The downfall of #ExxonKnew

It was a hashtag prosecution, a social media campaign posing as a legal case: #ExxonKnew. And like yesterday’s media balloon become today’s litter, its deflated remains floated back down to earth last week in a New York courtroom.

National Review asked me to write a longer piece on last week’s Exxon acquittal (earlier, and previously):

In a 2003 case called Nike v. Kasky, no less a liberal authority than Supreme Court Justice Stephen Breyer warned that it was dangerous to freedom of speech to arm ideological adversaries with legal power to bring fraud charges against businesses based on those businesses’ public statements about contentious issues….

In his full, scathing opinion, Judge Ostrager rejected each of the state’s themes. “ExxonMobil’s public disclosures were not misleading.”…

New York’s prosecution of Exxon — a legal vendetta against a target chosen for essentially political reasons — deserves to be studied in law schools for years to come. But not for the reasons its authors once hoped.

Whole thing here.

Filed under: climate deniers to the wall, Eric Schneiderman, Exxon, New York state, WO writings

Exxon beats the New York rap

“If a state like New York can bend and twist legal concepts like that of securities fraud to carry on an essentially political vendetta against a corporate enemy, how safe are other businesses?” My new Cato post reports on a judge’s scathing rejection of a case that should never have been brought, the New York Attorney General’s attempt to hang fraud charges on Exxon over its statements on climate change.

Filed under: climate change, Eric Schneiderman, Exxon, New York, WO writings

Eric Schneiderman resigns after assault allegations

Within hours of a New Yorker investigation reporting on the stories of several women who accused him of assault, New York Attorney General Eric Schneiderman has resigned. “Women’s issues had been a focal point for Mr. Schneiderman.” In particular, among other domestic violence laws, Schneiderman had backed the toughening of penalties for choking and interference with a victim’s breathing. [Danny Hakim and Vivian Wang, New York Times] My City Journal piece three years ago detailed how Schneiderman had become one of the nation’s most powerful and consequential progressive politicos. We previously covered disgraced former New York Attorney General Eliot Spitzer’s involvement as a law enforcer with laws he was later to trip over.

Filed under: do as we say, Eric Schneiderman

Un-forthcoming Schneiderman loses another round to CEI

A New York appellate court has upheld an order that New York Attorney General Eric Schneiderman pay counsel fees to the Competitive Enterprise Institute for having resisted required disclosure of the “AGs United for Clean Energy” secrecy agreement [Anna St. John, CEI; Chris White, Daily Caller]

Attorneys general began tangling with CEI in April of 2016, and have experienced repeated setbacks in courtroom battles since then.

Filed under: attorneys general, climate deniers to the wall, Eric Schneiderman

Second Circuit: Schneiderman can unmask private group’s donors

At least since 1958’s NAACP v. Alabama, it has been thought settled that state demands for the disclosure of private organizations’ membership and donor lists poses very real risks of First Amendment infringement to which courts must be sensitive. Recent years, however, have seen concerted efforts to strip anonymity from donors to at least some non-profit groups with a policy emphasis. One danger — or feature, from the standpoint of some groups doing the campaigning — is that if target groups can be made to divulge such information, their supporters can be exposed to pressure, shaming, and public and private retaliation.

Kamala Harris, then Attorney General of California and now Senator from that state, did not fare well in court in such a campaign while in state office, but New York’s left-leaning Attorney General Eric Schneiderman seems to be enjoying better luck in a similar push. A Second Circuit panel has ruled in favor of his demands for the donor lists of Citizens United, the conservative group whose role in a landmark First Amendment case at the Supreme Court has made it, along with that case, “the Emmanuel Goldstein of the American left.” It will not be surprising if the Supreme Court is soon asked to reaffirm the protections of NAACP v. Alabama. [Trevor Burrus and Reilly Stephens, Cato, and thanks for mention; see also my April 2016 Cato piece]

Filed under: campaign regulation, Eric Schneiderman, First Amendment, Second Circuit

Liability roundup

Company that advances money to claimants against New York City also donates generously to New York politicos [Shawn Cohen, Julia Marsh, Rich Calder and Bruce Golding, New York Post and followup (“LawCash execs showering Schneiderman with campaign contributions”), as well as editorial and followup]
Jesner v. Arab Bank (whether corporations are exposed to liability under Alien Tort Statute) argued at Supreme Court [John Bellinger and Andy Wang, Lawfare; Anthony J. Bellia and Bradford R. Clark, Lawfare; Just Security symposium; Federalist Society teleforum with William Casto and Samuel Estreicher]
For defendants in pending patent litigation, T.C. Heartland decision on patent venue may not offer a get-out-of-Texas card [Jeffri A. Kaminski, WLF]
Top ten class action related developments of 2017 [Paul Karlsgodt; plus Andrew Trask on the class action issues of ascertainability and Spokeo standing in 2017]. And Jim Beck offers a defense perspective on most and least helpful court decisions of the year for pharmaceutical and medical device makers;
Missed this from 2014: how tort law creates pressures (before any dispute arises) to intrude on privacy [Eugene Volokh, Columbia Law Review]
“Alabama SC: Settlement schedule violates due process rights, class members deserve more information” [Jessica Karmasek, Legal NewsLine; MedPartners securities action]

Filed under: Alien Tort Claims Act, class actions, Eastern District of Texas, Eric Schneiderman, litigation finance, NYC, pharmaceuticals, privacy

John Baker on the AGs’ Exxon campaign

“Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?” Prof. John Baker in the Georgetown Journal of Law and Public Policy, excerpt:

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.”

We’ve covered one angle of the investigation — its attempt to attach legal consequences to wrongful climate advocacy, and use subpoena power to investigate advocates — at length. Baker writes about many others, including the murky origins of the multi-state investigation and related professional responsibility questions, Exxon’s subdued public response, and the prospect of an ideological “War Between the States.”

Filed under: attorneys general, climate deniers to the wall, Eric Schneiderman, Exxon

When prosecutors team up, and when they don’t

I’m in today’s New York Post. Excerpt:

“Mueller teams up with New York attorney general in Manafort probe,” Politico reported Wednesday. Commentators went wild.

What could be more exciting than for the special counsel investigating the Russian matter to team up with noted Trump foe Eric Schneiderman? Neither the president nor Congress can lay a glove on him; some of the legal weapons he wields go beyond what Mueller has at his disposal; and if Schneiderman obtains convictions in state court, Trump will have no pardon power. It’s like two superheroes with coordinating capes and powers!

Around liberal Twitter, it was a total game changer. “THIS IS BIG!!!!!!” typed Amy Siskind of New Agenda, hailing the sort of news for which four or five exclamation points won’t do. “What’s Russian for ‘Trump’s goose is cooked?’” crowed Harvard’s Laurence Tribe.

In the opposite camp, the Trumpian claque at Breitbart argued that with the combative New York AG on board — Schneiderman has long feuded with Trump, and is widely disliked by Republicans — the whole Russian probe can be dismissed as tainted. The connection “undermin[es] the integrity and impartiality of Mueller’s inquiry,” wrote Joel Pollak. “There could not be a more inappropriate person to be seen working with Mueller.”

Both sides should calm down….Federal and state prosecutors are supposed to cooperate when investigations overlap. That’s what they do.

I go on to discuss sharing of grand jury information, the ripples of dismay sent by Trump’s Joe Arpaio pardon (on which more from Josh Blackman here, see also and earlier), and New York’s Martin Act. Whole thing here.

Filed under: Donald Trump, Eric Schneiderman, New York, prosecution, WO writings

UPS didn’t ask questions about volume shipments from Indian reservations

“A federal judge on Thursday ordered delivery giant UPS Inc. to pay New York City and the state nearly $247 million in damages and penalties for illegally shipping cigarettes” to New York buyers from Indian reservations. “UPS argued it followed the rules and can only do so much to police what its 1.6 million daily shippers send in sealed packages.” The delivery service says the shipments accounted for about $1 million in revenue. [AP/New York Post]

Filed under: crime and punishment, Eric Schneiderman, Indian tribes, privacy, taxes, tobacco

Jim Copland: Congress should override NY’s Martin Act

Especially given the role of the Constitution’s Commerce Clause, federalism provides no good reason why successive holders of the office of New York attorney general, through the state’s ultra-broad Martin Act, should regulate national business practices in ways at odds with federal regulation and the wishes of the other 49 states:

national financial markets have been overseen since the Depression by the SEC under federal law. In 1996 Congress enacted the National Securities Improvement Act to exempt nationally traded securities from state registration and review requirements. Congress should go further and pre-empt state securities laws that seek to require disclosures exceeding federal standards or that have looser proof requirements on questions like intent.

[Jim Copland, WSJ ($) via Manhattan Institute; earlier on Martin Act]

Filed under: attorneys general, Eliot Spitzer, Eric Schneiderman, New York, securities litigation