Petition for Writ of Certiorari — Exxon Mobil Corporation, Petitioner v. Maura Healey, Attorney General of Massachussetts

APPENDIX

TABLE OF CONTENTS

Appendix A:

Massachusetts Supreme Judicial Court

opinion, April 13, 2018 .................................1a

Appendix B:

Trial court opinion,

January 11, 2017 ........................................27a

APPENDIX A

SUPREME JUDICIAL COURT OF MASSACHUSETTS

No. SJC - 12376

EXXON MOBIL CORPORATION

v.

ATTORNEY GENERAL.

Argued December 5, 2017

Decided April 13, 2018

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

OPINION

CYPHER, J.

In 2015, news reporters released internal documents

from Exxon Mobil Corporation (Exxon) purporting to

show that the company knew, long before the general public, that emissions from fossil fuels—Exxon’s principal

product—contributed to global warming and climate

change, and that in order to avoid the consequences of climate change it would be necessary to reduce drastically

global fossil fuel consumption. The documents also purported to establish that despite Exxon’s knowledge of climate risks, the company failed to disclose that knowledge

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to the public, and instead sought to undermine the evidence of climate change altogether, in order to preserve

its value as a company.

Upon reviewing this information, the Attorney General believed that Exxon’s marketing or sale of fossil fuel

products in Massachusetts may have violated the State’s

primary consumer protection law, G. L. c. 93A. Based on

her authority under G. L. c. 93A, § 6, 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 responded by filing a motion in the Superior

Court, pursuant to G. L. c. 93A, § 6(7), seeking to set aside

or modify the C.I.D. Exxon argued that (1) Exxon is not

subject to personal jurisdiction in Massachusetts; (2) the

Attorney General is biased against Exxon and should be

disqualified; (3) the C.I.D. violates Exxon’s statutory and

constitutional rights; and (4) Exxon’s Superior Court case

should be stayed pending a ruling on Exxon’s request for

relief in Federal court.1 The Attorney General crossmoved to compel Exxon to comply with the C.I.D. A Superior Court judge denied Exxon’s motion and allowed

the Attorney General’s cross motion to compel. Exxon appealed, and we transferred the case from the Appeals

Court on our own motion. We conclude that there is personal jurisdiction over Exxon with respect to the Attorney

General’s investigation, and that the judge did not abuse

One day before filing its instant Superior Court motion, Exxon

filed a complaint for declaratory and injunctive relief in the United

States District Court for the Northern District of Texas, challenging

the C.I.D. on constitutional grounds not raised in this action. Exxon

Mobil Corp. vs. Healey, U.S. Dist. Ct., No. 4:16-CV-469, (N.D. Tex.

June 15, 2016).

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her discretion in denying Exxon’s requests to set aside the

C.I.D., disqualify the Attorney General, and issue a stay.

We affirm the judge’s order in its entirety.2

1. Personal jurisdiction. Exxon’s primary argument

is that, as a nonresident corporation, it is not subject to

personal jurisdiction in Massachusetts. For a nonresident

to be subject to the authority of a Massachusetts court,

the exercise of jurisdiction must satisfy both Massachusetts’s long-arm statute, G. L. c. 223A, § 3, and the requirements of the due process clause of the Fourteenth

Amendment to the United States Constitution. SCVNGR,

Inc. v. Punchh, Inc., 478 Mass. 324, 325 (2017). The Attorney General “has the burden of establishing the facts

upon which the question of personal jurisdiction over

[Exxon] is to be determined.” Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978), quoting

Nichols Assocs. v. Starr, 4 Mass. App. Ct. 91, 93 (1976).

A business is a “resident,” and therefore subject to the

forum’s general jurisdiction, if the business is domiciled

or incorporated or has its principal place of business in the

forum State. Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 924, 131 (2011). Exxon is incorporated in New Jersey and headquartered in Texas. Because “[t]he total of [Exxon’s] activities in Massachusetts

does not approach the volume required for an assertion of

general jurisdiction,” Tatro v. Manor Care, Inc., 416

Mass. 763, 772 (1994), citing Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 413-416 (1984), our

inquiry in this case concerns the exercise of specific jurisdiction. This requires an “affiliatio[n] between the forum

2

We acknowledge the amicus briefs submitted by five former Massachusetts Attorneys General and the Chamber of Commerce of the

United States of America.

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and the underlying controversy” (citation omitted). Goodyear Dunlop Tires Operations, S.A., supra at 919, 131 S.

Ct. 2846. See G. L. c. 223A, § 3 (granting jurisdiction over

claims “arising from” certain enumerated grounds occurring within Massachusetts); Tatro, supra at 772, 625

N.E.2d 549, citing Burger King Corp. v. Rudzewicz, 471

U.S. 462, 472, 105 S. Ct. 2174 (1985) (“The plaintiff’s claim

must arise out of, or relate to, the defendant’s forum contacts”).

Exxon denies any such affiliation in this case, contending that it “engages in no suit-related conduct” in Massachusetts. Here there is no “suit,” however, as this matter

involves an investigation—a precursor to any formal legal

action by the Attorney General. So while our typical inquiry asks whether there is a nexus between the defendant’s in-State activities and the plaintiff’s legal claim(s),

the investigatory context requires that we broaden our

analysis to consider the relationship between Exxon’s

Massachusetts activities and the “central areas of inquiry

covered by the [Attorney General’s] investigation, regardless of whether that investigation has yet to indicate

[any] . . . wrongdoing.” Securities & Exch. Comm’n vs.

Lines Overseas Mgt., Ltd., U.S. Dist. Ct., No. Civ. A. 04302 RWR/AK, (D.D.C. Jan. 7, 2005). Cf. Gucci Am., Inc.

v. Weixing Li, 768 F.3d 122, 141-142 (2d Cir. 2014) (personal jurisdiction in nonparty discovery dispute “focus[es]

on the connection between the nonparty’s contacts with

the forum and the discovery order at issue”); Matter of an

Application to Enforce Admin. Subpoenas Duces Tecum

of the Secs. Exch. Comm’n v. Knowles, 87 F.3d 413, 418

(10th Cir. 1996) (personal jurisdiction over nonresident in

subpoena enforcement action, which was part of investigation into potential violation of Federal securities laws,

where “[t]he underlying investigation and th[e] subpoena

. . . ar[o]se out of [nonresident’s] contacts with the United

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States”). At this stage, the Attorney General is statutorily

authorized to investigate whatever conduct she believes

may constitute a violation of G. L. c. 93A. G. L. c. 93A,

§ 6(1). We therefore must construe the C.I.D. broadly,

and in connection with what G. L. c. 93A protects.

General Laws c. 93A “is a statute of broad impact” that

prohibits “unfair methods of competition” and “unfair or

deceptive acts or practices in the conduct of any trade or

commerce.” Slaney v. Westwood Auto, Inc., 366 Mass.

688, 693-694 (1975). See G. L. c. 93A, § 2(a). “Under [G. L.

c.] 93A, an act or practice is unfair if it falls ‘within at least

the penumbra of some common-law, statutory, or other

established concept of unfairness’; ‘is immoral, unethical,

oppressive, or unscrupulous’; and ‘causes substantial injury to consumers.’ ” Walsh v. TelTech Sys., Inc., 821 F.3d

155, 160 (1st Cir. 2016), quoting PMP Assocs., Inc. v.

Globe Newspaper Co., 366 Mass. 593, 596 (1975). The same

protection also applies in the commercial context, as G. L.

c. 93A extends “to persons engaged in trade or commerce

in business transactions with other persons also engaged

in trade or commerce.” Kraft Power Corp. v. Merrill, 464

Mass. 145, 155 (2013), quoting Manning v. Zuckerman,

388 Mass. 8, 12 (1983). See Kraft Power Corp., supra, citing G. L. c. 93A, § 11 (“The development of the statute . . .

suggests that the unfair or deceptive acts or practices prohibited are those that may arise in dealings between discrete, independent business entities”).

Our analysis of what constitutes an unfair or deceptive

act or practice requires a case-by-case analysis, see Kattar v. Demoulas, 433 Mass. 1, 14 (2000), and is neither dependent on traditional concepts nor limited by preexisting

rights or remedies. Travis v. McDonald, 397 Mass. 230,

232 (1986). “This flexible set of guidelines as to what

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should be considered lawful or unlawful under c. 93A suggests that the Legislature intended the terms ‘unfair and

deceptive’ to grow and change with the times.” Nei v. Burley, 388 Mass. 307, 313 (1983). The Attorney General’s investigation concerns climate change caused by manmade

greenhouse gas emissions—a distinctly modern threat

that grows more serious with time, and the effects of

which are already being felt in Massachusetts. See, e.g.,

Massachusetts v. Environmental Protection Agency, 549

U.S. 497, 521-523, 127 S. Ct. 1438 (2007) (describing current and future harms from climate change affecting Massachusetts). More particularly, the investigation is premised on the Attorney General’s belief that Exxon may have

misled Massachusetts residents about the impact of fossil

fuels on both the Earth’s climate and the value of the company, in violation of c. 93A. “Despite [Exxon’s] sophisticated internal knowledge” about that impact, the Attorney General states, “it appears that . . . Exxon failed to

disclose what it knew to either the consumers who purchased its fossil fuel products or investors who purchased

its securities.” Because the crux of a failure to disclose

theory is knowledge, the C.I.D. seeks “information related to . . . what Exxon knew about (a) how combustion of

fossil fuels (its primary product) contributes to climate

change and (b) the risk that climate change creates for the

value of Exxon’s businesses and assets.” The C.I.D. also

seeks information about “when Exxon learned those

facts” and “what Exxon told Massachusetts consumers

and investors, among others, about [them].” The primary

question for us is whether there is a sufficient connection

between those inquiries and Exxon’s Massachusettsbased activities.

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a. Long-arm analysis.3 Massachusetts’s long-arm

statute, G. L. c. 223A, § 3, “sets out a list of specific instances in which a Massachusetts court may acquire personal jurisdiction over a nonresident defendant.” Tatro,

416 Mass. at 767. “A plaintiff has the burden of establishing facts to show that the ground relied on under § 3 is

present.” Id. In the Superior Court, the Attorney General

invoked the “transacting any business” clause of § 3, so we

focus our inquiry on that subsection. See G. L. c. 223A, §

3(a) (“[a] court may exercise personal jurisdiction over a

person . . . as to a cause of action in law or equity arising

from the person’s . . . transacting any business in this commonwealth”). “For jurisdiction to exist under § 3(a), the

facts must satisfy two requirements—the defendant must

have transacted business in Massachusetts, and the plaintiff’s claim must have arisen from the transaction of business by the defendant.” Tatro, supra at 767. We construe

these dual requirements “broadly,” id. at 771, and conclude that they are satisfied here.

The parties’ arguments on the jurisdictional issues focus exclusively on the due process question, forgoing any analysis under Massachusetts’s long-arm statute, G. L. c. 223A, § 3. We recently clarified,

however, that Massachusetts courts cannot “streamline” the personal

jurisdiction inquiry by focusing solely on due process considerations,

under the theory that the limits imposed by the long-arm statute and

due process are coextensive. See SCVNGR, Inc. v. Punchh, Inc., 478

Mass. 324, 329-330 (2017). They are not. Id. “The long-arm statute

‘asserts jurisdiction over [a nonresident] to the constitutional limit

only when some basis for jurisdiction enumerated in the statute has

been established.” Id. at 329, 85 N.E.3d 50, quoting Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 6 (1979). We analyze the

long-arm statute’s requirement first “in order to avoid unnecessary

consideration of constitutional questions.” SCVNGR, Inc., supra at

325.

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In Massachusetts, Exxon operates a franchise network of more than 300 retail service stations under the

Exxon and Mobil brands that sell gasoline and other fossil

fuel products to Massachusetts consumers. The Attorney

General contends that this network establishes an independent basis for personal jurisdiction over Exxon in this

matter.4 The franchise system is governed by a Brand Fee

Agreement (BFA). Under section 7 of the BFA, the “BFA

Holder” pays Exxon a monthly fee for the use of Exxon’s

trademarks and to participate in Exxon’s business services and programs at the BFA Holder’s gasoline stations.

Under section 5 of the BFA, Exxon prescribes a method

for converting unbranded fuel to Exxon- and Mobilbranded gasoline by injecting certain fuel additives; these

additives are to be obtained exclusively from suppliers

identified by Exxon, and are inserted according to

Exxon’s specifications. Under section 7(a)(ii) of the BFA,

the dollar amount of a BFA Holder’s monthly fee is determined in part by the total amount of Exxon- and Mobilbranded fuel sold at the BFA Holder’s stations. Specifically, the monthly fee for the final five years of BFA shall

equal the amount agreed to between the parties or an

amount determined by “Recalculated Total Volume,”

which is the function of “the total volume of [Exxon- and

Mobil-branded fuel] sold in the aggregate by all Direct

Served Outlets” during a given period.

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The Attorney General also cites additional Massachusetts contacts besides Exxon’s franchise network as grounds for our exercise

of personal jurisdiction over Exxon. We address those contacts in our

discussion of due process, given our conclusion that the “literal requirements of the [long-arm] statute are satisfied” through Exxon’s

franchise system. Tatro v. Manor Care, Inc., 416 Mass. 763, 767

(1994).

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The sample BFA submitted to the Superior Court was

struck between Exxon and a Massachusetts-based limited

liability company; it states that it shall be in effect for a

period of fifteen years, with possible extensions, and governs the operation of over 300 Exxon- and Mobil-branded

“retail motor fuel outlets” located throughout the State.

This network represents Exxon’s “purposeful and successful solicitation of business from residents of the Commonwealth,” Tatro, 416 Mass. at 767, such that it satisfies

the “transacting any business” prong of § 3(a).

The more difficult question is whether the C.I.D.

“aris[es] from” this network of Exxon- or Mobil-branded

fuel stations. G. L. c. 223A, § 3(a). Exxon argues that it

does not, because while the Attorney General’s investigation is concerned primarily with Exxon’s marketing and

advertising of its fossil fuel products to Massachusetts

consumers, Exxon does not control its franchisees’ advertising, and hence those communications cannot be attributed to Exxon for purposes of personal jurisdiction.

The judge determined that Exxon’s assertion of a lack of

control over franchisees’ advertising conflicts with the

terms of the BFA. We agree. Section 15(a) requires the

BFA Holder and “its Franchise Dealers to diligently promote the sale of [Exxon- or Mobil-branded fuel], including

through advertisements,” and states that “Exxon[ ] shall

have the authority to review and approve, in its sole discretion, all forms of advertising and sales promotions . . .

for the promotion and sale of any product, merchandise or

services” that “(i) uses or incorporates any [Exxon trademark] or (ii) relates to any Business operated at a BFA

Holder Branded Outlet.” This section also obligates the

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BFA Holder to “expressly require all Franchise Dealers

to . . . agree to such review and control by Exxon[ ].”5

In Depianti v. Jan-Pro Franchising Int’l, Inc., 465

Mass. 607, 617 (2013), we applied the “right to control”

test to the franchisor-franchisee relationship, holding that

“a franchisor is vicariously liable for the conduct of its

franchisee only where the franchisor controls or has a

right to control the specific policy or practice resulting in

harm to the plaintiff.” This test is a useful measure for determining when the conduct of a franchisee may be

properly attributed to a franchisor, and we believe that it

is equally well suited to our analysis of personal jurisdiction in this case. By virtue of section 15(a) of the BFA,

Exxon has the right to control the advertising of its fossil

fuel products to Massachusetts consumers.6

Exxon says that it proffered evidence below that “BFA holders

control their own marketing,” citing to certain provisions of the BFA

and to an affidavit from Exxon’s United States Branded Wholesale

Manager, Geoffrey Doescher. The cited-to provisions of the BFA

(sections 2[e][6] and 3[a], [h] ) address the establishment of the franchise relationship and the use of Exxon’s trademarks, and do not clarify control over advertising. Similarly, while the Doescher affidavit

states in conclusory fashion that Exxon does not control the “marketing of” or “advertisements by BFA-holders,” this is belied by section

15(a) of the BFA.

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We are not persuaded by Exxon’s argument that its control over

franchisee advertising is solely to protect its trademarks under Federal law. See Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass.

607, 615 (2013) (“Under Federal law, a franchisor is required to maintain control and supervision over a franchisee’s use of its mark, or else

the franchisor will be deemed to have abandoned its mark under the

abandonment provisions of the Lanham Act”). Section 15(a) expressly

states that Exxon’s exclusive authority to review and approve such

advertising extends not only to advertisements that incorporate

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This leads to our conclusion that the C.I.D. “aris[es]

from” the BFA and Exxon’s network of branded fuel stations in Massachusetts. G. L. c. 223A, § 3(a). Through its

control over franchisee advertising, Exxon communicates

directly with Massachusetts consumers about its fossil

fuel products (and hence we reject Exxon’s assertion that

it “has no direct contact with any consumers in Massachusetts”). This control comports with one of Exxon’s “primary business purpose[s]” as expressed in section 13(a) of

the BFA: “to optimize effective and efficient . . . representation of [Exxon- and Mobil-branded fuel] through

planned market and image development.” The C.I.D.

seeks information about the nature and extent of Exxon’s

Massachusetts advertisements, including those disseminated through Exxon’s franchisees.

More broadly, the C.I.D. seeks information concerning Exxon’s internal knowledge about climate change.

Many of the requests in the C.I.D. seek documents to substantiate public statements made by Exxon in recent

years on the topic of climate change. Exxon protests that

its franchisees have nothing to do with climate change and

have played no part in disseminating those statements, so

the Attorney General’s requests cannot “arise from”

Exxon’s franchise system. Bearing in mind the basis for

the C.I.D. and the Attorney General’s investigation, G. L.

c. 93A, we disagree.

The statute authorizes the Attorney General to initiate

an investigation “whenever [s]he believes a person has engaged in or is engaging in” a violation of G. L. c. 93A, in

order “to ascertain whether in fact [that] person” is doing

Exxon’s trademarks, but also, more broadly, to advertising that “relates to any Business operated at a BFA Holder Branded Outlet”

(emphasis added).

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so. G. L. c. 93A, § 6(1). A person may violate G. L. c. 93A

through false or misleading advertising. “Our cases . . . establish that advertising need not be totally false in order

to be deemed deceptive in the context of G. L. c. 93A. . . .

The criticized advertising may consist of a half-truth, or

even may be true as a literal matter, but still create an

over-all misleading impression through failure to disclose

material information.” Aspinall v. Philip Morris Cos., 442

Mass. 381, 394-395 (2004).7 In order to determine whether

Exxon engaged in deceptive advertising at its franchisee

stations, by either giving a misleading impression or failing to disclose material information about climate change,

the Attorney General must first ascertain what Exxon

knew about that topic.

b. Due process. We must also determine whether the

exercise of personal jurisdiction over Exxon comports

with the requirements of due process. The “touchstone”

of this inquiry remains “whether the defendant purposefully established ‘minimum contacts’ in the forum state.”

Tatro, 416 Mass. at 772, quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174 (1985). “The

due process analysis entails three requirements. First,

minimum contacts must arise from some act by which the

See 940 Code Mass. Regs. § 3.02(2) (2014) (“No statement or illustration shall be used in any advertisement . . . which may . . . misrepresent the product in such a manner that later, on disclosure of

the true facts, there is a likelihood that the buyer may be switched

from the advertised product to another”); 940 Code Mass. Regs.

§ 3.05(1)-(2) (1993) (“No claim or representation shall be made by any

means concerning a product which directly, or by implication, or by

failure to adequately disclose additional relevant information, has the

capacity or tendency or effect of deceiving buyers or prospective buyers in any material respect”).

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defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking

the benefits and protections of its laws . . . . Second, the

claim must arise out of or relate to the defendant’s contacts with the forum . . . . Third, the assertion of jurisdiction over the defendant must not offend traditional notions of fair play and substantial justice” (citations and

quotations omitted). Bulldog Investors Gen. Partnership

v. Secretary of the Commonwealth, 457 Mass. 210, 217

(2010).8

First, Exxon has purposefully availed itself of the privilege of conducting business activities in Massachusetts,

Following the Superior Court judge’s decision and the parties’

submission of their appellate briefs, the United States Supreme

Court decided Bristol-Myers Squibb Co. v. Superior Court of Cal.,

San Francisco County, ___ U.S. ___, 137 S. Ct. 1773 (2017) (BristolMyers), which addresses the exercise of specific personal jurisdiction.

Exxon argues that Bristol-Myers controls our decision, but we are

not persuaded. Bristol-Myers concerned whether the California Supreme Court properly exercised personal jurisdiction over the claims

of nonresident plaintiffs, despite the lack of any identifiable connection between those plaintiffs’ claims and the nonresident defendant’s

activities in California. Id. at 1778. In concluding that there was personal jurisdiction over the nonresident plaintiffs’ claims, the California Supreme Court applied a “sliding scale approach,” under which

“the strength of the requisite connection between the forum and the

specific claims at issue is relaxed if the defendant has extensive forum

contacts that are unrelated to those claims.” Id. at 1781. The Supreme

Court reversed, criticizing the “sliding scale approach” and reiterating the need for “a connection between the forum and the specific

claims at issue.” Id. Unlike in Bristol-Myers, the Attorney General’s

investigation is brought on behalf of Massachusetts residents, for potential violations occurring within Massachusetts. Moreover, our conclusion that there is personal jurisdiction over Exxon here rests not

on Exxon’s general Massachusetts-based activities, but on the nexus

between certain of Exxon’s Massachusetts-based activities and the

Attorney General’s investigation.

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with both consumers and other businesses. As mentioned,

Exxon is the franchisor of over 300 Exxon- and Mobilbranded service stations located throughout Massachusetts, and through that arrangement Exxon controls the

marketing of its products to Massachusetts consumers. In

addition, Exxon admits that it created Massachusettsspecific advertisements for its products in print and radio.

Such “advertising in the forum State,” especially when

coupled with its extensive franchise network, is indicative

of Exxon’s “intent or purpose to serve the market in the

forum State.” Asahi Metal Indus. Co., Ltd. v. Superior

Court of Cal., Solano County, 480 U.S. 102, 112 (1987). See

Workgroup Tech. Corp. v. MGM Grand Hotel, LLC, 246

F. Supp. 2d 102, 114 (D. Mass. 2003) (purposeful availment where defendant “had advertisements in publications that circulated in Massachusetts” and “purposefully

derived economic benefits from its forum-[S]tate activities”); Gunner v. Elmwood Dodge, Inc., 24 Mass. App. Ct.

96, 99-101 (1987) (out-of-State company’s advertisements

“aimed squarely at Massachusetts targets,” which were

directed “at establishing ongoing relationships with Massachusetts consumers,” supported jurisdiction). Exxon

also operates a Web site that is accessible in Massachusetts and enables visitors to locate the nearest Exxon- and

Mobil-branded service station or retailer. See Hilsinger

Co. v. FBW Invs., 109 F. Supp. 3d 409, 428-429 (D. Mass.

2015) (purposeful availment where nonresident defendant’s Web site enabled visitors to contact company to

learn where they can buy its products); Bulldog Investors

Gen. Partnership, 457 Mass. at 217, 929 N.E.2d 293 (solicitation sent to Massachusetts resident, coupled with

Web site accessible in Massachusetts, made it “reasonable

for the [nonresident] to anticipate being held responsible

in Massachusetts”).

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Further, Exxon’s franchise system in Massachusetts

is governed by a contract, the BFA. While such a contractual relationship is not necessarily a “contact,” Burger

King Corp., 471 U.S. at 478, when that relationship

“reach[es] out beyond one [S]tate and create[s] continuing

relationships and obligations with citizens of another

[S]tate,” the nonresident subjects itself to that other

State’s jurisdiction for claims related to the contract.

Travelers Health Ass’n v. Virginia ex rel. State Corp.

Comm’n, 339 U.S. 643, 647 (1950). See Baskin-Robbins

Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28,

38 (1st Cir. 2016) (purposeful availment where, among

other things, defendant received monthly payments from

plaintiff’s Massachusetts headquarters). Under the BFA,

the BFA Holder pays Exxon a monthly fee in exchange

for the use of Exxon’s trademarks, as well as various

Exxon business services and programs, including training

and uniforms; Exxon also assists the BFA Holder in procuring the additives necessary to create and sell Exxonand Mobil-branded fuel. Through this agreement Exxon

has “deliberately targeted the Massachusetts economy

and reasonably should have foreseen that, if a controversy

developed, it might be haled into a Massachusetts court.”

Baskin-Robbins Franchising LLC, supra at 39.

The Attorney General’s investigation “arise[s] out of,

or relate[s] to” these contacts. Tatro, 416 Mass. at 772. As

mentioned, the Attorney General is authorized to investigate potential violations of G. L. c. 93A. G. L. c. 93A, § 6.

In addition to prohibiting deceptive advertising to consumers, Aspinall, 442 Mass. at 395, c. 93A also requires

honest disclosures in transactions between businesses.

See Kraft Power Corp., 464 Mass. at 155; G. L. c. 93A, § 11.

“A duty exists under c. 93A to disclose material facts

known to a party at the time of a transaction.” Underwood

v. Risman, 414 Mass. 96, 99-100 (1993). The C.I.D. seeks

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information relating to Exxon’s knowledge of “the risk

that climate change creates for the value of [its] businesses and assets,” and “what Exxon told Massachusetts

consumers and investors, among others, about those

facts.” Possible misrepresentations or omissions about

the threat that climate change poses to Exxon’s business

model are highly relevant to its contracts with BFA Holders, who agree, under section 1 of the BFA, to fifteen-year

terms with Exxon and who are required, under section

21(b), to indemnify Exxon against all claims and liabilities

based on State consumer protection and environmental

laws, among others.

The exercise of personal jurisdiction over Exxon also

does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington,

326 U.S. 310, 316 (1945), quoting Milliken v. Meyer, 311

U.S. 457, 463 (1940). See Burger King Corp., 471 U.S. at

477, 105 S. Ct. 2174 (where court has determined nonresident has requisite minimum contacts, party must “present a compelling case that the presence of some other

considerations would render jurisdiction unreasonable”).

Exxon has produced no evidence that responding to the

Attorney General’s investigation would be unreasonable.

Even assuming that it had, we would balance that showing

with “the Commonwealth’s interest in enforcing its laws

in a Massachusetts forum.” Bulldog Investors Gen. Partnership, 457 Mass. at 218. As Massachusetts’s chief law

enforcement officer, the Attorney General has a manifest

interest in enforcing G. L. c. 93A. See, e.g., G. L. c. 93A,

§ 6 (Attorney General may investigate “whenever [s]he

believes” c. 93A violation has occurred); id. at § 4 (Attorney General may file civil actions “in the name of the commonwealth”); id. at § 5 (Attorney General may seek assurances of discontinuance of unlawful acts or practices); id.

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at § 2(c) (Attorney General “may make rules and regulations interpreting” what constitutes unlawful act or practice).9

2. Exxon’s challenge to the substance of the C.I.D.

Exxon also challenges the C.I.D. based on its content, arguing that it is “overbroad and unduly burdensome,” as

well as “arbitrary and capricious.” Exxon argues that

these points constitute “good cause” warranting our modifying or setting aside the C.I.D. under G. L. c. 93A, § 6(7)

(“the court may, upon motion for good cause shown . . .

modify or set aside such demand or grant a protective order”). As “[t]he party moving to set aside [the] C.I.D.[,

Exxon] bears a heavy burden to show good cause why it

should not be compelled to respond.” CUNA Mut. Ins.

Soc’y v. Attorney Gen., 380 Mass. 539, 544 (1980). See Attorney Gen. v. Bodimetric Profiles, 404 Mass. 152, 155

(1989). The judge concluded that Exxon had failed to sustain that burden, and we review her conclusion for an

abuse of discretion. Matter of a Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353, 356

(1977) (Yankee Milk) (“in C.I.D. matters there must be,

9

Because we conclude that due process is satisfied by virtue of the

nexus between the Attorney General’s investigation and Exxon’s

franchise system, we need not reach the parties’ arguments with respect to the Attorney General’s alternative theory that Exxon may

have deceived investors with respect to climate change. Although the

cover letter of the C.I.D. states that the investigation concerns potential violations of G. L. c. 93A with respect to both consumers and investors, very few of the C.I.D.’s requests even mention investors or

securities, and even then, those requests likewise concern Exxon’s internal knowledge and discussions concerning climate change (in these

requests, for the purpose of preparing securities filings or investor

communications). Given the focus on Exxon’s knowledge, these requests also relate sufficiently to the Attorney General’s consumer deception theory.

18a

as in all discovery proceedings, a broad area of discretion

residing in the judge”).

By its terms, G. L. c. 93A, § 6, authorizes the Attorney

General to initiate an investigation “whenever [s]he believes a person has engaged in or is engaging in any

method, act or practice declared to be unlawful by this

chapter.” This grants the Attorney General “broad investigatory powers.” Bodimetric Profiles, 404 Mass. at 157.

See Yankee Milk, 372 Mass. at 364, (“the Legislature

[particularly in providing that the interrogated party

must show ‘good cause’ why demands should not be honored] has indicated that the statute should be construed

liberally in favor of the government”). Still, the statute imposes certain limitations on the scope of the Attorney

General’s investigative authority that we must consider.

In pertinent part, § 6(1)(b) authorizes the Attorney

General to “examine . . . any documentary material . . .

relevant to such alleged unlawful method, act or practice”

that is the subject of the Attorney General’s investigation.

This “sets forth a relevance test to define the documents

the Attorney General may examine.” Yankee Milk, 372

Mass. at 357. See Bodimetric Profiles, 404 Mass. at 156.

Her power to examine such documents is further constrained by § 6(5), in particular its provision prohibiting a

C.I.D. from “contain[ing] any requirement [that] would be

unreasonable or improper if contained in a subpoena duces tecum issued by a court of the [C]ommonwealth.” We

have interpreted this particular provision to impose a

“three-pronged test” intended to “balance the opposing

interests of the investigator and the investigated.” Yankee

Milk, supra at 361. Here, a court must consider (1)

19a

whether the C.I.D. “describe[s] with reasonable particularity the material required,”10 (2) whether “the material

required is not plainly irrelevant to the authorized investigation,”11 and (3) whether “the quantum of material required does not exceed reasonable limits.” Id. at 360-361.

See Matter of a Civil Investigative Demand Addressed to

Bob Brest Buick, Inc., 5 Mass. App. Ct. 717, 719-720

(1977) (“It cannot now be said that the C.I.D., as modified,

was too indefinite, exceeded reasonable limits, or was

plainly irrelevant . . . to the public interest sought to be

protected” [citations and quotations omitted] ). “Violation

of one of these standards [under § 6(5)] constitutes ‘good

cause’ allowing the court to modify or set aside a demand”

pursuant to § 6(7). Yankee Milk, supra at 359 n.7. See

Harmon Law Offices, P.C. v. Attorney Gen., 83 Mass.

App. Ct. 830, 834-835 (2013) (“Good cause is shown only if

the moving party demonstrates that the Attorney General

acted arbitrarily or capriciously or that the information

sought is plainly irrelevant”). With these limitations in

mind, we turn to the judge’s conclusion that Exxon had

not met its burden of showing “why it should not be compelled to respond” to the C.I.D. CUNA Mut. Ins. Soc’y,

380 Mass. at 544.

This factor mirrors the particularity requirement of the previous

section, G. L. c. 93A, § 6(4)(c), which mandates that the notice of a

C.I.D. “describe the class or classes of documentary material to be

produced thereunder with reasonable specificity, so as fairly to indicate the material demanded.” See Yankee Milk, 372 Mass. at 361 (observing that these two provisions “impose[ ] . . . an equivalent [specificity] standard”).

10

11

Similarly, the relevance requirement of this second factor mirrors the relevance requirement of § 6(1)(b), and we interpret the two

to impose an identical standard.

20a

First, we agree with the judge that the C.I.D. describes with reasonable particularity the material requested, G. L. c. 93A, § 6(4)(c), (5), given its focus on

Exxon’s knowledge of the impacts of carbon dioxide and

other fossil fuel emissions on the Earth’s climate. With respect to the relevance of the materials sought, Exxon argues that the Attorney General’s request for historic documents dating as far back as 1976 are not relevant to an

investigation under c. 93A, which carries a four-year statute of limitations. G. L. c. 260, § 5A. We find no support

for Exxon’s position, either in law (Exxon fails to cite any

case) or logic. A document created more than four years

ago is, of course, still probative of Exxon’s present

knowledge on the issue of climate change, and whether

Exxon disclosed that knowledge to the public. Because

these materials are not “plainly irrelevant,” Yankee Milk,

372 Mass. at 360, the requests are permissible under this

factor.

We are also not persuaded that the C.I.D.’s requests

“exceed reasonable limits.” Id. at 361. Documentary demands do so “only when they ‘seriously interfere with the

functioning of the investigated party by placing excessive

burdens on manpower or requiring removal of critical records.’ ” Bodimetric Profiles, 404 Mass. at 159, quoting

Yankee Milk, supra at 361 n.8. In analyzing this point, the

judge properly considered the fact that Exxon has already

complied with a request for similar documents from New

York’s Attorney General. The judge reasonably inferred

that it would not be too burdensome for Exxon, having already complied with that request, to comply with the Massachusetts C.I.D., which is similar in nature.12 Exxon does

The judge wrote: “At the hearing, both parties indicated that

Exxon has already complied with its obligations regarding a similar

12

21a

not cite to the record before us to support a contrary conclusion. Further, we have recognized that in cases such as

this, where “the requested information is . . . peculiarly

within the province of the person to whom the C.I.D. is

addressed, broad discovery demands may be permitted

even when such a demand ‘imposes considerable expense

and burden on the investigated party.’ ” Bodimetric Profiles, supra.

The remainder of Exxon’s challenge to the substance

of the C.I.D. concerns its assertion that the Attorney General issued the C.I.D. solely as a pretext, “rendering the

[C.I.D.] an arbitrary and capricious exercise of executive

power.” Exxon cites to cases from other contexts to suggest that our analysis of the propriety of the C.I.D. must

include an evaluation of the reasonableness of the Attorney General’s reasons for issuing it. “There is no requirement that the Attorney General have probable cause to

believe that a violation of . . . c. 93A has occurred. [She]

need only have a belief that a person has engaged in or is

engaging in conduct declared by be unlawful by . . . c. 93A.

In these circumstances, the Attorney General must not

act arbitrarily or in excess of [her] statutory authority,

but [s]he need not be confident in the probable result of

[her] investigation.” CUNA Mut. Ins. Soc’y, 380 Mass. at

542 n.5. The judge determined that the Attorney General

has “assayed sufficient grounds—her concerns about

Exxon’s possible misrepresentations to Massachusetts

consumers—upon which to issue the [C.I.D].” The Attorney General’s belief that Exxon’s conduct may violate c.

93A is all that is required under G. L. c. 93A, § 6(1).

demand for documents from the New York Attorney General. In fact,

as of December 5, 2016, Exxon had produced 1.4 million pages of documents responsive to the New York Attorney General’s request.”

22a

3. Disqualification of the Attorney General. Exxon

also seeks the disqualification of the entire office of the

Attorney General from this investigation. Exxon bases its

request on comments made by the Attorney General in

March, 2016, at the press conference where she announced the commencement of her investigation into

Exxon. The judge denied Exxon’s request, and we review

the denial for an abuse of discretion. Commonwealth v.

Reynolds, 16 Mass. App. Ct. 662, 664 (1983).

At the press conference, titled “AGs United for Clean

Power,” the Attorney General spoke about the basis for

her investigation. The relevant portion of her comments

were as follows:

“Part of the problem has been one of public

perception, and it appears, certainly, that

certain companies, certain industries, may

not have told the whole story, leading many

to doubt whether climate change is real and

to misunderstand and misapprehend the

catastrophic nature of its impacts. Fossil

fuel companies that deceived investors and

consumers about the dangers of climate

change should be, must be, held accountable. That’s why I, too, have joined in investigating the practices of Exxon . . . . We can

all see today the troubling disconnect between what Exxon knew, what industry

folks knew, and what the company and industry chose to share with investors and

with the American public.”

Exxon argues that these comments violated Mass. R.

Prof. C. 3.6, as appearing in 471 Mass. 1430 (2015), which

prohibits any lawyer from making prejudicial statements

to the public concerning an ongoing investigation. Where

23a

a violation has occurred, a judge may disqualify the violator. See Pisa v. Commonwealth, 378 Mass. 724, 728-730

(1979). The judge concluded that the Attorney General’s

comments contained no “actionable bias,” and instead

were intended only to inform the public of the basis for the

investigation into Exxon. We discern no abuse of discretion in the judge’s conclusion. The Attorney General is authorized to investigate what she believes to be violations

of c. 93A. G. L. c. 93A, § 6(1). As an elected official, it is

reasonable that she routinely informs her constituents of

the nature of her investigations. See Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993) (statements to press by

prosecutor serve vital public function); Commonwealth v.

Ellis, 429 Mass. 362, 372-373 (1999) (discussing prosecutor’s duty to zealously advocate within ethical limits).

4. Exxon’s request for a stay. The day before filing its

request to modify or set aside the C.I.D., Exxon filed a

complaint for declaratory and injunctive relief in the

United States District Court for the Northern District of

Texas challenging the C.I.D. on constitutional grounds

not raised in this action.13 Exxon requested that the Superior Court judge stay this matter pending the resolution

of the Federal suit. The judge denied Exxon’s request,

and we review that denial for an abuse of discretion. Soe

v. Sex Offender Registry Bd., 466 Mass. 381, 392 (2013).

The Federal action was transferred to the United States District

Court for the Southern District of New York, and on March 29, 2018,

the District Court dismissed Exxon’s complaint with prejudice due to

Exxon’s failure to state a claim and the preclusive effect of the Superior Court decision in this matter. See Exxon Mobil Corp. v. Healey

& another, U.S. Dist. Ct., No. 1:17-cv-02301 (S.D.N.Y. Mar. 29, 2018).

Because Exxon may appeal from the Federal decision, we do not treat

as moot Exxon’s request to stay the Massachusetts proceedings.

13

24a

In denying Exxon’s request, the judge reasoned that

the Superior Court is better equipped than a Federal

court in Texas to decide a matter pertaining to Massachusetts’s primary consumer protection law, G. L. c. 93A.14

Exxon argues that this constitutes an abuse of discretion,

and contends, somewhat remarkably, that there “is good

reason to question the premise” that Massachusetts

courts are more capable than out-of-State courts to oversee cases arising under c. 93A. The Legislature designated the Superior Court as the forum for bringing a challenge to a C.I.D. issued under G. L. c. 93A, § 6. See G. L.

c. 93A, § 6(7) (“[t]he motion may be filed in the superior

court of the county in which the person served resides or

has his usual place of business, or in Suffolk county”).

Likewise, the Legislature provided that civil actions under G. L. c. 93A, § 9 or 11, may be brought in the Superior

Court, the Housing Court, or the District Court, see G. L.

c. 93A, §§ 9(1), (3A), 11, with the Superior Court retaining

the broadest grant of jurisdiction over c. 93A claims.15 It

should go without saying that Massachusetts courts,

which routinely hear c. 93A claims, are better equipped

than other courts in other jurisdictions to oversee such

cases.

The judge also determined that “the interests of substantial justice dictate that the matter be heard in Massachusetts,” citing G. L.

c. 223A, § 5. Exxon has not argued that it would be unfairly prejudiced

by having to litigate in Massachusetts, and thus has not moved to dismiss under the doctrine of forum non conveniens.

14

15

Whereas the Housing Court’s jurisdiction over c. 93A claims is

restricted to those involving housing matters, see G. L. c. 93A, § 9(1);

G. L. c. 185C, § 3, and the District Court has jurisdiction over actions

“for money damages only,” G. L. c. 93A, §§ 9(3A), 11, the Superior

Court is not so limited, and may hear any case under c. 93A “for damages and such equitable relief, including an injunction, as the court

deems to be necessary and proper.” G. L. c. 93A, § 9(1).

25a

Exxon’s contention that the lower court erred in failing to apply the “first-filed” rule is equally unavailing. The

filing of a complaint in Federal court one day before a

State court filing hardly triggers a mechanical application

of the first-filed rule. See, e.g., EMC Corp. v. Parallel

Iron, LLC, 914 F. Supp. 2d 125, 127 (D. Mass. 2012) (“Exceptions to the [first-filed] rule are not rare . . . . [A court]

has discretion to give preference to a later-filed action

when that action will better serve the interests involved”);

Bacardi Int’l Ltd. v. V. Suarez & Co., 719 F.3d 1, 15 (1st

Cir.), cert. denied, 571 U.S. 1024 (2013) (discouragement

of forum-shopping is consideration when ruling on motion

to stay).

Finally, where there is only a partial overlap in the

subject matter of two actions, a judge has considerable

discretion when deciding whether to grant a stay. See In

re Telebrands Corp., 824 F.3d 982, 984 (Fed. Cir. 2016);

TPM Holdings, Inc. v. Intra-Gold Indus., Inc., 91 F.3d 1,

4 (1st Cir. 1996) (“where the overlap between two suits is

less than complete, the judgment is made case by case”).

Exxon acknowledges that the Federal action “challenges

the investigation on constitutional grounds not raised in

this action” (emphasis added).16 The judge did not abuse

her discretion in denying the stay. Compare Provanzano

v. Parker, 796 F. Supp. 2d 247, 257 (D. Mass. 2011) (declining to stay because first-filed action was in anticipation

of lawsuit in question, claims in cases were not identical,

current action had proceeded further in court, and case

involved application of Massachusetts statute).

16

Exxon’s Federal complaint for declaratory and injunctive relief

is based on violations of Exxon’s rights under the First, Fourth, and

Fourteenth Amendments to the United States Constitution, as well

as an alleged violation of the dormant commerce clause and an abuse

of process claim.

26a

5. Conclusion. We affirm the order denying Exxon’s

motion to modify or set aside the C.I.D., Exxon’s request

to disqualify the Attorney General, and Exxon’s motion to

stay these proceedings. We further affirm the order

granting the Attorney General’s cross motion to compel

Exxon’s compliance with the C.I.D.

Judgment affirmed.

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APPENDIX B

SUPERIOR COURT OF MASSACHUSETTS,

SUFFOLK COUNTY

SUPERIOR COURT CIVIL ACTION NO. 2016-1888-F

IN RE CIVIL INVESTIGATIVE DEMAND

NO. 2016-EPD-36,

ISSUED BY THE OFFICE OF THE ATTORNEY

GENERAL

January 11, 2017

ORDER ON EMERGENCY MOTION OF

EXXON MOBIL CORPORATION TO SET ASIDE

OR MODIFY THE CIVIL INVESTIGATIVE

DEMAND OR ISSUE A PROTECTIVE ORDER AND

THE COMMONWEALTH’S CROSS-MOTION TO

COMPEL EXXON MOBIL CORPORATION TO

COMPLY WITH CIVIL INVESTIGATIVE

DEMAND NO. 2016-EPD-36

BRIEGER, Associate Justice of the Superior Court.

On April 19, 2016, the Massachusetts Attorney General issued a Civil Investigative Demand (“CID”) to

Exxon Mobil Corporation (“Exxon”) pursuant to G.L.c.

93A, § 6. The CID stated that it was issued as:

[P]art of a pending investigation concerning

potential violations of M.G.L.c. 93A, § 2, and

the regulations promulgated thereunder

28a

arising both from (1) the marketing and/or

sale of energy and other fossil fuel derived

products to consumers in the Commonwealth . . . ; and (2) the marketing and/or

sale of securities, as defined in M.G.L.c.

110A, § 401(k), to investors in the Commonwealth, including, without limitation, fixedand floating-rate notes, bonds, and common

stock, sold or offered to be sold in the Commonwealth.

Appendix in Support of Petition and Emergency Motion

of Exxon Mobil Corporation to Set Aside or Modify the

Civil Investigative Demand or Issue a Protective Order,

Exhibit B. The CID requests documents generally related

to Exxon’s study of CO2 emissions and the effects of these

emissions on the climate from January 1, 1976 through the

date of production.

On June 16, 2016, Exxon commenced the instant action to set aside the CID. The Attorney General has crossmoved pursuant to G.L.c. 93A, § 7 to compel Exxon to

comply with the CID. After a hearing and careful review

of the parties’ submissions, and for the reasons that follow, Exxon’s motion to set aside the CID is DENIED and

the Commonwealth’s motion to compel is ALLOWED,

subject to this Order.

DISCUSSION

General Laws c. 93A, § 6 authorizes the Attorney General to obtain and examine documents “whenever he believes a person has engaged in or is engaging in any

method, act or practice declared to be unlawful by this

chapter.” Among the things declared to be unlawful by

chapter 93A are unfair and deceptive acts or practices in

the conduct of any trade or commerce. G.L.c. 93A, § 2(a).

29a

General Laws c. 93A, § 6 “should be construed liberally in

favor of the government,” see Matter of Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass.

353, 364 (1977), and the party moving to set aside a CID

“bears a heavy burden to show good cause why it should

not be compelled to respond,” see CUNA Mutual Ins.

Soc. v. Attorney Gen., 380 Mass. 539, 544 (1980). There is

no requirement that the Attorney General have probable

cause to believe that a violation of G.L.c. 93A has occurred; she need only have a belief that a person has engaged in or is engaging in conduct declared to be unlawful

by G.L.c. 93A. Id. at 542 n.5. While the Attorney General

must not act arbitrarily or in excess of her statutory authority, she need not be confident of the probable result

of her investigation. Id. (Citations omitted.)

I.

Exxon’s Motion to Set Aside the CID

A.

Personal Jurisdiction

Exxon contends that this court does not have personal

jurisdiction over it in connection with any violation of law

contemplated by the Attorney General’s investigation.

Memorandum of Exxon Mobil Corporation in Support of

its Emergency Motion to Set Aside or Modify the Civil Investigative Demand or Issue a Protective Order, page 2.

Exxon is incorporated in New Jersey and headquartered

in Texas. All of its central operations are in Texas.

Determining whether the court has personal jurisdiction over a nonresident defendant involves a familiar twopronged inquiry: (2) is the assertion of jurisdiction authorized by the longarm statute, G.L.c. 223A, § 3, and (2) if

authorized, is the exercise of jurisdiction under State law

consistent with basic due process requirements mandated

by the United States Constitution? Good Hope Indus.,

30a

Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). Jurisdiction is permissible only when both questions draw affirmative responses. Id. As the party claiming that the court

has the power to grant relief, the Commonwealth has the

burden of persuasion on the issue of personal jurisdiction.

Chapman v. Houston Welfare Rights Org., 441 U.S. 600,

612 n.28 (1979).

The Commonwealth invokes jurisdiction under G.L.c.

223A, § 3(a), which permits the court to assert jurisdiction

over a defendant if the defendant “either directly or

through an agent transacted any business in the Commonwealth, and if the alleged cause of action arose from

such transaction of business.” Good Hope Indus., Inc., 378

Mass. at 6. The “transacting any business” language is to

be construed broadly. See Tatro v. Manor Care, Inc., 416

Mass. 763, 767 (1994). “Although an isolated (and minor)

transaction with a Massachusetts resident may be insufficient, generally the purposeful and successful solicitation

of business from residents of the Commonwealth, by a defendant or its agent, will suffice to satisfy this requirement.” Id. Whether the alleged injury “arose from” a defendant’s transaction of business in Massachusetts is determined by a “but for” test. Id. at 771-72 (jurisdiction

only proper if, but for defendant’s solicitation of business

in Massachusetts, plaintiff would not have been injured).

The CID says that the Attorney General is investigating potential violations arising from Exxon’s marketing

and/or sale of energy and other fossil fuel derived products to Commonwealth consumers. The Commonwealth

argues that Exxon’s distribution of fossil fuel to Massachusetts consumers “through more than 300 Exxonbranded retail service stations that sell Exxon gasoline

and other fuel products” satisfies the transaction of business requirement. Exxon objects because it contends that

31a

for the past five years, it has neither (1) sold fossil fuel

derived products to consumers in Massachusetts, nor (2)

owned or operated a retail store or gas station in Massachusetts. According to the affidavit of Geoffrey Grant

Doescher (“Doescher”), the U.S. Branded Wholesale

Manager, ExxonMobil Fuels, Lubricants and Specialties

Marketing Company at Exxon, any service station or

wholesaler in Massachusetts selling fossil fuel derived

products under an “Exxon” or “Mobil” banner is independently owned and operated pursuant to a Brand Fee

Agreement (“BFA”). Doescher says that branded service

stations purchase gasoline from wholesalers who create

ExxonMobil-branded gasoline by combining unbranded

gasoline with ExxonMobil-approved additives obtained

from a third-party supplier. The BFA also provides that

Exxon agrees to allow motor fuel sold from these outlets

to be branded as Exxon- or Mobil-branded motor fuel.

Exxon provided to the court and the Commonwealth a

sample BFA. By letter dated December 19, 2016, the

Commonwealth argued that many provisions of the BFA

properly give rise to this court’s jurisdiction. The Commonwealth contends that the BFA provides many instances in which Exxon retains the right to control both

the BFA Holder and the BFA Holder’s franchisees.1 For

example, Section 15(a) of the BFA states:

The BFA mandates that all BFA Holders require their outlets to

meet minimum facility, product, and service requirements, Section

13, and provide a certain level of customer service, Section 16. Moreover, Exxon requires that the BFA Holder enter into written agreements with each of its Franchise Dealers and in the agreement, the

Franchise Dealer must commit to Exxon’s “Core Values.” Section 19.

“Core Values” is defined on page one of the BFA:

1

32a

BFA Holder agrees to diligently promote

and cause its Franchise Dealers to diligently promote the sales of Products, including through advertisements, all in accordance with the terms of this Agreement.

BFA Holder hereby acknowledges and

agrees that, notwithstanding anything set

forth herein to the contrary, to insure the

integrity of ExxonMobil trademarks, products and reputation, ExxonMobil shall have

the authority to review and approve, in its

sole discretion, all forms of advertising and

sales promotions that will use media vehicles for the promotion and sale of any product, merchandise or services, in each case

that (i) uses or incorporates and Proprietary Mark, or (ii) relates to any Business operated at a BFA Holder Branded outlet . . .

BFA Holder shall expressly require all

Franchise Dealers to (a) agree to such review and control by ExxonMobil . . .

By letter dated December 27, 2016, Exxon disputes

that any of the BFA’s provisions establish the level of control necessary to attribute the conduct of a BFA Holder

BHA Holder acknowledges that ExxonMobil has established the

following core values (“Core Values”) to build and maintain a lasting

relationship with its customers, the motoring public:

(1) To deliver quality products that consumers can trust.

(2) To employ friendly, helpful people.

(3) To provide speedy, reliable service.

(4) To provide clean and attractive retail facilities.

(5) To be a responsible, environmentally-conscious neighbor.

33a

to Exxon. See Depianti v. Jan-Pro Franchising Int’l,

Inc., 465 Mass. 607, 617 (2013) (citation omitted) (“[T]he

marketing, quality, and operational standards commonly

found in franchise agreements are insufficient to establish

the close supervisory control or right of control necessary

to demonstrate the existence of a master/servant relationship for all purposes or as a general matter”); Lind v.

Domino’s Pizza, LLC, 87 Mass. App. Ct. 650, 654-55

(2015) (“The mere fact that franchisors set baseline standards and regulations that franchisees must follow in an effort to protect the franchisor’s trademarks and comply

with Federal law, does not mean that franchisors have undertaken an agency relationship with the franchisee such

that vicarious liability should apply”); Theos & Sons, Inc.

v. Mack Trucks, Inc., 1999 Mass. App. Div. 14, 17 (1999)

(obligations to render prompt and efficient service in accordance with licensor’s policies and standards and to satisfy other warranty related service requirements did not

constitute evidence of agency relationship because they

were unrelated to licensee’s day-to-day operations and

specific manner in which they were conducted).

Here, though, Section 15 of the BFA evidences a retention of more control than necessary simply to protect

the integrity of the Exxon brand. By Section 15, Exxon

directly controls the very conduct at issue in this investigation—the marketing of Exxon products to consumers.

See Depianti, 465 Mass. at 617 (“right to control test”

should be applied to franchisor-franchisee relationship in

such a way as to ensure that liability will be imposed only

where conduct at issue properly may be imputed to franchisor). This is especially true because the Attorney General’s investigation focuses on Exxon’s marketing and/or

sale of energy and other fossil fuel derived products to

Massachusetts consumers. Section 15(a) makes it evident

to the court that Exxon has retained the right to control

34a

the “specific policy or practice” allegedly resulting in

harm to Massachusetts consumers. See id. (franchisor vicariously liable for conduct of franchisee only where franchisor controls or has right to control specific policy or

practice resulting in harm to plaintiff). The quantum of

control Exxon retains over its BFA Holders and the BFA

Holders’ franchisees as to marketing means that Exxon

retains sufficient control over the entities actually marketing and selling fossil fuel derived products to consumers in the Commonwealth such that the court may assert

personal jurisdiction over Exxon under G.L.c. 223A,

§ 3(a).

To determine whether such an exercise of personal jurisdiction satisfies—or does not satisfy—due process,

“the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in

the forum State.” Burger King Corp. v. Rudzewicz, 471

U.S. 462, 474 (1985). The plaintiff must demonstrate (1)

purposeful availment of commercial activity in the forum

State by the defendant; (2) the relation of the claim to the

defendant’s forum contacts; and (3) the compliance of the

exercise of jurisdiction with “traditional notions of fair

play and substantial justice.” Bulldog Investors Gen.

Partnership v. Secretary of the Commonwealth, 457

Mass. 210, 217 (2010) (citations omitted). Due process requires that a nonresident defendant may be subjected to

suit in Massachusetts only where “there was some minimum contact with the Commonwealth which resulted

from an affirmative, intentional act of the defendant, such

that it is fair and reasonable to require the defendant to

come into the State to defend the action.” Good Hope Indus., Inc., 378 Mass. at 7 (citation omitted). “In practical

terms, this means that an assertion of jurisdiction must be

tested for its reasonableness, taking into account such factors as the burden on the defendant of litigating in the

35a

plaintiff’s chosen forum, the forum State’s interest in adjudicating the dispute, and the plaintiff’s interest in obtaining relief.” Tatro, 416 Mass. at 773.

The court concludes that in the context of this CID,

Exxon’s due process rights are not offended by requiring

it to comply in Massachusetts. If the court does not assert

its jurisdiction in this situation, then G.L.c. 93A would be

“de-fanged,” and consequently, a statute enacted to protect Massachusetts consumers would be reduced to

providing hollow protection against non-resident defendants. Compare Bulldog Investors Gen. Partnership, 457

Mass. at 218 (Massachusetts has strong interest in adjudicating violations of Massachusetts securities law; although there may be some inconvenience to non-resident

plaintiffs in litigating in Massachusetts, such inconvenience does not outweigh Commonwealth’s interest in enforcing its laws in Massachusetts forum). Also, insofar as

Exxon delivers its products into the stream of commerce

with the expectation that they will be purchased by consumers in all states, including Massachusetts, it is not

overly burdened by being called into court in Massachusetts. See World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 297-98 (1980) (forum State does not exceed its

powers under Due Process Clause if it asserts personal

jurisdiction over corporation that delivers its products

into stream of commerce with expectation that they will

be purchased by consumers in forum State).

For all of these reasons, the court concludes that it has

personal jurisdiction over Exxon with respect to this CID.

B.

Arbitrary and Capricious

Exxon next contends that the CID is not supported by

the Attorney General’s “reasonable belief” of wrongdoing.

General Laws c. 93A, § 6 gives the Attorney General

36a

broad investigatory powers to conduct investigations

whenever she believes a person has engaged in or is engaging in any conduct in violation of the statute. Attorney

Gen. v. Bodimetric Profiles, 404 Mass. 152, 157 (1989); see

Harmon Law Offices P.C. v. Attorney Gen., 83 Mass. App.

Ct. 830, 834 (2013). General Laws c. 93A does not contain

a “reasonable” standard, but the Attorney General “must

not act arbitrarily or in excess of his statutory authority.”

See CUNA Mut. Ins. Soc., 380 Mass. at 542 n.5 (probable

cause not required; Attorney General “need only have a

belief that a person has engaged in or is engaging in conduct declared to be unlawful by G.L.c. 93A”).

Here, Exxon has not met its burden of persuading the

court that the Attorney General acted arbitrarily or capriciously in issuing the CID. See Bodimetric Profiles, 404

Mass. at 157 (challenger of CID has burden to show that

Attorney General acted arbitrarily or capriciously). If

Exxon presented to consumers “potentially misleading information about the risks of climate change, the viability

of alternative energy sources, and the environmental attributes of its products and services,” see CID Demand

Nos. 9, 10, and 11, the Attorney General may conclude

that there was a 93A violation. See Aspinall v. Philip

Morris Cos., 442 Mass. 381, 395 (2004) (advertising is deceptive in context of G.L.c. 93A if it consists of “a half

truth, or even may be true as a literal matter; but still create an over-all misleading impression through failure to

disclose material information”); Commonwealth v. DeCotis, 366 Mass. 234, 238 (1974) (G.L.c. 93A is legislative attempt to “regulate business activities with the view to

providing proper disclosure of information and a more equitable balance in the relationship of consumers to persons conducting business activities”). The Attorney General is authorized to investigate such potential violations

of G.L.c. 93A.

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Exxon also argues that the CID is politically motivated, that Exxon is the victim of viewpoint discrimination, and that it is being punished for its views on global

warming. As discussed above, however, the court finds

that the Attorney General has assayed sufficient

grounds—her concerns about Exxon’s possible misrepresentations to Massachusetts consumers—upon which to

issue the CID. In light of these concerns, the court concludes that Exxon has not met its burden of showing that

the Attorney General is acting arbitrarily or capriciously

toward it.2

C.

Unreasonable Burden and Unspecific

A CID complies with G.L.c. 93A, §§ 6(4)(c) & 6(5) if it

“describes with reasonable particularity the material required, if the material required is not plainly irrelevant to

the authorized investigation, and if the quantum of material required does not exceed reasonable limits.” Matter

of a Civil Investigative Demand Addressed to Yankee

Milk, Inc., 372 Mass. at 360-61; see G.L.c. 93A, § 6(4)(c)

(requiring that CID describe documentary material to be

produced thereunder with reasonable specificity, so as

fairly to indicate material demanded); G.L.c. 93A, § 6(5)

(CID shall not “contain any requirement which would be

unreasonable or improper if contained in a subpoena du-

2

The court does not address Exxon’s arguments regarding free

speech at this time because misleading or deceptive advertising is not

protected by the First Amendment. In re Willis Furniture Co., 980

F.2d 721 (1992), citing Friedman v. Rogers, 440 U.S. 1, 13-16 (1979).

The Attorney General is investigating whether Exxon’s statements

to consumers, or lack thereof, were misleading or deceptive. If the

Attorney General’s investigation reveals that Exxon’s statements

were misleading or deceptive, Exxon is not entitled to any free speech

protection.

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ces tecum issued by a court of the commonwealth; or require the disclosure of any documentary material which

would be privileged, or which for any other reason would

not be required by a subpoena duces tecum issued by a

court of the commonwealth”).

Exxon argues that the CID lacks the required specificity and furthermore imposes an unreasonable burden

on it. With respect to specificity, Exxon takes issue with

the CID’s request for “essentially all documents related

to climate change,” and with the vagueness of some of the

demands. Memorandum of Exxon Mobil Corporation in

Support of its Emergency Motion to Set Aside or Modify

the Civil Investigative Demand or Issue a Protective Order, page 18. In particular, Exxon objects to producing

documents that relate to its “awareness,” “internal considerations,” and “decision making” on climate change issues and its “information exchange” with other companies.

The court has reviewed the CID and disagrees that it

lacks the requisite specificity. The CID seeks information

related to what (and when) Exxon knew about the impacts

of burning fossil fuels on climate change and what Exxon

told consumers about climate change over the years.

Some of the words used to further describe that information—awareness and internal considerations—simply

modify the “what” and “when” nature of the requests.

With respect to the CID being unreasonably burdensome, an effective investigation requires broad access to

sources of information. See Matter of a Civil Investigative

Demand Addressed to Yankee Milk, Inc., 372 Mass. at

364. Documentary demands exceed reasonable limits only

when they “seriously interfere with the functioning of the

investigated party by placing excessive burdens on manpower or requiring removal of critical records.” Id. at 361

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n.8. That is not the case here. At the hearing, both parties

indicated that Exxon has already complied with its obligations regarding a similar demand for documents from the

New York Attorney General. In fact, as of December 5,

2016, Exxon had produced 1.4 million pages of documents

responsive to the New York Attorney General’s request.

It would not be overly burdensome for Exxon to produce

these documents to the Massachusetts Attorney General.

Whether there should be reasonable limitations on the

documents requested for other reasons, such as based

upon confidentiality or other privileges, should be discussed by the parties in a conference guided by Superior

Court Rule 9C. After such a meeting, counsel should submit to the court a joint status report outlining disagreements, if any, for the court to resolve.

II.

Disqualification of Attorney General

Exxon requests the court to disqualify the Attorney

General and appoint an independent investigator because

her “public remarks demonstrate that she has predetermined the outcome of the investigation and is biased

against ExxonMobil.” Memorandum of Exxon Mobil Corporation in Support of its Emergency Motion to Set Aside

or Modify the Civil Investigative Demand or Issue a Protective Order, page 8. In making this request, Exxon relies on a speech made by the Attorney General on March

29, 2016, during an “AGs United for Clean Power” press

conference with other Attorneys Generals. The relevant

portion of Attorney General Healey’s comments were:

Part of the problem has been one of public

perception, and it appears, certainly, that

certain companies, certain industries, may

not have told the whole story, leading many

to doubt whether climate change is real and

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to misunderstand and misapprehend the

catastrophic nature of its impacts. Fossil

fuel companies that deceived investors and

consumers about the dangers of climate

change should be, must be, held accountable. That’s why I, too, have joined in investigating the practices of Exxon Mobil. We

can all see today the troubling disconnect

between what Exxon knew, what industry

folks knew, and what the company and industry chose to share with investors and

with the American public.

General Laws c. 93A, § 6 gives the Attorney General

power to conduct investigations whenever she believes a

person has engaged in or is engaging in any conduct in

violation of G.L.c. 93A. Bodimetric Profiles, 404 Mass. at

157. In the Attorney General’s comments at the press conference, she identified the basis for her belief that Exxon

may have violated G.L.c. 93A. In particular, she expressed

concern that Exxon failed to disclose relevant information

to its Massachusetts consumers. These remarks do not evidence any actionable bias on the part of the Attorney

General; instead it seems logical that the Attorney General inform her constituents about the basis for her investigations. Cf. Buckley v. Fitzsimmons, 509 U.S. 259, 278

(1993) ( “Statements to the press may be an integral part

of a prosecutor’s job . . . and they may serve a vital public

function”); Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir.

2013) (“Not only do public officials have free speech

rights, but they also have an obligation to speak out about

matters of public concern”); see also Commonwealth v.

Ellis, 429 Mass. 362, 372 (1999) (due process provisions

require that prosecutor be disinterested in sense that

prosecutor must not be—nor appear to be—influenced in

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exercise of discretion by personal interests). It is the Attorney General’s duty to investigate Exxon if she believes

it has violated G.L.c. 93A, § 6. See also G.L.c. 12, § 11D

(attorney general shall have authority to prevent or remedy damage to the environment caused by any person or

corporation). Nothing in the Attorney General’s comments at the press conference indicates to the court that

she is doing anything more than explaining reasons for

her investigation to the Massachusetts consumers she

represents. See generally Ellis, 429 Mass. at 378 (“That

in the performance of their duties [the Attorney General

has] zealously pursued the defendants, as is [his or her]

duty within ethical limits, does not make [his or her] involvement improper, in fact or in appearance”).

III.

Stay

On June 15, 2016, Exxon filed a complaint and a motion for preliminary injunction in the United States District Court for the Northern District of Texas alleging

that the CID violates its federal constitutional rights.

Exxon Mobil requests this court to stay its adjudication of

the instant motion pending resolution of the Texas federal

action. See G.L.c. 223A, § 5 (“When the court finds that in

the interest of substantial justice the action should be

heard in another forum, the court may stay or dismiss the

action in whole or in part on any conditions that may be

just”); see WR Grace & Co. v. Hartford Accident & Indemnity Co., 407 Mass. 572, 577 (1990) (decision whether

to stay action involves discretion of motion judge and depends greatly on specific facts of proceeding before

court). The court determines that the interests of substantial justice dictate that the matter be heard in Massachusetts.

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This matter involves the Massachusetts consumer

protection statute and Massachusetts case law arising under it, about which the Massachusetts Superior Court is

certainly more familiar than would be a federal court in

Texas. See New Amsterdam Casualty Co. v. Estes, 353

Mass. 90, 95-96 (1967) (factors to consider include administrative burdens caused by litigation that has its origins

elsewhere and desirability of trial in forum that is at home

with governing law). Further, the plain language of the

statute itself directs a party seeking relief from the Attorney General’s demand to the courts of the commonwealth.

See G.L.c. 93A, § 6(7) (motion to set aside “may be filed in

the superior court of the county in which the person

served resides or has his usual place of business, or in Suffolk county”); see also G.L.c. 93A, § 7 (“A person upon

whom notice is served pursuant to the provisions of section six shall comply with the terms thereof unless otherwise provided by the order of a court of the commonwealth”). The court declines to stay this proceeding.

ORDER

For the reasons discussed above, it is hereby

ORDERED that the Emergency Motion of Exxon Mobil

Corporation to Set Aside or Modify the Civil Investigative

Demand or Issue a Protective Order is DENIED and the

Commonwealth’s Cross Motion to Compel ExxonMobil

Corporation to Comply with Civil Investigative Demand

No. 2016-EPD-36 is ALLOWED consistent with the

terms of this Order. The parties are ORDERED to submit a joint status report to the court no later than February 15, 2017, outlining the results of a Rule 9C Conference.

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/s/ Heidi E. Brieger

Heidi E. Brieger

Associate Justice of the Superior Court

Dated at Lowell, Massachusetts, this 11th day of January, 2017.