ExxonMobil gets court’s blessing to forge ahead with lawsuit against climate activist investor

A new legal win for ExxonMobil has the potential to shake up the foundations of shareholder resolutions, especially those related to climate change, as the U.S.-headquartered energy giant has received a green light from a federal judge to proceed with legal action against Arjuna Capital, a compatriot investment player, over a proposal on Scope 3 emission-reduction targets.

Key highlights:

• Judge allows ExxonMobil’s lawsuit against Arjuna Capital to proceed
• U.S. oil major’s suit against Follow This dismissed
• Case could potentially set a precedent in dealing with emission reduction-related proposals from climate activist shareholders

ExxonMobil sued Arjuna Capital and Follow This over their shareholder proposal to raise the greenhouse gas (GHG) emission reduction bar on January 22, 2024, arguing that the content was the same as in the proposals submitted in 2022 and 2023.

Convinced that the ultimate goal of the proposal is to wind down its oil and gas business, the U.S. giant decided to take legal action to exclude the proposal from its 2024 proxy statement due to its shareholders overwhelmingly rejecting the previous proposals.

Even though Arjuna Capital and Follow This ended up withdrawing their shareholder proposal on February 2, 2024, ExxonMobil asked the court on February 5, 2024, to continue the suit, explaining that “repeatedly submitting proposals that investors overwhelming reject is not in the interests of investors or a working shareholder proposal system.”

Commenting on the case, Mark van Baal, Follow This Founder, stated: “Exxon Mobil clearly wants to prevent shareholders using their rights. Apparently, the board fears shareholders will vote in favor of emissions reductions targets.”  On the other hand, Natasha Lamb, Arjuna’s Chief Investment Officer, put an emphasis on a so-called “fundamental right and duty to voice concern over climate risk.”

A new development in the case was revealed on May 22, when Mark Pittman, U.S. District Judge for the Northern District of Texas, said in its ruling that the U.S. oil giant’s lawsuit could move forward against Arjuna Capital. However, the claim against Follow This has been dismissed as the court has no jurisdiction since the firm is based in the Netherlands.

 “Exxon can hardly be faulted for distrusting organizations devoted to shareholder activism,” wrote Pittman in his ruling in justification of ExxonMobil’s lawsuit against Arjuna and Follow This, adding: “Exxon’s argument is far from a ‘sky-is-falling’ hypothetical.

“Rather, the company’s position is a rational response to entities categorically opposed to Big Oil. Exxon is big. And Exxon is oil. And another court has already found at least defendant has leadership that’s ‘manifestly biased’ against Exxon.”

While ExxonMobil provided its estimated Scope 3 emissions from the use of its oil and natural gas production, the firm outlined in its ‘Advancing Climate Solutions‘ report and previous proxy statements the rationale and reasons behind its belief, pointing out that setting Scope 3 targets was “a flawed approach with significant unintended consequences.”

The U.S. energy heavyweight’s legal action against Arjuna and Follow This has sounded the alarm among other activist groups and proxy advisers. The withdrawal of the proposal was intended to put an end to ExxonMobil’s lawsuit.

As this did not happen, the two activist investors moved to dismiss the case, arguing that their retracted proposal and promise not to refile moot the oil major’s claim, divesting the court of subject-matter jurisdiction.

They also contested personal jurisdiction, stating that the U.S. firm was endorsing a “novel theory,” allowing it to “haul its shareholders into any court in the United States.” While Exxon has won on subject-matter jurisdiction, Arjuna has lost its case on personal jurisdiction but Follow This prevailed.

Support for the Dutch climate activist’s call for stricter GHG cuts and more ambitious net zero targets has been lagging behind and diminishing as a result of tighter global oil supply, higher energy costs, and growing energy security concerns in the aftermath of the Ukraine crisis, despite multiple similar proposals being put to shareholders of other oil and gas companies.

Given the current geopolitical and energy ecosystem, ExxonMobil secured backing from the U.S. Chamber of Commerce, representing about 300,000 direct members, and the Business Roundtable, bringing CEOs of more than 200 of America’s companies together, which filed a brief with the court on February 28, 2024, in support of ExxonMobil’s claim.

While this duo believes ExxonMobil made the right call as these proposals exemplify “activist groups’ takeover of the shareholder proposal process to score ideological points,” some others see the move as a potential crackdown on climate activists that take advantage of shareholder meetings to change the course of companies’ climate plans.