|Mass. A.G. Maura Healey|
(Edahlpr CC BY-SA 4.0)
As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change." Exxon resisted the CID on personal jurisdiction grounds. Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469). A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018). Exxon is incorporated in New Jersey and headquartered in Texas.
The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained. Exxon denied "suit-related" activity in Massachusetts. But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.
|Exxon franchise in Durham, N.C.|
(Ildar Sagdejev CC BY-SA 4.0)
The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country. The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830). If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).