The Silent Invasion of America's Courts

Throughout my military career, I have observed and analyzed the “spectrum of conflict” from peace to war. Between peace and war, the U.S. is challenged by extensive threats in the “gray zone” also known as asymmetric and hybrid warfare. 

Given the open and transparent nature of our society that creates an ideal environment for the exchange of ideas that drive innovation and creativity, we open our institutions of learning to the world with 1.1 million students to study in the U.S. for school year 2023-24 alone. On the positive side, exchanging ideas with our global partners expands and strengthens partnership based on common understanding of our society and institutions. On the negative sides, it provides knowledge of potential weaknesses that can be exploited by our adversaries. TPLF, that has its genesis in Australia, is just one example. 

Through litigation, foreign backers can also gain access to sensitive corporate documents and trade secrets under the guise of legal discovery. Once obtained, this information can be transferred to foreign businesses or governments, eroding the technological advantage that has proven to be a key component of American national defense and economic strength. Such litigation-backed espionage is another potential threat that cannot be ignored. Trade secrets gained through lawfare are particularly concerning regarding dual-use manufacturing that has both military and civilian applications. 

A striking real-world example of this threat can be found in a lawsuit recently filed in California. On the surface, the People of the State of California v. ExxonMobil appears to be an environmental dispute over plastic recycling, but a closer look shows just how heavily foreign influence has played in the litigation. 

A countersuit in the case has revealed that the original lawsuit was financially funded by the law firm Cotchett, Pitre & McCarthy through its client the Minderoo Foundation, who we know from court filings is a foreign non-profit controlled by one of the largest shareholders of Australian mining giant, Fortescue. Because Fortescue competes with ExxonMobil within the energy sector, it’s not a stretch to conclude that the lawsuit was funded to disrupt a competitor in the United States. 

To execute their plan, Cotchett, Pitre & McCarthy recruited plaintiffs and orchestrated the litigation against ExxonMobil while attempting to conceal its true financial backing. The U.S. Department of Justice (DOJ) later advised the law firm to register as a foreign agent, which ultimately led to the exposure of the lawsuit’s financial ties. This illustrates how foreign funded litigation that is disguised as public interest litigation can be used to target strategic industries or tilt the economic playing field in favor of overseas interests. 

While this action was taken by a company in an allied nation with what appears to be straightforward profit-driven motivations, reports indicate that actors in less friendly countries like China and Russia have started looking at ways to use TPLF to their advantage. Coupled with advantages our adversaries can gain through information gathering using of artificial intelligence (AI), we can see the challenges of operating in the “gray zone” more clearly. This underscores the need for Congress and regulatory bodies to take immediate action to curb foreign exploitation of the U.S. legal system. 

Greater transparency surrounding foreign funding of lawsuits is an important first step. Judges, defendants, and regulators should have clear visibility into who is financing litigation in U.S. courts and their motivations. Law firms and entities engaged in politically or economically motivated lawsuits on behalf of foreign actors should likewise be required to register as foreign agents and the Department of Justice should have greater oversight of lawsuits targeting critical industries to ensure they are not being manipulated for foreign gain.

The advent of foreign funded litigation against strategic domestic industries serves as a stark warning that America’s adversaries do not need missiles or cyberattacks to undermine our economic stability—our courtrooms can be weaponized just as effectively. The battlefield has shifted, and it is time for America to defend itself where some of the next fighting will take place.

Sergio de la Peña, a retired U.S. Army colonel, is the former Deputy Assistant Secretary of Defense for Western Hemisphere Affairs.