, a special counsel in Walker’s office, also declined to answer questions about the case. But he defended Walker’s decision to use an outside firm on contingency, saying a small office with fewer workers than many major law firms needs help for major cases.

“There’s about 120 staffers here, total,” he said.

Exxon had previously sued Walker and Cohen Milstein to stop the subpoena, saying in a court filing that “Walker’s purported delegation to Cohen Milstein and Singer deprives ExxonMobil of due process of law and fundamental fairness.”

The retainer doesn't specifically mention the Exxon case, instead covering any matter for which Walker taps the firm for assistance. It came into force May 10, when Virgin Islands Gov. Kenneth Mapp (I) signed it, but its terms stretch back to Feb. 1.

Walker announced his investigation March 29 at a press conference in New York City with New York Attorney General Eric Schneiderman — who is conducting his own Exxon probe — and other attorneys general. It was two weeks after Singer filed the first subpoena against Exxon.

“It could be David and Goliath, the Virgin Islands against a huge corporation, but we will not stop until we get to the bottom of this and make it clear to our residents as well as the American people that we have to do something transformational,” Walker said, outlining the effects of climate change on his territory.

Walker alleges that Exxon — which does not do business in the Virgin Islands — violated the territory’s anti-racketeering law.

Singer was featured in a New York Times investigation in 2014 as one of a handful of lawyers who solicit attorneys general to let them take up contingency cases against companies like nursing homes and drug makers for potentially big payouts.

But those familiar with such arrangements say the retainer in this case is standard.

“We see this a lot, particularly in areas where a state AG’s office might not have, in-house, the expertise necessary to handle a case,” said Ashley Taylor, an attorney with the firm Troutman Sanders, who often defends companies in cases brought by firms on behalf of state attorneys general.

“It’s not a surprise, in a case of this nature," he continued. "And frankly, it’s just not unusual.”

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University’s law school, agreed.

“It’s hardly novel. There have been quite a few instances in recent years in which state attorneys general have hired lawyers on a contingent-fee basis to handle cases that have money damages,” he said. “There have been a number of cases challenging it. Most of those challenges have not succeeded.”

Contingent-fee agreements entered the national spotlight in the 1990s, when states sued tobacco companies for the damages from smoking. The state attorneys general relied heavily on private firms, judging that the complexity and size of the litigation would be too much to handle on their own.

Many states cracked down on the process when legislators thought they got bad deals out of the tobacco lawsuits, and started limiting contingency rates or requiring competitive bidding.

But the arrangements are still common, particularly in environmental litigation and other complex cases, and are used by attorneys general from both parties frequently.

Gerrard said courts in judging contingency retainers look at how much power an attorney general cedes to an outside firm. He said Walker was careful to retain power to make important decisions in this case.

"It’s the decision of the attorney general whether to bring a case and what claims to file," he said. "That decision is not left to private counsel.” 

Virgin Islands retainer agreement by M Mali on Scribd