34 Mass. L. Rptr. 104
Suffolk Mass. Super. Ct.2017Background
- In April 2016 the Massachusetts Attorney General issued a Civil Investigative Demand (CID) to ExxonMobil under G.L. c. 93A §6 seeking documents about Exxon’s study of CO2 emissions, what Exxon knew and when, and what it told consumers (1976–present).
- Exxon sought to set aside or modify the CID in Superior Court and moved for a protective order; the Commonwealth moved to compel compliance.
- Exxon argued lack of personal jurisdiction (incorporated elsewhere; branded stations in MA are independently owned under Brand-Use/Franchise (BFA) agreements), vagueness/unreasonable burden, arbitrary/political motivation, bias by the Attorney General, and sought a stay pending a Texas federal suit.
- The court reviewed a sample BFA and found provisions (notably marketing control/advertising approval) showed Exxon retained sufficient control over branded outlets’ marketing to establish transaction of business in MA and minimum contacts for due process purposes.
- The court rejected Exxon’s challenges to the Attorney General’s belief basis, to the specificity/burden of the CID (noting Exxon had produced voluminous documents to NY AG), and to alleged bias from public statements; it denied a stay and ordered compliance subject to Rule 9C privilege/confidentiality negotiations.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Exxon) | Held |
|---|---|---|---|
| Personal jurisdiction under G.L. c. 223A §3(a) | BFA-controlled branded outlets sell Exxon products to MA consumers; BFA provisions show Exxon transacts business here | Exxon says branded stations are independently owned, it neither sold fuel in MA nor owned/operated stations recently, and BFA provisions do not create agency | Held: Jurisdiction proper — BFA’s marketing/advertising control imputes the relevant conduct and Exxon has minimum contacts with MA |
| Whether AG acted arbitrarily/capriciously in issuing CID | AG had a belief Exxon may have misled consumers/investors about climate risks — sufficient statutory basis to investigate | Exxon says AG lacked reasonable belief, acted politically and engaged in viewpoint discrimination | Held: CID not arbitrary/capricious — AG’s concerns about possible misrepresentations suffice under c.93A §6 |
| Specificity and undue burden of the CID | Broad documentary demands are necessary for effective investigation into what Exxon knew/told and when | CID is vague (e.g., “awareness,” “internal considerations”) and imposes unreasonable burden | Held: CID sufficiently specific and not unduly burdensome; prior production to NY AG reduces burden; parties to meet under Rule 9C for privilege/confidentiality limits |
| Disqualification of the Attorney General for bias | Public statements by AG show predetermined outcome and bias; request appointment of independent investigator | AG’s statements explain basis for investigation and are within public-duty speech; not disqualifying | Held: AG not disqualified — remarks do not show actionable bias or improper conduct |
Key Cases Cited
- Matter of Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353 (discusses CID specificity and breadth)
- CUNA Mutual Ins. Soc. v. Attorney Gen., 380 Mass. 539 (CID challenger bears heavy burden; probable cause not required)
- Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1 (long-arm and due process two-step jurisdiction analysis)
- Tatro v. Manor Care, Inc., 416 Mass. 763 (broad construction of "transacting any business" and "but-for" test)
- Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607 (right-to-control test for franchisor liability)
- Lind v. Domino’s Pizza, LLC, 87 Mass. App. Ct. 650 (limits of franchisor control for vicarious liability)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (minimum contacts and purposeful availment framework)
- Bulldog Investors Gen. Partnership v. Secretary of the Commonwealth, 457 Mass. 210 (forum state interest in enforcing local law)
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (stream-of-commerce and forum expectations)
- Aspinall v. Philip Morris Cos., 442 Mass. 381 (false or misleading advertising under G.L.c.93A)
- Commonwealth v. DeCotis, 366 Mass. 234 (G.L.c.93A protects consumers via disclosure requirements)
- Attorney Gen. v. Bodimetric Profiles, 404 Mass. 152 (broad AG investigatory powers under c.93A)
- Buckley v. Fitzsimmons, 509 U.S. 259 (public statements by prosecutors may be integral to their duties)
- Goldstein v. Galvin, 719 F.3d 16 (public officials’ speech obligations on matters of public concern)
- Commonwealth v. Ellis, 429 Mass. 362 (prosecutorial duty and appearance of impartiality)
- WR Grace & Co. v. Hartford Accident & Indemnity Co., 407 Mass. 572 (standards for staying actions in interest of substantial justice)
- New Amsterdam Casualty Co. v. Estes, 353 Mass. 90 (forum choice considerations; familiarity with governing law)