On Monday Texas Attorney General Ken Paxton intervened in a Fort Worth lawsuit in order to defend free speech rights, and he is already seeing some success.

The suit was originally filed by ExxonMobil in Tarrant County against Claude Earl Walker, the Attorney General of the US Virgin Islands. Walker is using the criminal statutes of the US Virgin Islands to investigate ExxonMobil over statements it has made regarding global warming. Walker has claimed that ExxonMobil’s products – chiefly oil and natural gas – are “destroying the earth.”

The investigation is part of an orchestrated effort by 17 liberal Democrat attorneys general from various states and jurisdictions to use racketeering laws to punish ExxonMobil and others who speak freely on the issue of global warming and climate change.

The Fort Worth suit also names attorney Linda Singer of the DC-based class action law firm Cohen Milstein as a defendant. Paxton’s intervention takes particular issue with the fact that Singer’s firm appears to be paid on a contingency fee basis, a mechanism by which Singer would be paid only if she extracts high dollar fines or a settlement from ExxonMobil. While common in civil cases, the arrangement is widely viewed as unethical in criminal investigations such as Walker’s investigation into ExxonMobil.

“Contingency fee arrangements cut against the duty of impartiality by giving the attorney that represents the government a financial stake in the outcome. Thus, the use of contingency fees is highly suspect in criminal cases and, more generally, when fundamental rights are at stake. State v. Lead Indus., Ass’n, Inc., 951 A.2d 428, 476 n. 48 (R.I. 2008) (doubting that contingent fees would ever be appropriate in a criminal case); Int’l Paper Co. v. Harris Cty., 445 S.W.3d 379, 393 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (contingency fees are impermissible in cases implicating fundamental rights).”

Despite concerns, the practice seems to be the tool of choice for one of the Democrats’ favorite lawyers. The Daily Caller explains how Singer and her firm make millions by working with Democrat attorneys general to shake down industries disfavored by far-left special interests.

“Singer, the former attorney general for the District of Columbia, has made Cohen Milstein millions working with mostly Democratic attorneys general in class action lawsuits against various industries.


The New York Times wrote in a 2014 article how Singer goes about getting AGs to sue — or threaten to sue — all sorts of industries for huge sums of money. Her firm pays the upfront legal costs in exchange for a share of the rewards — usually between 15 to 25 percent of a settlement.


Singer, for example, won a massive settlement with Bank of America in 2009, netting Nevada an extra $38 million. As part of their contingency-fee, her firm got an extra $5.6 million, according to the Times.


Singer’s history with Walker suggests her firm could stand to gain millions if they convince Exxon to settle.


Singer recently handled a case for the Virgin Islands AG against Hess Oil over the closure of a refinery in the Virgin Islands. That settlement and the resulting sale of the refinery netted the Virgin Islands government $800 million. Singer’s handling of the case on what’s called a contingency-fee basis netted her firm $15 million, according to Exxon’s legal filing.”

Walker and Singer have used abusive subpoenas as a weapon against ExxonMobil, as well as other non-profit groups including the Competitive Enterprise Institute (CEI). The subpoena sent to ExxonMobil also targeted the conservative Texas Public Policy Foundation as well.

After Texas intervened in the Fort Worth suit Monday, Singer emailed attorneys for CEI and informed them the subpoenas to the non-profit group were being withdrawn. However, she threatened that Walker may pursue the subpoenas again in the future, and the fight over the offending ExxonMobil subpoenas goes on.

Now, the CEI is fighting back. On Monday, Andrew Grossman of BakerHostetler, which represents the Competitive Enterprise Institute, filed a motion in a DC court seeking sanctions against Walker for violating the organization’s free speech rights. Grossman calls the subpoenas to CEI “offensive,” “unlawful,” and “un-American.”

The investigation of ExxonMobil is yet another episode in the growing trend of left-wing organizations and interests weaponizing the criminal justice process to use against their conservative enemies. It is a trend that is alive and well in Texas, as seen in the criminal prosecutions of Tom Delay, Rick Perry, Wallace Hall, and Ken Paxton. In order to preserve fundamental freedoms, Texans must come to the defense of the First Amendment.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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