By Karen Savage
Massachusetts Attorney General Maura Healey pointedly rebuked Exxon’s claim that her climate fraud suit against the company qualifies as a SLAPP suit intended to silence its “views” on climate change. The AG’s office is responding to the company’s attempt to shield itself from her lawsuit using a statute designed to protect citizens who protest.
Massachusetts state law prohibits SLAPP lawsuits—which are designed to harass and intimidate those exercising their First Amendment rights, most often filed by corporations or other powerful entities in an attempt to silence activists, consumers, community advocates and journalists. The law is meant to protect those people, who often lack the resources to defend themselves against wealthy corporations.
“ExxonMobil, one of the world’s most powerful companies, now invokes a statute intended to shield people of modest means from meritless suits by large private interests that seek to punish those people for exercising their right to petition the government,” the AG’s office wrote in a brief made public Tuesday. “ExxonMobil is not a person of modest means and the Commonwealth is not a large private interest.”
After a three-year investigation, the AG filed suit in Massachusetts state court in 2019, alleging Exxon has known for decades that its products drive climate change, but misled consumers and investors to bolster its own profits. Exxon has tried repeatedly to shake Healey’s investigation and lawsuit. Thus far, all have failed.
Healey claims Exxon used deceptive advertising, failed to disclose climate-related risks to its investors and failed to disclose how catastrophic climate impacts from continued fossil fuel burning could threaten the global economy. The AG amended the suit earlier this year, accusing the oil giant of continuing to deceive shareholders about future demand for its products.
“Nothing in the text of the anti-SLAPP statute demonstrates that it extends to actions by the attorney general … to protect consumers and investors from unfair and deceptive acts and practices and advance the public interest,” the AG’s office told the court, adding that to do so would hamper law enforcement.
Exxon argues that the AG is violating its right to petition and “objects to ExxonMobil’s production and promotion of fossil fuels.” The company maintains Healey “brought this action to coerce and suppress divergent viewpoints on climate policy precisely because it fears that those viewpoints are persuasive.”
There is overwhelming scientific consensus that climate change is an existential global threat that can only be minimized by the reduction of greenhouse gas emissions caused by the burning of fossil fuel products.
“The First Amendment does not protect ExxonMobil’s deceptive marketing—in product advertisements, promotional materials, communications with investors and private meetings with the senior management of Boston investment firms—which, in any event, do not constitute petitioning,” the AG’s office wrote.
The Massachusetts Supreme Court has determined that motions to dismiss based on the anti-SLAPP statute should be denied even if those actions do qualify as petitioning, when claims related to those activities are strong enough to have a chance of succeeding.
Exxon maintains the AG’s claims are baseless.
“ExxonMobil has concealed nothing, misled no one, and is a defendant in this action only because it refuses to genuflect to the attorney general’s climate policy orthodoxy,” attorneys for Exxon told the court.
That couldn’t be further from the truth, according to Healey.
“Like the tobacco industry before it, ExxonMobil has engaged in a cover-up: it hid what it knew and deceptively represented to Massachusetts investors that it is managing the climate risks that threaten to topple the company while engaging in deceptive marketing schemes that tell Massachusetts consumers that using ExxonMobil fossil-fuel products benefits the environment and reduces emissions,” the AG’s office wrote.
Exxon filed a separate motion to dismiss in August, contending that it has not directly sold certain types of stocks and securities directly to Massachusetts investors and arguing that Healey has no jurisdiction over it because it is based in Texas. The Massachusetts Supreme Judicial Court has already rejected a similar effort by Exxon to evade Healey’s jurisdiction by arguing it doesn’t sell gas in Massachusetts.
The motions and opposition briefs were filed with the court over the past several months and were released as a package on Wednesday.
Under Massachusetts’ law, motions to dismiss under the state’s anti-SLAPP law are to be handled “as expeditiously as possible” and the discovery process is halted until the court has ruled on the motion. Oral arguments will likely be heard early next year.