Commonwealth v. E Xxon Mobil Corp.

• Decision Date: 24 May 2022
• Docket Number: SJC-13211
• Parties: COMMONWEALTH v. E XXON MOBIL CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

489 Mass. 724

187 N.E.3d 393

COMMONWEALTH

v.E XXON MOBIL CORPORATION.

SJC-13211

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 9, 2022.

Decided May 24, 2022.

Justin A. Anderson, of the District of Columbia (Patrick J. Conlon, of Texas, Jeremy M. Liss, of New York, & Thomas C. Frongillo also present) for the defendant.

Seth Schofield, Assistant Attorney General (Richard A. Johnston & Christopher G. Courchesne, Assistant Attorneys General, also present) for the Commonwealth.

Edward Notis-McConarty, Jennifer Grace Miller, M. Patrick Moore, & Clinton R. Prospere, for Francis X. Bellotti & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

KAFKER, J.

The Attorney General brought a civil enforcement action against Exxon Mobil Corporation (Exxon Mobil) for various alleged violations of G. L. c. 93A based on the company's communications with investors and consumers related to the impact of climate change. Exxon Mobil contended that the action was motivated by its "petitioning" activity and filed a special motion to dismiss under G. L. c. 231, § 59H, the "anti-SLAPP" statute (anti-SLAPP motion).¹ The Attorney General responded that the anti-SLAPP statute applies to private parties but not to the Attorney General, and that even if the anti-SLAPP statute did apply to the Attorney General, the instant action was not brought in response to petitioning activities, but rather for unfair or deceptive practices prohibited by G. L. c. 93A. A Superior Court judge denied the anti-SLAPP motion, finding that at least some of the activity alleged in the complaint was not "petitioning" within the meaning of the statute. We affirm on the alternate ground that G. L. c. 231, § 59H, does not apply to civil enforcement actions by the Attorney General.²

1. Background. The present appeal marks the latest round in a years-long struggle between Exxon Mobil and the Attorney General that has played out before courts across the country, including our own. See, e.g., Exxon Mobil Corp. v. Attorney Gen., 479 Mass. 312, 313-314, 94 N.E.3d 786 (2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 794, 202 L.Ed.2d 570 (2019). We limit ourselves to the background relevant to disposing of Exxon Mobil's motion.

In October 2019, the Attorney General brought a civil enforcement action on behalf of the Commonwealth against Exxon Mobil in the Superior Court pursuant to her powers under G. L. c. 12, §§ 3 and 11D, and G. L. c. 93A, § 4. After Exxon Mobil unsuccessfully attempted to remove the action to Federal court, see Massachusetts v. Exxon Mobil Corp., 462 F. Supp. 3d 31, 34 (D. Mass. 2020), the Attorney General filed an amended complaint. The amended complaint alleged violations of G. L. c. 93A and related regulations for factual misstatements and failures to disclose information related to Exxon Mobil's products and their impact on the climate. In particular, the first count of the complaint alleged that Exxon Mobil misrepresented or failed to disclose material facts to Exxon Mobil investors in Massachusetts related to climate change and its impact on Exxon Mobil's business. The second count alleged that certain marketing and promotional materials misled Massachusetts consumers as to the climate impact of Exxon Mobil's products. Finally, the third count alleged that Exxon Mobil is misleading Massachusetts consumers through so-called "greenwashing" campaigns that wrongly imply that Exxon Mobil is taking steps to solve climate change and reduce carbon emissions, thereby influencing consumer purchasing decisions.

Claiming that the Attorney General's complaint was based on its "petitioning" activity, Exxon Mobil filed a special motion to dismiss all counts under G. L. c. 231, § 59H. Without deciding the question whether the anti-SLAPP statute applied to enforcement actions by the Attorney General, a Superior Court judge denied the motion, finding that, although some of the activities mentioned in the complaint constituted "petitioning" within the meaning of the anti-SLAPP statute, the investor communications and marketing efforts in question did not, and therefore the challenged claims were not "solely based on" Exxon Mobil's petitioning activity as required by the anti-SLAPP statute and case law. See Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159, 75 N.E.3d 21 (2017), S.C., 483 Mass. 200, 130 N.E.3d 1242 (2019). Exxon Mobil exercised its right to interlocutory review of the denial of its special motion. See Fabre v. Walton, 436 Mass. 517, 521-522, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004). This court granted the Attorney General's application for direct appellate review.

2. Discussion. a. Standard of review. Our review is determined by the threshold issue whether the anti-SLAPP statute applies at all to civil enforcement proceedings brought by the Attorney General. We conclude that it does not, and therefore do not analyze whether Exxon Mobil's actions constituted "petitioning" or whether the other requirements for dismissal were met.

The question whether G. L. c. 231, § 59H, applies to the Attorney General is a question of statutory interpretation. "When interpreting a statute, our primary duty is to ‘effectuate the intent of the Legislature in enacting it.’ " Wallace W. v. Commonwealth, 482 Mass. 789, 793, 128 N.E.3d 581 (2019), quoting Matter of E.C., 479 Mass. 113, 118, 92 N.E.3d 724 (2018). We determine this intent "from all [the statute's] words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 331, 173 N.E.3d 333 (2021), quoting Commissioner of Revenue v. Dupee, 423 Mass. 617, 620, 670 N.E.2d 173 (1996). We must also consider that interpreting general statutes to be enforceable against the Commonwealth intrudes on governmental sovereignty, and is therefore disfavored, as reflected in various rules of statutory construction. Hansen v. Commonwealth, 344 Mass. 214, 219-220, 181 N.E.2d 843 (1962). Additionally, " ‘[t]o the extent there is any ambiguity in the statutory language, we turn to the legislative history’ as a guide to legislative intent." Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248, 254, 172 N.E.3d 737 (2021), quoting Ajemian v. Yahoo!, Inc., 478 Mass. 169, 182, 84 N.E.3d 766 (2017), cert. denied sub nom. Oath Holdings, Inc. v. Ajemian, ––– U.S. ––––, 138 S. Ct. 1327, 200 L.Ed.2d 526 (2018). b. G. L. c. 231, § 59H. Section 59H provides:

"In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss."³

The statute then provides:

"The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party."⁴

The statute also addresses the Attorney General specifically: "The attorney general, on [her] behalf or on behalf of any government agency or subdivision to which the moving party's acts were directed, may intervene to defend or otherwise support the moving party on such special motion." G. L. c. 231, § 59H.

Filing a special motion has an immediate and important effect on the litigation, short-circuiting and rerouting the ordinary trial and appellate process. The court must "advance any such special motion so that it may be heard and determined as expeditiously as possible." G. L. c. 231, § 59H. Filing the motion also stays discovery, although a court may allow "specified discovery" upon motion and a hearing with good cause shown. Id. A prevailing movant is also entitled to "costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters." Id.⁵ c. Application to civil enforcement proceedings. The central question is whether the anti-SLAPP statute applies to civil enforcement proceedings brought by the Attorney General. We conclude that it does not, relying on the specific statutory language, the rules of construction applicable to the enforcement of statutes against the Commonwealth, and the legislative history and purpose of the anti-SLAPP statute.

The inquiry does not simply end, as Exxon Mobil suggests, with the employment of the general term "party" in the first two sentences of § 59H defining who can sue and be sued. Rather, we conclude that the fourth sentence, specifically defining the role of the Attorney General, is most informative. See G. L. c. 231, § 59H ("The attorney general, on [her] behalf or on behalf of any government agency or subdivision to which the moving party's acts were directed, may intervene to defend or otherwise support the moving party on such special motion"). That the Attorney General is mentioned in connection with her capacity to intervene, but not in any other capacity, suggests that the Legislature envisioned the Attorney General's role in § 59H motions as limited to such intervention.

Indeed, interpreting the general term "party" here to include the Commonwealth or the Attorney General presents a number of problems. As the former Attorneys General explain in their amicus brief, there are conceptual difficulties with including the Commonwealth as a "party," authorized to bring special motions to dismiss:

"Does the Commonwealth have a protected right to petition itself? Could someone else bring a claim that was ‘based on’ the Commonwealth's petitioning of itself? That seems unlikely given that the right

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