Mass. Scored a Victory in Its Exxon Lawsuit. What’s Next?

Bob Seay, host of WGBH’s Morning Edition, interviewed WGBH News legal analyst and Northeastern University law professor Daniel Medwed about Massachusetts Attorney General Maura Healey’s recent victory against ExxonMobil in an ongoing lawsuit against the company. Below is a lightly edited transcript of their conversation

My understanding is the attorney general is suing ExxonMobil for failing to provide accurate information about the effects of its products on climate change.  What is the basis of the suit, and why might Massachusetts have jurisdiction?

The theory is that ExxonMobil violated the Massachusetts consumer protection statute for decades by neglecting to disclose information about the impact of many of its energy products on the climate — information that would have altered consumers spending preferences and basically consisted of fraud. Because ExxonMobil has long conducted business in Massachusetts, the attorney general claimed that the Commonwealth and its residents were substantially affected by Exxon’s misbehavior.

How unusual is this type of case — for a state attorney general to go after a large multinational corporation that lacks any direct ties to the states and is headquartered elsewhere?

This litigation reminds of me the tactics used several years ago by some state attorneys general to go after “Big Tobacco.” The main difference, of course, is that with the tobacco litigation one could show a direct effect between the behavior — misleading information — and the effect on the consumer — purchasing the goods and contracting lung cancer. Here, the effect is more attenuated — that consumers purchased ExxonMobil products when they might not have otherwise done so, and that contributed to climate problems which, in turn, has jeopardized all of us.

Specifically, what happened last week to alter the trajectory of the case?

Several major developments occurred at the state trial court. First, the Superior Court judge rejected Exxon’s attempt to remove the case to federal court in Texas. Second, and more notably, the court ordered Exxon to turn over 40 years of documents related to what it knew and did not know about the effects of its products on climate change. This, of course, is critical to the Commonwealth’s case — it’s very much unclear what Exxon knew and at what time it knew it. These documents will go a long way in filling in the frankly sizable gaps in the attorney general’s case

What should we expect in terms of next steps in the case?

ExxonMobil has announced that it is reviewing the decision to determine its course of action, but I anticipate two moves.

First, Exxon will probably appeal this decision to the Massachusetts appellate courts. That is unlikely to produce a different outcome because appellate courts often defer to trial courts when it comes to preliminary determinations like this. Still, it would prolong the case — and delay is often the name of the game for large, deep-pocketed civil defendants.

Second, even if ExxonMobil is eventually compelled to turn over these documents, I suspect there were will be epeated skirmishes about which documents are and are not relevant, which portions should be redacted or excised somehow because they contain sensitive information, and so on. So we’re far from done here, Bob.

Now Exxon has also claimed that Healey is suing for political reasons and should be removed from the case. Is that claim likely to be a factor?

I doubt it — the trial court judge also denied Exxon’s request to formally remove Maura Healey from the case. As to whether this case is politically motivated, I very much doubt it — our attorney general is one of the most principled lawyers in the public realm. But sure, few decisions like this are entirely divorced from politics; there is the old adage that “A.G.” stands for “almost governor.”

Source: news.wgbh.org news.wgbh.org

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