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Speaker 1: Hello, and welcome to Drill. We are doing a quick

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Speaker 1: update episode today on the Exxon fraud trial that just

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Speaker 1: concluded in New York. Our reporter Emily Gertz was there

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Speaker 1: a few times during the trial, including the opening and

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Speaker 1: closing arguments and during Rex Tillerson's testimony, so she's brought

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Speaker 1: us some details and we've also got a few minutes

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Speaker 1: at the trial to play for you as well. I

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Speaker 1: also caught up with Union of Concerned Scientists Kathy Mulvey

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Speaker 1: to get her take on this. She's been following the

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Speaker 1: case closely, and we talked a little bit about how

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Speaker 1: the New York case stacks up against the Massachusetts case.

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Speaker 2: Here we go.

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Speaker 3: What was the scene like on the opening day of

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Speaker 3: the trial?

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Speaker 4: Yeah, the opening day of the trial. Well, I didn't

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Speaker 4: see all of this, but ahead of the trial opening,

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Speaker 4: which was around the middle of the afternoon, like one

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Speaker 4: of the local three fifty chapters staged a big demo

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Speaker 4: hold ex on accountable kind of thing, and there's some

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Speaker 4: pictures from that did come out in like the Times

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Speaker 4: and stuff. And then there was a really long line

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Speaker 4: to get into the hearing room, which was where there

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Speaker 4: was like I don't know seating for I don't know

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Speaker 4: outside of the area where the all the parties in

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Speaker 4: the case are not very big, and so they you know,

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Speaker 4: they managed to cram about I don't know, let's say

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Speaker 4: thirty or forty ish people into the courtroom sort of gallery,

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Speaker 4: and then all everyone else and there were like dozens

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Speaker 4: of people online were sent over to an overflow room

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Speaker 4: where they had a live stream coming in, so there

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Speaker 4: was a lot of people that are interested in the case.

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Speaker 4: And then the two sides each gave their opening arguments.

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Speaker 4: They had a lot of exhibits that they put up

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Speaker 4: on the screen as they gave the opening arguments. You know,

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Speaker 4: the AG's office went first because they're the They brought

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Speaker 4: the lawsuit and laid out their case for why what

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Speaker 4: Exxon did constituted fraud. And then the lawyer for Exon

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Speaker 4: got up and gave his case, and which was basically

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Speaker 4: to say this wasn't fraud. It was clear all along

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Speaker 4: exactly how Exon was doing this, and the ag this

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Speaker 4: is not about securities fraud at all. This is about

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Speaker 4: the Attorney General having an agenda to persecute Exon, and

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Speaker 4: our evidence is that Eric Schneiderman did this press conference

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Speaker 4: or to ago, you know, with Al Gore talk, you know,

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Speaker 4: in the wake of in the wake of the reporting

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Speaker 4: by La Times and inside Climate on what Exon knew

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Speaker 4: and or you know, X on the road not taken

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Speaker 4: and they're like, so they held this press conference and

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Speaker 4: they were determined to find some way to haul Exon

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Speaker 4: into court. And that's what this case is really about.

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Speaker 4: It has nothing to do with securities fraud.

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Speaker 3: I watched the opening online too, and he like the like,

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Speaker 3: one of the last things he said was something like

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Speaker 3: that basically compared this case to Russians hacking the election.

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Speaker 5: Yeah.

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Speaker 4: Yeah, it was pretty strange, wasn't it.

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Speaker 3: And it was Yeah, I'm gonna play a little bit

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Speaker 3: of that tape here.

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Speaker 6: I want to talk about how they can get ags

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Speaker 6: involved to advance that false agenda, trying to p portray

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Speaker 6: something false, almost like Russians trying to interfere with the election.

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Speaker 1: I should mention here that that is Ted Wells. He

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Speaker 1: is a Littlegation partner with the firm Paul Weiss. He

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Speaker 1: is also the attorney who defended Philip Morris in the

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Speaker 1: Rico case against Big Tobacco, and he's been an Exon's

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Speaker 1: attorney for quite some time.

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Speaker 3: He really seemed to be getting kind of flustered towards

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Speaker 3: the end, which is unusual for these oil company lawyers.

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Speaker 4: He worked, he worked up a good head esteem. Definitely,

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Speaker 4: this this whole angle of how persecuted Exon is one

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Speaker 4: of their really potent arguments. And yet at the same time,

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Speaker 4: the ahead I went and did a lot of did

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Speaker 4: my best to get familiar with all the sort of

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Speaker 4: motions and things that led up to the trial and

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Speaker 4: the they on the one hand, Exon's motions to exclude

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Speaker 4: all sorts of angles of the prosecution were denied, But

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Speaker 4: at the same time, the prosecutor the judge also really

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Speaker 4: sort of narrowed the path for the Attorney General's office

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Speaker 4: to bring in information about how Exon misled the public

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Speaker 4: for so many years, like that that arguably predated the

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Speaker 4: actions that the ag say constitute the fraud, and so

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Speaker 4: like that stuff isn't coming is barely coming up in

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Speaker 4: the trial, which perhaps may have been very dissatisfying to

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Speaker 4: some of the activists. But this is really, I mean,

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Speaker 4: it's really about this, like did Exon conduct business in

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Speaker 4: above board or did it mislead investors? That's basically, and

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Speaker 4: whether it misled the whole world about climate change is

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Speaker 4: hardly coming up on cross examination. Tillerson went so far

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Speaker 4: as to say, well, you know, Exon did a lot

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Speaker 4: of the original research that has proven that climate change

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Speaker 4: is real, and you know, it's like he can say

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Speaker 4: that because the prosecutor is almost practically forbidden from bringing

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Speaker 4: up anything about how it then buried all tried did

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Speaker 4: its best to bury all that research, and you know,

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Speaker 4: so it's quite fascinating.

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Speaker 1: I talked to Kathy Mulby, the accountability campaign director for

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Speaker 1: the Climate and Energy Program at the Union of Concerned

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Speaker 1: Scientists about this too. Kathy's been following this case against

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Speaker 1: Exxon and various other cases for a while, and she

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Speaker 1: had one interesting detail about what some of the accounting

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Speaker 1: stuff shows about the denial campaigns and their impacts on

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Speaker 1: climate change.

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Speaker 2: Here, she is the New York case is pretty narrowly

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Speaker 2: focused on how the company accounted internally for the costs

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Speaker 2: of its high carbon business and got in to a

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Speaker 2: lot of detail about the terminology, and so I think

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Speaker 2: it really drew attention to the way that Exxon Mobil

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Speaker 2: did its planning, which you may have led to exploration

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Speaker 2: and development of carbon intensive resources like the Canadian oil

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Speaker 2: sands that will be harmful to our climate, but also

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Speaker 2: may wind up being stranded assets if policies are strengthened

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Speaker 2: around climate change.

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Speaker 1: Okay, back to my conversation with Emily.

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Speaker 3: You know, I think on the second or third day

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Speaker 3: of the trial, more Healy officially filed her suit in Massachusetts,

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Speaker 3: and that suit, the investigation started at the same time

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Speaker 3: that the New York fraud investigation started. With the Massachusetts

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Speaker 3: suit includes all of the greenwashing and denial campaign.

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Speaker 4: Yeah, I think Maura Healey might have been at that

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Speaker 4: press conference that that the Eric Schneiderman press conference.

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Speaker 3: Probably.

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Speaker 4: I don't think there's an equivalent of the Martin Act

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Speaker 4: in Massachusetts, so for them making a strong case may

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Speaker 4: be substantially different. So, like I wonder if, like some

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Speaker 4: of the discovery in that case we talked about last time,

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Speaker 4: could come into play there, because that's, uh, that's a Boston,

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Speaker 4: that's a Massachusetts community there that's claiming that while Exon

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Speaker 4: was saying one thing about climate change, that it was

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Speaker 4: doing another thing to protect its business. So the Healy

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Speaker 4: case looks like it's going to be really different. But

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Speaker 4: but exon will go after every single thing and try

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Speaker 4: to get as much of it excluded as possible. If

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Speaker 4: and and to not even go to trial, obviously they'll

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Speaker 4: do their best to get the whole thing thrown out.

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Speaker 3: So they were trying to get her to hold off

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Speaker 3: on fire laying until after the New York oh case,

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Speaker 3: and she was just like, no, I didn't know that. Yeah,

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Speaker 3: they were. Initially they said, you know, she couldn't file

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Speaker 3: until after the New York trial had stopped, which is

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Speaker 3: not true. And then when she sent them the sort

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Speaker 3: of like notice of you know, intent to file, they said, well,

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Speaker 3: you know, we'll do the you know conference and discussion

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Speaker 3: after the New York thing, which you know, is sort

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Speaker 3: of a courtesy that you wait until you have this

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Speaker 3: like conference with counsel on the opposing side to file,

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Speaker 3: but you don't. It's not required, there's no legal obligation.

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Speaker 3: And so Heally's choice to just go ahead and file

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Speaker 3: like right in the middle of the first week is

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Speaker 3: definitely a sort of f you. But that whole trial

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Speaker 3: is I don't know. It's interesting because they you know,

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Speaker 3: they tried to see her personally with this exact same

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Speaker 3: argument that that was used in the opening statement of

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Speaker 3: the New York case that this is politically motivated and

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Speaker 3: that you know, it's a witch hunt and all this

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Speaker 3: kind of stuff. So I think there's a little more

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Speaker 3: like personal heat in the mass Okay.

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Speaker 4: Well, yeah, I mean if nothing else, Like, you know,

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Speaker 4: I think we're on our third Attorney General since since

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Speaker 4: since Schneiderman announced the investigation, So it would be very

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Speaker 4: it would be very hard for them to bring to

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Speaker 4: make to attempt to like even infer like a personal

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Speaker 4: animosity on the part of the AG's office. You're right, yeah,

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Speaker 4: but Mora Healey's fortunately has has managed not to do

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Speaker 4: anything that forced her to resign from office. I'm like,

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Speaker 4: unlike our attorney general. Well, it must it must be

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Speaker 4: very frustrating to them. You know, they can't get these

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Speaker 4: cases moved. Like whenever there's a federal suit, one of

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Speaker 4: the first things they do is try to get it

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Speaker 4: moved down to Texas, right, and like that's you know,

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Speaker 4: you can't do that if it's the state ag.

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Speaker 3: So well, and then with all of the cases that

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Speaker 3: have been filed in state court, they try to get

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Speaker 3: it removed to federal court because they have some precedents

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Speaker 3: at least in the liability cases of the Cleaning Act,

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Speaker 3: basically preempting any kind of state action on this stuff.

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Speaker 4: So right, that's what's interesting about the New York AG's

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Speaker 4: approach too, is like it has you can't make that

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Speaker 4: Cleaner Act argument with securities fraud in New York State.

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Speaker 3: Did you go back on Wednesday? Also for Tillerson?

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Speaker 4: I did? I did? I went back for Tillerson.

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Speaker 3: Was there a different sense of anything when you went

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Speaker 3: back for the Tillerson testimony?

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Speaker 4: There wasn't as big a crowd. I mean, there was

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Speaker 4: definitely a lot of people. Certainly there was a lot

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Speaker 4: of press there, but you didn't get the big crowd

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Speaker 4: of activists that we saw the first day. There were

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Speaker 4: two things, I think. The first is that you know,

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Speaker 4: by this time, the trial has been going on for

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Speaker 4: what two weeks almost, and there was already kind of

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Speaker 4: a little bit of a fraud atmosphere coming in from

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Speaker 4: what I read, because first of all, the AG has

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Speaker 4: been relying a lot on the same set of documents

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Speaker 4: when they do their examinations of the witnesses, and one

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Speaker 4: gets the sense from side comments like I won't show

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Speaker 4: that map again that the judge has seen a lot

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Speaker 4: of this stuff now repeatedly, and is the judge beginning

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Speaker 4: to get impatient? Well, like the week before Tillison came in,

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Speaker 4: he actually told the prosecution, he said, if you guys

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Speaker 4: can't make efficient use of our time, I'm going to

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Speaker 4: end the trial. Because they were setting up witnesses and

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Speaker 4: then Exon was not cross examining, so they had these

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Speaker 4: big holes in the schedule that the judge felt were needless.

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Speaker 4: And so I did notice that a press person from

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Speaker 4: the ag is sending out on background updates on the

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Speaker 4: witness list, and the witness list did start to get

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Speaker 4: a little more heavily populated at that point, as you know,

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Speaker 4: they began to sort of queue people up against the

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Speaker 4: possibility that Exxon would not take up a lot of

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Speaker 4: time with cross examination. So so yeah, so yeah, coming in,

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Speaker 4: you know, there's been a little already a little bit

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Speaker 4: of strife between the prosecution and the judge, let's say,

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Speaker 4: and so, but you know, other than that, it was

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Speaker 4: all very calm. I mean, Tillerson was extremely self contained,

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Speaker 4: very composed.

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Speaker 3: He looked very relaxed.

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Speaker 4: He was kind of tan actually, and uh like I

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Speaker 4: didn't get a sense of any sense of defensiveness from

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Speaker 4: him while he was being examined. There was a lot

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Speaker 4: of I don't recall here, you know, at certain points.

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Speaker 4: And one thing that people remarked on afterwards, meaning reporters

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Speaker 4: I was chatting with, was that people had been kind

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Speaker 4: of expecting the prosecution to bring up this Wayne Tracker

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Speaker 4: email account issue.

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Speaker 3: Are you familiar with that?

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Speaker 4: Yes? And yeah and they I mean, and the attorney

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Speaker 4: from the AG's office was like one of their information

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Speaker 4: technology specialists, and which would have, I think created some

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Speaker 4: expectations that they were going to discuss with him. Why

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Speaker 4: were you using this aliast account? Why did the messages

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Speaker 4: from that account? Why weren't they you know, saved the

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Speaker 4: way your main account was when you know, it became

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Speaker 4: clear that there was a legal action underway. You know,

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Speaker 4: Exon has excuses for that, like, well, we just didn't

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Speaker 4: you know, we didn't we didn't take we didn't flag

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Speaker 4: that account for conservation or whatever. So but none of

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Speaker 4: that ever came up. They just let it go completely.

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Speaker 1: I spoke to Emily the day before the closing arguments

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Speaker 1: in the Exon trial that was today, November seven, But

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Speaker 1: I watched those closing arguments myself this morning, and it

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Speaker 1: struck me that Ted Wells seemed to really be focusing

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Speaker 1: on the reputations of Exon's executives and how they've been

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Speaker 1: harmed by the charges brought in this case. It's not

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Speaker 1: unusual for Exon to sue attorneys, organizations, activists, whoever they

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Speaker 1: can over things like reputational risk. So I don't know

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Speaker 1: whether he's laying the groundwork there, but he was really

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Speaker 1: emphasizing it in is closing. Here's a little snippet of that.

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Speaker 5: I mean, the case is almost is a joke, but

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Speaker 5: it's a joke because a lot of good people happened,

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Speaker 5: hurt and disparaged by the bringing of the complaint. The

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Speaker 5: excem over witnesses are primarily.

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Speaker 6: Engineers and scientists.

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Speaker 5: That's what the company is made and those persons they

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Speaker 5: come to work every day for one purpose, to try

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Speaker 5: to bring energy to the world, to this country, try

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Speaker 5: to make sure that all of us when we get

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Speaker 5: up in the morning, we have light, in the winter,

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Speaker 5: we have heat. And just because there is a serious

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Speaker 5: problem relating to climate change, when we acknowledge that that

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Speaker 5: problem is real and must be addressed, it does not

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Speaker 5: give a regulator the right way to bring America's case

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Speaker 5: that hurts people's reputations.

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Speaker 1: And meanwhile, Mara Healy in Massachusetts formally filed her complaint

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Speaker 1: against Exon, so that will be going to tryal at

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Speaker 1: some point soon. And that case is a little different

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Speaker 1: from this one. Here's Kathy Mulvey again on that one.

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Speaker 2: Fascinating there is in terms of the charges of defrauding investors,

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Speaker 2: it's situated in a much larger question of the systemic

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Speaker 2: risks that climate change poses to our entire economy and

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Speaker 2: what that means for the planet and for Exonomobiles business.

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Speaker 2: So that's really putting fundamental issues on the table, and

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Speaker 2: fundamental issues that are that are in the mainstream. I

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Speaker 2: mean the task force convened by Michael Bloomberg several years ago,

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Speaker 2: that the task Force on Climate related financial disclosures, you know,

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Speaker 2: was put together with the recognition that climate change poses

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Speaker 2: the same kinds of systemic risks to our globally that

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Speaker 2: the financial crisis did ten years ago. So that's one

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Speaker 2: big difference. The other big difference is that the Massachusetts

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Speaker 2: lawsuit includes a consumer complaint and specifically charges Exceon Mobile

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Speaker 2: with greenwashing and it's advertising to consumers in the Commonwealth,

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Speaker 2: and it's apparent misrepresentation that the company is taking action

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Speaker 2: to address climate change when actually the company is expanding aggressively.

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Speaker 2: It's it's possible field business.

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Speaker 1: Okay, that's it for this one. We will definitely be

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Speaker 1: following the Massachusetts case as well, and we'll bring you

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Speaker 1: other updates on all the various litigation as we get them.

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Speaker 1: Thanks for listening. Drilled is produced and distributed by Critical Frequency.

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Speaker 1: The show was created and reported by me. Our music

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Speaker 1: is by Martin Wissenberg. We're in sort of an in

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Speaker 1: between season right now and we're doing a few interviews

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Speaker 1: and series, but we will have another investigative series coming

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Speaker 1: at you. It's a great story, so I hope you

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Speaker 1: tune in. In the meantime, you can check out our

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Speaker 1: of bonus content this month, and we will drop the

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Speaker 1: membership and the link for that is in the show notes.

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Speaker 1: Thanks a lot,