Case 4:16-cv-00364-K Document 37 Filed 06/20/16 Page 1 of 6 PageID 550 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION EXXON MOBIL CORPORATION, Plaintiff, v. CLAUDE EARL WALKER, Attorney General of the United States Virgin Islands, in his official capacity, LINDA SINGER, and COHEN, MILSTEIN, SELLERS & TOLL PLLC, Defendants. § § § § § § § § § § § § § NO. 4:16-CV-00364-K REPLY IN SUPPORT OF PLAINTIFF EXXON MOBIL CORPORATION’S MOTION TO REMAND Patrick J. Conlon (pro hac vice) Daniel E. Bolia EXXON MOBIL CORPORATION State Bar No. 24064919 1301 Fannin Street Houston, TX 77002 Theodore V. Wells, Jr. (pro hac vice) Michele Hirshman (pro hac vice) Daniel J. Toal (pro hac vice) Justin Anderson (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 757-3990 Ralph H. Duggins Philip A. Vickers Alix D. Allison CANTEY HANGER LLP 600 West 6th Street, Suite 300 Fort Worth, TX 76102 Tel: (817) 877-2800 Fax: (817) 877-2807 Nina Cortel HAYNES & BOONE, LLP 2323 Victory Avenue,Suite 700 Dallas, TX 75219 Tel: (214) 651-5579 Fax: (214) 200-0411 Counsel for Exxon Mobil Corporation Case 4:16-cv-00364-K Document 37 Filed 06/20/16 Page 2 of 6 PageID 551 Plaintiff Exxon Mobil Corporation (“ExxonMobil”) submits this reply memorandum of law in support of its motion to remand this action to the 17th District Court of Tarrant County, Texas. ARGUMENT Defendants accuse ExxonMobil of filing a remand motion in an effort to return to a “friendlier forum” in Texas state court. (ECF No. 34 at 3.) That allegation is demonstrably false. ExxonMobil has no objection whatsoever to protecting its rights in this forum and has recently filed an action in this Court seeking declaratory and injunctive relief against ongoing constitutional rights violations committed by the Attorney General of Massachusetts. Exxon Mobil Corp. v. Healey, Civ. No. 4:16-CV00469-M (N.D. Tex. June 15, 2016). ExxonMobil seeks a remand of this case solely because of its understanding of Fifth Circuit precedent on ripeness; nothing more. The Fifth Circuit recently held that a challenge to a state-issued subpoena is not ripe for adjudication in federal court “when there is no current consequence for resisting the subpoena.” Google, Inc. v. Hood, No. 15-60205, 2016 WL 2909231, at *9 (5th Cir. Apr. 8, 2016, amended May 18, 2016). Here, ExxonMobil faces no immediate consequences for not complying with Attorney General Walker’s subpoena. For there to be any consequences, Attorney General Walker would need to commence enforcement proceedings against ExxonMobil. As of the filing of this Reply, he has not done so. Under a straightforward application of Google, ExxonMobil’s declaratory judgment action against Walker and his co-defendants is not ripe in federal court, notwithstanding its ripeness for adjudication in state court. 2 Case 4:16-cv-00364-K Document 37 Filed 06/20/16 Page 3 of 6 PageID 552 ExxonMobil’s recently filed action against the Massachusetts Attorney General, by contrast, is ripe for adjudication in federal court under Google. The civil investigative demand that ExxonMobil challenges in that action carries immediate, automatic penalties for non-compliance: a “civil penalty” and the forfeiture of objections to the demands. See Mass. Gen. Law ch. 93A § 7 (civil penalty); Attorney General v. Bodimetric Profiles, 533 N.E.2d 1364, 1365 (Mass. 1989) (forfeiture). Those penalties satisfy Google’s requirement that there be a “current consequence for resisting the subpoena,” 2016 WL 2909231, at *9, and permit this Court to hear ExxonMobil’s claims against the Massachusetts Attorney General for issuing the demand. Defendants disagree with ExxonMobil’s legal analysis. According to Defendants, Google’s holding applies only to claims for injunctive relief that seek to bar the enforcement of a subpoena. (ECF No. 34 at 4-5.) Because ExxonMobil seeks a declaration that the mailing and issuance of Attorney General Walker’s subpoena violated its rights, rather than an injunction prohibiting Attorney General Walker from enforcing the subpoena, Defendants contend that Google has no bearing on the Court’s ability to hear this case. (See id.) Defendants’ reading is difficult to square with what the Google Court actually ordered. The Fifth Circuit directed the district court to dismiss Google’s claims “challenging the administrative subpoena.” Google, 2016 WL 2909231, at *11. Like ExxonMobil, Google challenged “the issuance” of the subpoena in that case, and it also sought a declaration that the future enforcement of the subpoena would be illegal. See, e.g., Compl. ¶ 102, Google, Inc. v. Hood, No. 3:14-CV-00981, (S.D. Miss. Dec. 19, 3 Case 4:16-cv-00364-K Document 37 Filed 06/20/16 Page 4 of 6 PageID 553 2014), ECF No. 1 (alleging, in part, that “[t]he Attorney General’s issuance” of the subpoena violated the Fourth Amendment); ¶ 107A (seeking a declaration regarding a future enforcement). Although the Fifth Circuit expressed no view about Google’s request for a declaration that a future enforcement action would be illegal, it treated Google’s claims regarding the issuance of the subpoena as unripe challenges to the subpoena itself. See Google, 2016 WL 2909231, at *11 & n.14 (distinguishing between Google’s unripe claims “challenging the administrative subpoena” and Google’s claims regarding a future enforcement action, which the decision did not address). Determining whether ExxonMobil or Defendants have the better understanding of the Fifth Circuit’s decision in Google is a question of law for this Court. Were this Court to agree with Defendants that the matter is ripe for adjudication in federal court, ExxonMobil would press its claims in this Court. As demonstrated by its recent filing against the Massachusetts Attorney General, ExxonMobil seeks only a full and fair hearing of its claims before a court with jurisdiction to consider the requested relief. If this Court determines that ExxonMobil’s suit is ripe for federal adjudication, ExxonMobil is prepared to proceed. Dated: June 20, 2016 4 Case 4:16-cv-00364-K Document 37 Filed 06/20/16 Page 5 of 6 PageID 554 Respectfully submitted, EXXON MOBIL CORPORATION By: /s/ Patrick J. Conlon Patrick J. Conlon (pro hac vice) State Bar No. 24054300 Daniel E. Bolia State Bar No. 24064919 daniel.e.bolia@exxonmobil.com 1301 Fannin Street Houston, TX 77002 (832) 624-6336 /s/ Theodore V. Wells, Jr. Theodore V. Wells, Jr. (pro hac vice) twells@paulweiss.com Michele Hirshman (pro hac vice) Daniel J. Toal (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 Fax: (212) 757-3990 /s/ Ralph H. Duggins Ralph H. Duggins State Bar No. 06183700 rduggins@canteyhanger.com Philip A. Vickers State Bar No. 24051699 pvickers@canteyhanger.com Alix D. Allison State Bar. No. 24086261 aallison@canteyhanger.com CANTEY HANGER LLP 600 West 6th Street, Suite 300 Fort Worth, TX 76102 (817) 877-2800 Fax: (817) 877-2807 /s/ Nina Cortell Nina Cortell State Bar No. 04844500 nina.cortell@haynesboone.com HAYNES & BOONE, LLP 2323 Victory Avenue Suite 700 Dallas, TX 75219 (214) 651-5579 Fax: (214) 200-0411 Justin Anderson (pro hac vice) janderson@paulweiss.com 2001 K Street, NW Washington, D.C. 20006-1047 (202) 223-7300 Fax: (202) 223-7420 Counsel for Exxon Mobil Corporation 5 Case 4:16-cv-00364-K Document 37 Filed 06/20/16 Page 6 of 6 PageID 555 CERTIFICATE OF SERVICE I certify that on this 20th day of June 2016, the foregoing document was electronically transmitted to the Clerk of the Court using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the attorneys of record in this matter. /s/ Ralph H. Duggins Ralph H. Duggins 6