FILED: NEW YORK COUNTY CLERK 10/27/2016 12:04 PM INDEX NO. 451962/2016 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/27/2016 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FIRST DEPARTMENT In the Matter of the Application of the PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Petitioner, For an order pursuant to C.P.L.R. 2308(b) to compel compliance with a subpoena issued by the Attorney General -against- Index No. 451962/2016 IAS Part 61 Justice Barry Ostrager PRICEWATERHOUSECOOPERS LLP and EXXON MOBIL CORPORATION, Respondents. PREARGUMENT STATEMENT Respondent-Appellant Exxon Mobil Corporation ( ExxonMobil ) submits this Pre-Argument Statement pursuant to 600.17 of the Rules of the Appellate Division of the Supreme Court of the State of New York, First Department. 1. TITLE OF ACTION: The action s title is set forth in the caption above. 2. FULL NAMES OF ORIGINAL PARTIES: The original parties are those identified in the caption above, The People of the State of New York, by Eric T. Schneiderman, Attorney General of the State of New York and PricewaterhouseCoopers LLP and Exxon Mobil Corporation. 1 of 10
3. COUNSEL FOR APPELLANT: PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP Theodore V. Wells, Jr. twells@paulweiss.com Michele Hirshman mhirshman@paulweiss.com 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 Fax: (212) 757-3990 Michelle Parikh mparikh@paulweiss.com 2001 K Street, NW Washington, D.C. 20006-1047 (202) 223-7300 Fax: (202) 223-7420 4. COUNSEL FOR RESPONDENT: Eric T. Schneiderman Attorney General of the State of New York Katherine C. Milgram Bureau Chief, Investor Protection Bureau John Oleske Senior Enforcement Counsel Jonathan Zweig Assistant Attorney General Office of the New York State Attorney General 120 Broadway New York, N.Y. 10271 (212) 416-6494 5. COURT FROM WHICH APPEAL IS TAKEN: This appeal is taken from an Order of the Supreme Court of the State of New York, County of New York (Honorable Barry Ostrager) (IAS Part 61), dated on October 26, 2016 and entered in the 2 of 10
Office of the Clerk of New York County on October 26, 2016. Notice of Entry of the Order was served on the parties on October 27, 2016 by Respondent-Appellant Exxon Mobil Corporation. 6. NATURE AND OBJECT OF CAUSES OF ACTION: On August 19, 2016, the People of the State of New York, by the Attorney General of the State of New York, Eric T. Schneiderman, issued a subpoena (the PwC Subpoena ) to ExxonMobil s independent auditor, PricewaterhouseCoopers LLP ( PwC ). On October 14, 2016, the Attorney General filed a proposed order to show cause, moving to compel PwC and ExxonMobil to comply with the PwC Subpoena without applying the accountant-client privilege as recognized under Texas Occupations Code 901.457. 7. RESULT REACHED IN COURT BELOW: On October 26, 2016, the Honorable Barry Ostrager granted the Attorney General s motion to compel, ordering PwC and ExxonMobil to comply with the PwC Subpoena because (1) the Texas accountant-client privilege does not preclude disclosure of documents pursuant to the PwC Subpoena; and (2) even if there were an accountant-client privilege under Texas law, New York law applies to the Attorney General s motion. This appeal arises from that Order, dated October 26, 2016. 8. GROUNDS FOR SEEKING REVERSAL: Respondent-Appellant ExxonMobil seeks reversal of the trial court s Order, dated October 26, 2016, on the grounds that it incorrectly decided two issues of first impression in granting the Attorney General s Motion to Compel, the first regarding the applicability of the Texas accountant-client privilege to an investigative subpoena, and the second regarding the 3 of 10
operation of choice of law principles to determine what privilege law applies to an investigation as opposed to an ongoing litigation. 9. RELATED ACTIONS OR PROCEEDINGS NOW PENDING IN ANY COURT: There are no related actions or proceedings concerning the PwC Subpoena that are now pending in any court of this or any jurisdiction. Dated: New York, New York October 27, 2016 Respectfully submitted, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP /s/ Theodore V. Wells, Jr. Theodore V. Wells, Jr. twells@paulweiss.com Michele Hirshman mhirshman@paulweiss.com PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 Fax: (212) 757-3990 Michelle Parikh mparikh@paulweiss.com 2001 K Street, NW Washington, D.C. 20006-1047 (202) 223-7300 Fax: (202) 223-7420 Attorneys for Exxon Mobil Corporation 4 of 10
To: Eric T. Schneiderman Attorney General of the State of New York Katherine C. Milgram Bureau Chief, Investor Protection Bureau John Oleske Senior Enforcement Counsel Jonathan Zweig Assistant Attorney General Office of the New York State Attorney General 120 Broadway New York, N.Y. 10271 (212) 416-6494 David Meister Jocelyn Strauber SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 4 Times Square New York, New York 10036 Telephone: (212) 735-3000 Facsimile: (917) 777-3000 Attorneys for PricewaterhouseCoopers LLP 5 of 10
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