In re Civil Investigative Demand No. 2016-EPD-36

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A Massachusetts Superior Court denied ExxonMobil Corporation’s (Exxon’s) motion to set aside a civil investigative demand (CID) issued by the Massachusetts attorney general seeking information on Exxon’s study of carbon dioxide emissions and their effect on climate change. The court also denied Exxon’s request that it stay its adjudication of the motion pending the resolution of the federal lawsuit brought by Exxon in Texas against the attorney general in which Exxon sought to bar enforcement of the CID. The Superior Court said that Massachusetts state courts would be more familiar with the state consumer protection act pursuant to which the CID was issued and further noted that the statute directed challenges to CID be brought in state court. The court concluded that it had personal jurisdiction over Exxon, finding that Exxon’s due process rights were not offended given its establishment of “minimum contacts” in Massachusetts. The court also said that the state consumer protection act would provide “hollow protection against non-resident defendants” if the court did not assert jurisdiction. The court also found that Exxon had not met its burden of showing that the attorney general acted arbitrarily and capriciously in issuing the CID, indicating her concerns regarding potential misrepresentations to Massachusetts consumers justified the CID. The court was not swayed by Exxon’s argument that it was being subjected to viewpoint discrimination for its views on global warming. The court also rejected Exxon’s arguments that the CID lacked the requisite specificity and was unreasonably burdensome. In addition, the court denied Exxon’s request for disqualification of the attorney general and appointment of an independent investigator. The court noted that the attorney general’s public remarks at a March 2016 press conference with other attorneys general did not evidence actionable bias and that her comments did nothing more than explain her reasons for the investigation to the consumers she represents. The court granted the attorney general’s request to compel Exxon to respond to the CID.