Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 1 of 107 PageID 4234 EXHIBIT 6 App. 054 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 2 of 107 PageID 4235 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF TEXAS 3 DALLAS DIVISION 4 5 EXXON MOBIL CORPORATION, Plaintiff, 6 VS. 7 8 9 10 MAURA TRACY HEALEY, Attorney General of Massachusetts, in her official capacity, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 4:16-CV-469-K DALLAS, TEXAS September 19, 2016 11 12 TRANSCRIPT OF PRELIMINARY INUNCTION HEARING 13 BEFORE THE HONORABLE ED KINKEADE 14 UNITED STATES DISTRICT JUDGE 15 16 A P P E A R A N C E S: 17 18 19 20 21 FOR THE PLAINTIFF: MR. JUSTIN ANDERSON Paul, Weiss, Ritkind, Wharton & Garrison LLP 2001 K Street, NW Washington, D.C. 20006 janderson@paulweiss.com (202) 223-7300 22 23 24 25 MR. SAM RUDMAN Paul, Weiss, Ritkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 srudman@paulweiss.com (212) 373-3512 Todd Anderson, RMR, CRR App. 055 (214) 753-2170 1 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 3 of 107 PageID 4236 MR. TED WELLS Paul, Weiss, Ritkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 twells@paulweiss.com (212) 373-3317 2 3 4 5 MR. RALPH A. DUGGINS Cantey Hanger LLP Cantey Hanger Plaza 600 W. 6th Street Suite 300 Fort Worth, Texas 76102 rduggins@canteyhanger.com (817) 877-2800 6 7 8 9 10 MS. NINA CORTELL Haynes & Boone LLP 2323 Victory Avenue Suite 700 Dallas, Texas 75219 nina.cortell@haynesboone.com (214) 651-5579 11 12 13 14 15 16 17 18 FOR THE DEFENDANT: MR. DOUGLAS A. CAWLEY McKool Smith 300 Crescent Court Suite 1500 Dallas, Texas 75201 dcawley@mckoolsmith.com (214) 978-4972 19 20 21 22 MR. RICHARD KAMPRATH McKool Smith 300 Crescent Court Suite 1500 Dallas, Texas 75201 kramprath@mckoolsmith.com (214) 978-4210 23 24 25 Todd Anderson, RMR, CRR App. 056 (214) 753-2170 2 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 4 of 107 PageID 4237 MR. RICHARD JOHNSTON Massachusetts Attorney General's Office One Ashburton Place 20th Floor Boston, Massachusetts 02108 Richard.Johnston@state.ma.us (617) 963-2028 2 3 4 5 6 MS. MELISSA HOFFER Massachusetts Attorney General's Office One Ashburton Place 19th Floor Boston, Massachusetts 02108 melissa.hoffer@state.ma.us (617) 963-2322 7 8 9 10 11 MR. PETER MULCAHY Massachusetts Attorney General's Office One Ashburton Place 18th Floor Boston, Massachusetts 02108 peter.mulcahy@state.ma.us (617) 963-2068 12 13 14 15 16 17 18 COURT REPORTER: 19 20 MR. TODD ANDERSON, RMR, CRR United States Court Reporter 1100 Commerce St., Rm. 1625 Dallas, Texas 75242 (214) 753-2170 21 22 23 24 Proceedings reported by mechanical stenography and transcript produced by computer. 25 Todd Anderson, RMR, CRR App. 057 (214) 753-2170 3 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 PRELIMINARY INJUNCTION HEARING - SEPTEMBER 19, 2016 P R O C E E D I N G S 2 3 THE COURT: Okay. Case of Exxon Mobil Corp. versus 4 Maura Tracy Healey and a bunch of others, Cause Number 5 4:16-CV-00469-K, set today for hearing on this motion for 6 preliminary injunction. 7 And before I begin, let me know. If y'all have 8 already settled this, let me know and I'll stop right now. 9 Y'all didn't settle this? I'm just shocked. 10 thought for sure. 11 to keep y'all from being so serious. 12 I'm kidding. I'm kidding. I'm just trying I know it's an important case, but as far as I know there is no dead bodies in this case, correct? 14 it's not a murder case. 15 so y'all kind of calm it down a little bit. There's not -- There's no -- death penalty is not -- 16 All right. 17 Mr. -- who's going to argue for ExxonMobil? So here we go. Y'all have 300 lawyers on your side. 19 Ms. Cortell, are you going to do it? 20 MS. CORTELL: 21 No? I would have 13 18 4 Page 5 of 107 PageID 4238 I am not, Your Honor. I'm sort of the introducer. 22 THE COURT: Introducer. 23 MS. CORTELL: 24 THE COURT: 25 MS. CORTELL: Introducer, yes, sir. Well, good. Your local introducer. Todd Anderson, RMR, CRR App. 058 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: 2 Okay. 3 MS. CORTELL: 4 Well, tell me who these folks are. 6 THE COURT: 11 Gosh, are you out of law school? MS. CORTELL: THE COURT: Your Honor, he's a little older than he Is he? You've got to admit he looks pretty young. MS. CORTELL: 13 THE COURT: 14 MS. CORTELL: He does. I mean, really. And they're looking younger every day. In fact, younger next to him is Sam Rudman. 16 THE COURT: 17 MS. CORTELL: 18 You looks. 12 15 Good morning, Judge. look so young. 8 10 Presenting for ExxonMobil today will be Justin Anderson at the far end of the table. MR. ANDERSON: 9 Okay. And then our senior lawyer from Paul Weiss is Ted Wells. 19 THE COURT: Hi, Mr. Wells. 20 MR. WELLS: Would somebody say I look younger? 21 THE COURT: I wasn't going to say that about you, 22 23 24 25 5 Well, good, good. 5 7 Page 6 of 107 PageID 4239 Mr. Wells. How are you? Okay. MS. CORTELL: And from Cantey Hanger, local counsel with me, is Ralph Duggins. THE COURT: Okay. Hi, Mr. Duggins. Todd Anderson, RMR, CRR App. 059 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 7 of 107 PageID 4240 1 MR. DUGGINS: Good morning, Your Honor. 2 MS. CORTELL: And then on behalf of ExxonMobil we 3 have vice president and general counsel, Jack Balagia. 4 MR. BALAGIA: 5 THE COURT: 6 Good morning, Your Honor. The only person with any white hair on your side. 7 MS. CORTELL: 8 THE COURT: 9 Okay. Your Honor, I won't disclose my true -- Well, okay. I won't tell. Well, good. And y'all are going to take 45 minutes; is 10 that right? 11 offer. 12 We're not calling any witnesses. 13 MR. ANDERSON: And you're going to offer whatever you've got to And I understand that's what both side are going to do. Is that right? That's right, Judge. We had an 14 agreement to just use the materials that are already in the 15 record. 16 17 THE COURT: I want to tell you I appreciate y'all doing that and y'all working together on that. 18 MR. ANDERSON: 19 THE COURT: 20 21 Of course, Judge. Okay. On the other side is there an introducer, or do I need to go through it? MR. CAWLEY: Good morning, Your Honor. Douglas 22 Cawley from McKool Smith, and I am the introducer. 23 law school, but I do have white hair. 24 25 6 THE COURT: Yes, you do. I am out of And my hair was as long as yours until I got a haircut yesterday. Todd Anderson, RMR, CRR App. 060 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. CAWLEY: 2 THE COURT: 3 MR. CAWLEY: 4 THE COURT: 5 MR. CAWLEY: 6 Ah-oh. Tell me about all these -Also presenting for Attorney General Healey will be Rich Johnston. 8 MR. CAWLEY: Attorney General of Massachusetts. THE COURT: 11 MR. JOHNSTON: 12 THE COURT: 15 Well, good. Good to have you. Thank you very much. You have one of those really strong "park the car" and Boston kind of accents or -MR. JOHNSTON: No, I wasn't born there, so I'm not as strong as my neighbors -- 16 THE COURT: 17 MR. JOHNSTON: 18 THE COURT: 19 Good morning, Your Honor. He is chief legal counsel to the 10 14 All right. Thank you, Your Honor. MR. JOHNSTON: 13 Okay. But -- -- in terms of accent. If I need an interpreter, I'll tell you as you get to talking, okay? 20 MR. JOHNSTON: 21 THE COURT: 22 MR. CAWLEY: We also have with us Melissa Hoffer. 23 MS. HOFFER: Good morning, Your Honor. 24 MR. CAWLEY: She is chief of the Energy and 25 7 All right. 7 9 Page 8 of 107 PageID 4241 Okay. Thanks. All right. Good. Environmental Bureau of the Attorney General's Office. Todd Anderson, RMR, CRR App. 061 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: 2 MS. HOFFER: 3 THE COURT: 4 MR. CAWLEY: 5 MR. MULCAHY: 6 THE COURT: 7 MR. CAWLEY: Page 9 of 107 PageID 4242 8 Also in Massachusetts, correct? Yes, Your Honor. Okay. Great. And beside her, Mr. Peter Mulcahy. Good morning. Good morning. Mr. Mulcahy is an Assistant Attorney 8 General in the Environmental Protection Division of the 9 Attorney General's Office. 10 THE COURT: Okay. 11 MR. CAWLEY: 12 MR. KAMPRATH: 13 MR. CAWLEY: 14 THE COURT: 15 MR. CAWLEY: 16 THE COURT: And then Richard Kamprath -Good morning, Judge. -- who's with McKool Smith in Dallas. Okay. We're ready to proceed, Your Honor. All right. 17 y'all. 18 and I've read everything, except there were some things filed 19 late that I'm sorry I haven't, but I'll get to those as soon as 20 I can. 21 22 And I appreciate it. Well, it's good to have And I've got all your documents And I've got the Defendant's PowerPoint of what you're going to present today. 23 And I'm glad to take y'all's, too, at some point if 24 you've got some sort of PowerPoint of what you're doing later 25 on. You can file it. You don't have to file it right now, but Todd Anderson, RMR, CRR App. 062 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. ANDERSON: THE COURT: 5 MR. ANDERSON: Okay. That would be great. And, of course, to opposing counsel also. 7 THE COURT: 8 MR. ANDERSON: 9 And, Judge, we're happy to hand up now a copy. 4 6 Great. We also prepared for the Court a binder that has all of the exhibits that we intend to use 10 during today's hearing, and it's cited in this presentation. 11 So it might be a little bit easier to flip through a binder 12 than to go through the appendices that were filed. 13 THE COURT: 14 Okay. Okay. That's great. And I'm assuming we've got some really sharp 15 computer people that are going to make all of this work 16 correctly today. 17 computer, so I'm assuming you're the man? 18 All right. I see a gentleman back there in front of a He's the man. 19 Okay. 20 MR. MULCAHY: 21 THE COURT: 22 MR. MULCAHY: 23 THE COURT: Okay. All right. Who's doing it on y'all's side? 24 25 9 you can, okay? 2 3 Page 10 of 107 PageID 4243 Okay. Where did you go to law school? Harvard. Do they teach this computer stuff there? Not well. All right. We're going to find out. Todd Anderson, RMR, CRR Who's App. 063 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 3 MR. ANDERSON: I have a clicker here, Your Honor, but we have redundancy. THE COURT: Okay. 5 All right. So here we go. 6 MR. ANDERSON: 7 THE COURT: 8 MR. ANDERSON: poster boards. All right. May I approach? Sure. And, Your Honor, we also prepared two With the Court's permission I'd like to use them during the presentation. 11 THE COURT: 13 I'm ready. Thank you, Judge. 10 12 Look, there's no jury here. Y'all can do -- you can even walk around. Now, if this were normal, I would make you wear white 14 wigs and stay at the podium and use English that was used a 15 hundred years ago, but not today. 16 MR. ANDERSON: 17 10 doing the computer side? 4 9 Page 11 of 107 PageID 4244 Thank you. Thank you in particular for the white wigs. 18 THE COURT: Yeah. 19 MR. ANDERSON: 20 THE COURT: 21 (Pause) 22 THE COURT: That's right. It would be hot in here. It would be good. And I know it kind of seems like we have 23 low lights in here, but that's so we can really get good -- 24 it's not so that we'll look like a lounge or something. 25 just so we can really see this up here. Todd Anderson, RMR, CRR It's App. 064 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 turn it up a little bit, Ronnie. Go ahead. 4 MR. ANDERSON: 5 boards from where you're sitting? 6 8 9 THE COURT: Judge, are you able to see the poster I can see this one. I can't see that one. Okay. can't see it. And y'all can get up and walk around if you That's fine. 10 Okay. 11 MR. ANDERSON: 12 THE COURT: 13 MR. ANDERSON: All right. May I proceed? Sure. Judge, a preliminary injunction is an 14 extraordinary remedy, and this is an extraordinary case. 15 extraordinary because the Massachusetts Attorney General 16 announced a plan to shape public opinion on climate change by 17 holding her perceived political opponents to account for 18 disagreeing with her. 19 It's She memorialized her plan with her collaborators in a 20 common interest agreement that has its express purpose 21 regulating speech. 22 accurate dissemination of information about climate change, 23 accurate information according to the Attorney General. 24 25 11 So if you need to turn it up a little bit, we can 3 7 Page 12 of 107 PageID 4245 It listed among its objectives ensuring the And she issued a civil investigative demand that was focused on speech that she disagrees with and that targeted Todd Anderson, RMR, CRR App. 065 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 13 of 107 PageID 4246 12 entities who she perceives to be her political opponents. 2 So, Your Honor, this case is extraordinary because 3 the evidence of viewpoint bias is so clear even before 4 discovery is started. 5 And it's also extraordinary because of the widespread 6 criticism that this investigation has drawn, including in the 7 amicus brief that was filed by 11 state attorneys general 8 before this Court last week. 9 position to know the difference between a legitimate use of law Those state AG's would be in a 10 enforcement power and a pretextual abusive one to regulate 11 speech. 12 Your Honor, that's why we're here today. We're here 13 today to ask this Court to prevent this pretextual use of law 14 enforcement power to constrain and restrict the public debate 15 on climate change. 16 17 18 19 20 THE COURT: Why did y'all get singled out? lot of energy companies. MR. ANDERSON: Well, Your Honor, as part of the evidence in the record -THE COURT: I'm asking that because obviously I'm 21 going to ask them that. 22 think you got singled out. 23 There's a And I just want you to tell me why you I mean, could they have gone against Shell, who is 24 based in another part of the world, or gone against some 25 wildcatters here in Texas, or people in California? Todd Anderson, RMR, CRR Oh, no, App. 066 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 13 Page 14 of 107 PageID 4247 1 there's no drilling out there, so it wouldn't be in California. 2 So why y'all? 3 MR. ANDERSON: Your Honor, it's a good question. And 4 in the record we see that there has been a campaign to 5 discredit ExxonMobil in particular that was spearheaded by 6 climate change activists and trial attorneys who actually 7 presented their theories at the conference that kicked off this 8 investigation. 9 And so what you see is actually documented, and we 10 have it in the presentation, Your Honor, where, you know, back 11 in January of this year at the Rockefeller Family Fund there is 12 explicitly an agenda about discrediting ExxonMobil, 13 delegitimizing it as a political actor. 14 And so they've targeted ExxonMobil as, from their 15 point of view, a perceived political opponent perhaps because 16 it's one of the most prominent, if not the most prominent, 17 traditional energy company. 18 And it's well documented. Now, there are reasons -- I think that's a good 19 question for the other side about why they're targeting 20 ExxonMobil. 21 THE COURT: I'm going to ask them. 22 asking you. 23 than this that prompted this? 24 25 I get that. That's why I'm I mean, there's nothing else other You know, I came up through the world of politics. That's how I got here. I mean, I wasn't just out here because Todd Anderson, RMR, CRR App. 067 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 15 of 107 PageID 4248 1 I went to Harvard and they just found me. 2 world of running for election and that sort of thing, so I 3 understand a little bit about politics. 4 14 I came through the Did y'all poke the bear, so to speak? Did you do 5 something to the Attorney General in Massachusetts that brought 6 this on? 7 money trying to promote somebody else or -- no? 8 9 Or did y'all give -- did the president of Exxon give MR. ANDERSON: Your Honor, you know, that doesn't seem to be the story here. 10 THE COURT: Okay. 11 MR. ANDERSON: The issue is that -- what's 12 extraordinary about this is that ExxonMobil doesn't really do 13 anything in Massachusetts. 14 We don't -- we don't issue securities there. 15 THE COURT: 16 MR. ANDERSON: I mean, we don't sell gas there. There's no ExxonMobil stations there? Oh, there are, but they're owned by 17 franchisees, so they're not actually owned by the company 18 there. 19 They're owned by independent owners. But what's more -- what's even more remarkable is 20 that for the last ten years -- and, again, this is part of the 21 presentation as well -- it's well documented ExxonMobil has 22 acknowledged the risks of climate change, acknowledged that 23 climate change could affect its business, and that regulations 24 that might be enacted in response to climate change could 25 affect its business as well. Todd Anderson, RMR, CRR App. 068 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 16 of 107 PageID 4249 1 In fact, it's been promoting for at least since, I 2 think, 2009 the carbon tax as a way of responding to climate 3 change. 4 15 So this idea that someone has poked the bear or has 5 been antagonistic towards -- in particular towards the views of 6 the Attorney General is just contradicted by the record. 7 But, you know, if it would help the Court, what 8 perhaps I could do is just proceed through the facts that 9 are -- 10 11 THE COURT: Oh, I'm going to stop you when I want to. It doesn't work that way. 12 I don't know. They may -- where are you from? 14 MR. ANDERSON: I'm from Washington, Judge. 15 THE COURT: 13 forgot. Yeah, yeah. They may do that there. 16 That's not how we do it here, okay? 17 and ran in here to ask questions. 18 MR. ANDERSON: 19 20 21 22 I I tied my horse outside Well, Your Honor, what could be helpful, if it would be usable to the Court -THE COURT: Oh, go through your deal and I'll stop you when I want to. MR. ANDERSON: Okay. Why don't we begin with the way 23 this investigation began. It began with a press conference in 24 New York back in March where the Attorney General announced, 25 you know, the investigation. Todd Anderson, RMR, CRR App. 069 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 17 of 107 PageID 4250 16 And there are really three critical takeaways from 2 this conference. 3 objective. 4 First, the explicitly political nature of the And as you can see in the picture there, you know, 5 they're standing behind "AG's United for Clean Power," you 6 know, a policy objective. 7 address climate change we -- the country has to move from 8 traditional sources of energies into renewable sources of 9 energy. It's this idea that in order to And they're all very frustrated. Members of this 10 coalition are frustrated with the Federal Government for not 11 doing more. 12 And then what you see they identify as a big part of 13 the problem here is that the public is not on their side, that 14 there's confusion, there's public perception where the public 15 hasn't yet agreed that these are the correct solutions to the 16 climate change problem. 17 And to this coalition that debate is over, the 18 solutions are clear, and so what they need to do is clear up 19 the confusion that remains. 20 that is by holding accountable those entities and voices that 21 disagree. 22 THE COURT: And the way they're going to do Basically, what they're saying is Exxon 23 hasn't been telling the truth and we want to show that so that 24 the public perception will change; is that right? 25 MR. ANDERSON: Essentially -- essentially what Todd Anderson, RMR, CRR App. 070 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 18 of 107 PageID 4251 17 1 they're saying is even more than that, is that -- and you'll 2 see this in documents -- is that what we want to do is get 3 ExxonMobil to stop speaking or to speak in favor of the 4 policies we support so that public perception will come over to 5 our side so we can enact the policies that we prefer, you know, 6 renewable energy and the other things that Al Gore invests in. 7 And the problem with that is that that's just an 8 improper use of an investigative law enforcement authority. It 9 might be appropriate to hold congressional hearings or rallies 10 outside of -- you know, outside of Congress to support a 11 transition from traditional energy to these renewable sources. 12 But the idea that you use a subpoena to burden those on the 13 other side of the debate, to chill them, to ask about their 14 policy positions, is just a misuse of law enforcement power. 15 That's not what that power is for. 16 17 And, Judge, maybe it would be helpful to hear some of the Attorney General's own words -- 18 THE COURT: 19 MR. ANDERSON: 20 Okay. -- as she describes this political objective. 21 THE COURT: Okay. 22 (Video played) 23 "But make no mistake about it, in my view, there's 24 nothing we need to worry about more than climate change. 25 incredibly serious when you think about the human and the Todd Anderson, RMR, CRR App. 071 (214) 753-2170 It's Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 19 of 107 PageID 4252 1 economic consequences and indeed the fact that this threatens 2 the very existence of our planet. 3 Not only must we act, we have a moral obligation to act. 4 is why we are here today. 5 18 Nothing is more important. That "We know from the science and we know from experience 6 the very real consequences of our failure to address this 7 issue. 8 of extreme urgency, but, unfortunately, it is only recently 9 that this problem has begun to be met with equally urgent Climate change is and has been for many years a matter 10 action. 11 and it appears, certainly, that certain companies, certain 12 industries, may not have told the whole story, leading many to 13 doubt whether climate change is real and to misunderstand and 14 misapprehend the catastrophic nature of its impacts. 15 Part of the problem has been one of public perception, "The states represented here today have long been 16 working hard to sound the alarm, to put smart policies in 17 place, to speed our transition to a clean energy future, and to 18 stop power plants from emitting millions of tons of dangerous 19 global warming pollution into our air." 20 MR. ANDERSON: So, Your Honor, as you see in these 21 statements, it's all about politics. 22 from traditional energy to renewables. 23 It's all about moving And in particular, part of the problem that the 24 Defendant identifies is one of perception that there are 25 certain industries, certain companies -- in the next slide Todd Anderson, RMR, CRR App. 072 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 20 of 107 PageID 4253 19 1 she'll name ExxonMobil as one of them -- that have been causing 2 people not to agree with her about the catastrophic nature of 3 the impact of climate change or the need to adopt these smart 4 policies that she prefers that speed our transition to a clean 5 energy future. 6 7 And then the next -- in the next breath she says, so this is how we're going to clear that up. 8 (Video played) 9 "Fossil fuel companies that deceived investors and 10 consumers about the dangers of climate change should be, must 11 be, held accountable. 12 investigating the practices of ExxonMobil. 13 today the troubling disconnect between what Exxon knew, what 14 industry folks knew, and what the company and industry chose to 15 share with investors and with the American public." That's why I, too, have joined in We can all see 16 THE COURT: 17 (Video played) 18 "By quick, aggressive action --" 19 THE COURT: 20 go after other companies, too. 21 That's -- I don't know what other -- I guess there are other 22 inferences, but that's what it seems. 23 24 25 So if you stop there -- -- that seems to imply they're going to MR. ANDERSON: Yeah. That's what she says. I mean, I think it's a fair -- fair argument, Judge. THE COURT: And I guess my question is going to be, Todd Anderson, RMR, CRR App. 073 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 21 of 107 PageID 4254 20 so why aren't they here? 2 Why don't we just have up here everybody at once, get 3 all this over with? 4 what's going on? 5 Is it just one of many beginning, or MR. ANDERSON: Judge, it's unclear, and I think a lot 6 will depend on what the Court does today about whether it 7 allows this type of abusive, you know, use of law enforcement 8 power to continue or whether it orders it to stop. 9 And I think it's exactly right, that, you know, based 10 on that statement -- and by the way, based on the previous 11 subpoena that was before this Court that was issued by the 12 Virgin Islands, they actually targeted some of the nonprofit 13 groups that speak out on this issue, and there's still 14 litigation going on in DC over that effort. 15 So I think you're right to see that this is the 16 beginning of a trend, a trend that 11 state AG's have raised 17 the alarm about and others are raising the alarm about. 18 it's in its infancy, and so there's still time to put an end to 19 it. But 20 THE COURT: Okay. 21 (Video played) 22 "-- educating the public, holding accountable those 23 who have needed to be held accountable for far too long, I know 24 we will do what we need to do to address climate change and to 25 work for a better future." Todd Anderson, RMR, CRR App. 074 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. ANDERSON: 2 THE COURT: 21 Page 22 of 107 PageID 4255 And these statements, Judge -- My question is, regardless of what we do 3 here, if China and India and third world countries don't do 4 something -- doesn't science say we've still got to get ahold 5 of that? 6 I mean, it seems to me. I don't -- they are belching out stuff in China. I 7 mean, you can barely go into their main cities without a mask 8 on. 9 anyway, at that point, I don't get it. 10 11 It's terrible. I mean, I guess I don't get it. But, But I'll -- you can explain it to me. MR. ANDERSON: Judge, that's a great point, because 12 one of the very observations this subpoena, this civil 13 investigative demand seeks to have ExxonMobil explain, is the 14 former chairman's statement that in order to address climate 15 change there needed to be a global effort that included 16 reducing emissions from third world countries, so -- 17 THE COURT: But I guess their answer is going to be, 18 and I'll anticipate it, is that if you're lying, you're kind of 19 the lead liar, and so you're leading everybody else down the 20 primrose path. 21 You are the pied piper. MR. ANDERSON: But that's exactly the point. 22 lying about public policy. 23 one side, someone on the other side. 24 25 THE COURT: This is For every debate there's someone on No, no, no. I agree with that. But we kind of know back when those who were growing tobacco, it's Todd Anderson, RMR, CRR App. 075 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 23 of 107 PageID 4256 22 1 going to cause cancer. 2 There was -- there were things being hidden by the tobacco 3 companies that weren't -- they weren't telling the truth about 4 it, I mean, if that's what they're saying. 5 I mean, it isn't just public policy. Is this -- is this that argument that, hey, there's 6 really bad stuff behind all this that's causing terrible 7 things? 8 9 MR. ANDERSON: Well, you know, Judge, if that were the argument, then you would expect the Defendants to be able 10 to come forward and explain to you what the basis for the 11 argument is, because we've shown that for the last ten years 12 ExxonMobil has openly acknowledged the risks of climate change 13 and again supports the carbon tax. 14 We have shown to you that this is a statute -- this 15 is a statute that is a four-year limitations period. 16 we're really talking about is what happened in Massachusetts 17 over the last four years. 18 So all And we said in our briefs, identify the misleading 19 statement, identify the falsehood, tell us what you think 20 ExxonMobil did wrong. 21 things in response: 22 you look at them and -- you know, in the brief it makes it 23 sound like in the 1980s ExxonMobil had it all figured out, it 24 essentially determined that climate change was a serious 25 threat, it knew how many degrees of temperature increase we And what we got were basically two five documents from the 1980s where, if Todd Anderson, RMR, CRR App. 076 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 24 of 107 PageID 4257 1 were looking at, and it knew the policies that had to be 2 enacted in order to respond. 3 THE COURT: 4 MR. ANDERSON: 5 documents. 6 entirely misleading. 7 23 Okay. And that's the characterization of the And this has been in the press, too. But it's We put those documents in front of you. 8 the binder. They're in this presentation. 9 they're riddled with caveats, hesitation, doubt. They're in You read them and They say 10 things like, you know, this is all subject to further analysis, 11 we need better models, it would be premature to take any action 12 based on this. 13 So, first of all, you've got that. The documents 14 themselves are not these declarative, decisive statements that 15 the Defendants would like them to be. 16 Then you also have the fact that what's in those 17 documents is entirely consistent with the record that was being 18 issued by the EPA, by MIT, by basically everyone speaking on 19 this. 20 documents say and what was generally available to the public at 21 the time in the 1980s. 22 So there's no big disconnect between what these internal And three is, you know, these documents have been 23 sitting at the University of Texas since 2003. 24 they're not these smoking guns that were being locked away and 25 hidden that were somehow rested and came to light. Todd Anderson, RMR, CRR They're not -- They're App. 077 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 24 Page 25 of 107 PageID 4258 1 just corporate records that nobody was ashamed of, no one was 2 embarrassed, because this is not at all different from what the 3 public knew or indicative of any type of effort to conceal. 4 So that was one, and I think -- 5 THE COURT: 6 Why are they at U.T.? that. 7 MR. ANDERSON: 8 THE COURT: 9 MR. ANDERSON: 10 I'm sorry? Why are they at the University of Texas? They were deposited there, I think, around 2003. 11 12 Remind me about THE COURT: That's where Exxon puts its old archives or something or -- 13 MR. ANDERSON: It might have been Legacy Mobil. We 14 could find out and provide the Court with more information, but 15 I believe it was just the nature of providing corporate records 16 to a university -- 17 THE COURT: Okay. 18 MR. ANDERSON: 19 So that was one theory, Judge. -- as is often the case. 20 withstand scrutiny. 21 about. 22 perception by putting a subpoena on ExxonMobil to discourage it 23 from speaking out on the other side of this debate. 24 25 It's pretextual. And it doesn't This is about this. This is not what this is This is about changing public But they came up with this other theory which was about the idea, well, if climate change regulations come into Todd Anderson, RMR, CRR App. 078 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 26 of 107 PageID 4259 25 1 place, then ExxonMobil might not be able to take the oil out of 2 the ground and might not be able to refine and sell it. 3 Now, you know, that's -- their argument is that our 4 proved reserves might have to be impaired or written down or 5 something, as the theory goes, because of these regulations 6 that might come up in the future. 7 Now, that sounds -- it sounds sketchy anyway, but 8 let's say you take it as a plausible argument. Big problem 9 with that is that the SEC in its regulations makes it 10 unambiguous, clear as day, that you can't anticipate future 11 regulations. 12 regulations as they exist today. 13 You have to calculate proved reserves based on So even if the Defendants were right, and I don't 14 think they are, but even if they were right that regulations 15 are coming in the next few years that would limit the ability 16 to extract traditional fossil fuel, SEC says you don't take 17 that into account in reporting proved reserves. 18 of fraud easily is swept away. 19 So that theory And so I guess the question still is, so what is the 20 theory that would justify 40 years of records about climate 21 change? 22 questions about policy statements that ExxonMobil has made in 23 the past? 24 25 What is the theory that justifies asking all of these And it's this -THE COURT: side of that. Well, I mean, let's think about the other If y'all were doing some really terrible things, Todd Anderson, RMR, CRR App. 079 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 27 of 107 PageID 4260 26 1 which apparently they think you are, shouldn't they be 2 aggressive, and isn't that what the courts are for, and they're 3 being innovative, and that's what we do here? 4 I mean, that's -- that's why we have courts, to come 5 in here and fight about that, and try to use the court system 6 to punish evildoers. 7 Isn't that what it's for? MR. ANDERSON: The Court doesn't -- the Court is 8 really -- actually, it's explicitly not for the purpose of 9 punishing evildoers because they speak out on the wrong -- on 10 the perceived wrong side of a policy debate. 11 THE COURT: No, no, no, no, not just about speech, 12 but if you were withholding -- you know, like the tobacco 13 companies just lied about stuff for years and years and years, 14 oh, no, we don't have this, we don't have that, we don't know 15 that it's cancer causing, or the same in the asbestos kinds of 16 cases. 17 If companies were doing that, companies ought to be 18 held accountable. That's what I'm assuming they're going to 19 argue ultimately. I don't know -- they're not arguing that 20 today, but ultimately that's what they're going to say is, see, 21 we told you, they had these documents that showed all this 22 terrible stuff. 23 24 25 MR. ANDERSON: Well, Judge, again, it would have to fit into some theory of fraud that could be litigated. I mean, you might have noticed that the New York Todd Anderson, RMR, CRR App. 080 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 28 of 107 PageID 4261 27 1 Attorney General has entirely walked way from this theory that 2 we knew in the past and that that was fraudulent because we 3 didn't disclose it. 4 He's completely -- it's reported in the press. He's 5 completely walked away from that, is now focused on the 6 stranded asset theory that is equally flawed for the reasons I 7 just described. 8 THE COURT: The what? 9 MR. ANDERSON: The idea that our reserves need to be 10 impaired because of future government regulations. 11 to be what he's shifted his focus on. 12 THE COURT: 13 MR. ANDERSON: 14 That seems That they should be impaired? They should be, even though the SEC regulations prohibit that. 15 THE COURT: Okay. 16 MR. ANDERSON: But the -- Judge, I think that there 17 would need to be some type of theory that actually made sense, 18 some theory of fraud that you could present with a straight 19 face and not turn red when you're explaining it, because what 20 we have here is a statute that says don't defraud consumers, 21 don't defraud investors in the state of Massachusetts, 22 four-year limitations period. 23 And so we have said, what have we said? What have we 24 done that could possibly give rise to this -- to an enforcement 25 action against the company? Todd Anderson, RMR, CRR App. 081 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 29 of 107 PageID 4262 28 And, you know, we've gone through it about we don't 2 sell gas there, we don't talk -- we don't sell gas to 3 consumers, we don't sell our equity to investors. 4 through. 5 it? 6 We've gone And what are the statements that could give rise to And all they've been able to come back with are these 7 two pretexts. They say, oh, these five documents show that you 8 knew something. 9 They show that in the early '80s ExxonMobil knew about as much That's absurd. They don't show anything. 10 as anyone else on climate change and recognized that it was a 11 fluid situation, the research needed to be developed, and we'll 12 see where it goes. 13 And in the last ten years, as science has gotten a 14 little more clear, as people's understanding has become a 15 little more focused, ExxonMobil has been right there saying 16 climate change is real, we recognize that, and it could have 17 impacts on our business. 18 So when you talk about the comparisons to tobacco 19 companies, it's just totally inept. 20 here. 21 didn't, there's no basis for that. 22 concealed information to the public, you've got no basis for 23 that, certainly not during the four-year limitations period. The idea that ExxonMobil knew anything that others 24 25 There's no comparison THE COURT: and see. The idea that ExxonMobil Well, they want to -- they want to look That's what they want. Todd Anderson, RMR, CRR They want to look and see. App. 082 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 30 of 107 PageID 4263 29 They don't trust you. 2 I mean, they just -- hey, he's a nice man, we like 3 him, he's a good lawyer and all that, but we don't trust Exxon. 4 We'll just look and we'll determine one way or the other what 5 the real -- what the real truth is. 6 their argument? 7 MR. ANDERSON: Isn't that going to be Well, that is, and that sounds like a 8 fishing expedition to me. It sounds like they're going out 9 there to see what they can find. And the Fourth Amendment 10 doesn't authorize that. 11 a lark and see -- you know, let's see if we can stir up in the 12 corporate -- 40 years of corporate records at ExxonMobil to see 13 if maybe somewhere in there there's a document we can use. 14 It doesn't authorize them to go out on And that would just -- that would be even without 15 this press conference, even without the press. 16 when you hear -- so when you hear what was -- 17 THE COURT: 18 MR. ANDERSON: 19 The problem is Do you want me to hear some more? Actually -- well, you know, Judge, we have a bit more, but not to hear, just to read. 20 THE COURT: All right. 21 MR. ANDERSON: Also present was the New York Attorney 22 General. 23 clear up this confusion, confusion about policy. 24 25 And he was sounding similar themes about the need to Again, this is called -- you know, the First Amendment calls this debate, disagreement, free exchange of Todd Anderson, RMR, CRR App. 083 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 30 Page 31 of 107 PageID 4264 1 ideas. What he's talking about is cleaning up confusion, 2 stepping into the breach of federal inaction, going after the 3 morally and vacant forces -- I think they're talking about 4 us -- that are trying to block Federal Government action, and 5 talking about an unprecedented level of commitment and 6 coordination. 7 THE COURT: I guess one of the things that really 8 concerns me looking at all those attorney generals, I don't 9 recognize them personally, but they're all from the Northeast, 10 correct? 11 12 MR. ANDERSON: there. Does that -- does that count as the Northeast? 13 THE COURT: 14 MR. ANDERSON: 15 THE COURT: 16 17 Your Honor, I think Maryland is in Yes. Yes, it does. And, of course, the Virgin Islands. Well, and the Virgin Islands are a different animal, but they are what they are. I guess my concern is, is that you've got a group of 18 very bright, well-meaning, thoughtful folks in the Northeast 19 obviously disagreeing with, I think, bright, thoughtful, 20 careful people in the Southeast and the Southwest. 21 You know, it's a -- it's an interesting -- it's an 22 interesting precedent. I guess someday we'll end up with much 23 smarter folks at the Supreme Court to try to decide that. 24 you know, it's just one of those things that are really sad. 25 guess I would rather have geniuses and scientists deciding this Todd Anderson, RMR, CRR App. 084 (214) 753-2170 But, I Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 32 of 107 PageID 4265 31 1 versus a generalist in Dallas, Texas. But it is what it is. 2 And it's just -- it's just difficult. That's a very difficult 3 thing to see. 4 5 There's not one southern attorney general on this, is there? Not one, correct? 6 7 MR. ANDERSON: THE COURT: And no producing states attorney generals are on this, correct? 10 11 None of those people are producing. MR. ANDERSON: THE COURT: 13 MR. ANDERSON: 14 THE COURT: Is Virginia there? Virginia. Yeah. How much drilling happens in Virginia? 16 MR. ANDERSON: 17 THE COURT: 18 Judge, in the coalition there is Virginia as well, just to be clear. 12 15 Yeah. I just want to be clear, Judge. Let me tell you, you can count those rigs on one hand. 19 Is Pennsylvania there? 20 MR. ANDERSON: 21 22 And, in fact, the southern -- 8 9 Correct. Pennsylvania was not -- you know, Judge, I have this -- have this on a binder. THE COURT: Pennsylvania is not going to be there. I 23 don't have to look. Pennsylvania is not going to be there. 24 They drill the heck out of Pennsylvania, because it goes right 25 up to the border -- I mean not the border but the state line Todd Anderson, RMR, CRR App. 085 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 with New York. 2 They drill right on the state line. It's very interesting when you look at the study of 3 that. 4 Pennsylvania people are sucking the heck out of the oil 5 underneath New York. I mean, it just goes right up to it. I mean, they are. 6 But, anyway, go ahead. 7 MR. ANDERSON: 8 THE COURT: 9 So those Just the way it is. Well, it must be busy -- I'm just saying that is a very -- it's problematic or it's not problematic. And I guess I don't -- I 10 mean, doesn't it concern y'all if we're kind of getting a us 11 and them kind of a thing? 12 32 Page 33 of 107 PageID 4266 MR. ANDERSON: I hate that. Oh, Judge, absolutely. We'd prefer 13 not to be here. 14 But it is -- it is one of these regional disputes that is 15 essentially political where one side is attempting to use law 16 enforcement power to silence the other side. 17 18 19 We'd prefer not to be in the middle of this. And just to answer your question about Pennsylvania -THE COURT: No, the real answer is -- and I'm going 20 to ask them. 21 has underneath its state, would you take the same position? 22 course, I know the answer is going to be "yes." 23 saying, think about that. 24 25 If you had oil underneath your state like Texas Of And I'm just Is that really -- I mean, mercy, we could drill under this courthouse probably and find gas or oil in Texas. Todd Anderson, RMR, CRR It's App. 086 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 34 of 107 PageID 4267 1 just -- that's just the way the Earth was made. 2 Shale actually comes even over here. 3 4 33 The Barnett But, anyway, just a curious -- I'm just curious about that. 5 Go ahead. 6 MR. ANDERSON: It's a valid point, Judge. And, in 7 fact, if you think about it, it would be something like -- you 8 know, we have Al Gore up here. 9 this press conference. He's not an AG, but he was at What he's known for is two things: 10 climate change activism and investing in companies that are 11 developing alternative sources of fuel. 12 13 THE COURT: And creating Al Jazeera, or selling his company to Al Jazeera. 14 But go ahead. 15 MR. ANDERSON: Right. Well, Judge, no one is 16 criticizing -- if what you're saying -- I think you're onto 17 something here when you say that. 18 If this became a regional type dispute -- he says a 19 lot of things about the dire consequences of climate change and 20 the need to adopt renewables and how renewables are the only 21 solution. 22 interests. 23 could see the attorneys general and producing states 24 investigating him. 25 Now, of course, that affects his financial And you could see if this were to escalate, you And so you could see how this type of thing -- if the Todd Anderson, RMR, CRR App. 087 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 35 of 107 PageID 4268 34 1 Defendant is right that it's appropriate to drop subpoenas on 2 people and entities that disagree with you on politics, then 3 you could just see how this snowballs, because for as many 4 states that are on one side of the issue, you have an equal 5 number on the other side of the issue. 6 same power to issue subpoenas that go outside of their states. 7 And they all have the And that's why what we're doing today is just so 8 important, Judge, because you are right that this is a 9 troubling -- and you can see it in the way that this whole 10 enterprise drew this swift criticism from the state attorney 11 generals in producing states and elsewhere. 12 13 THE COURT: Why didn't you bring in the State of Texas and other states on your side? 14 MR. ANDERSON: 15 THE COURT: 16 MR. ANDERSON: 17 THE COURT: 18 MR. ANDERSON: 19 20 question. Bring them in? Yeah. Why didn't you bring them in? You mean as parties? Yeah. Well, you know, Judge, it's a good They filed an amicus -THE COURT: This is an innovative -- this is a very 21 innovative, unique kind of sort of thing. 22 you thought outside the box, I kind of would have -- I mean, if 23 I had a state on my team, I think I would like it. 24 just -- you're telling me this is all political. 25 think I would bring in some political animals. Todd Anderson, RMR, CRR I'm just saying if I mean, I If it is, I It's your App. 088 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. ANDERSON: THE COURT: Yeah, I know. Okay. 7 MR. ANDERSON: Go ahead. Well, Judge, the litigation is proceeding, and people are hearing -- 9 10 They filed amicus briefs. But I'm saying as -- you know, whatever. 6 8 Well, Judge, we do have 11 states on our side. 4 5 35 business, not mine. 2 3 Page 36 of 107 PageID 4269 THE COURT: Who knows what will happen after that? I know. 11 MR. ANDERSON: Right. I mean, look, this was an 12 unprecedented filing. I mean, this is not just one. Eleven 13 state attorneys general are saying we're law enforcement, these 14 are our powers, we know the proper use, we know the improper 15 use, and what Massachusetts is doing is wrong. 16 These are some of the statements in the brief: 17 That law enforcement power doesn't include the right 18 to engage in unrestrained investigative excursions to 19 promulgate a social ideology, or chill the expression of points 20 of view. 21 Using law enforcement to resolve a public policy 22 debate undermines the trust in the offices -- undermines the 23 trust in offices of state AG's and threatens free speech. 24 25 Silencing Exxon not only harms ExxonMobil, it harms those who want to hear the views that are expressed by Todd Anderson, RMR, CRR App. 089 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 Page 37 of 107 PageID 4270 36 ExxonMobil. And probably most -- most hard-hitting, Judge, is the 3 way they conclude, is that, you know, our history is embroiled 4 with examples where legitimate exercise of law enforcement is 5 soiled with political ends rather than legal ones, and 6 Massachusetts seeks to repeat that unfortunate history. 7 They might not be parties -- I mean, they might not 8 be parties yet, but this statement speaks -- it sends a loud 9 message about where their views are and the threat that they 10 perceive to not only their -- you know, their institution and 11 the public confidence in their institutions but also to the 12 free exchange of ideas on this matter. 13 THE COURT: You know, when you're looking at law 14 enforcement, it's always troubling. 15 that's troubling that could be used. 16 was attacked for making political phone calls from the White 17 House, was that an overreach? 18 eventually that was all thrown out. 19 I'll give you another law For example, when Al Gore Is that similar to this? And Are those the sort of things that, you know -- or 20 using RICO in political efforts that go after political -- 21 whether it's by Republicans or Democrats or Whigs or whoever is 22 doing it, is that too much? 23 I mean, are we using -- are we going too far? I 24 don't know. I guess that's something -- all of these are 25 questions, I guess, for you and the other side, so I wanted to Todd Anderson, RMR, CRR App. 090 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 38 of 107 PageID 4271 37 warn them. 2 You know, it's -- the power of Government, and I 3 would say especially in criminal cases, is always -- needs to 4 be checked. It can't be unfettered. 5 unfettered. Is this one that has gone too far? 6 what they're saying. 7 And that's Is that what you're saying? MR. ANDERSON: Yeah. 8 instinct here is exactly right. 9 wrong side of that line. 10 I mean, it can't be Absolutely, Judge. Your This is -- this is on the The law enforcement -- and no one up here is saying 11 that law enforcement can't issue subpoenas to investigate 12 crimes, that the proper use of law enforcement authority isn't 13 important and appropriate. 14 attorneys general recognize that. 15 recognize that. 16 We recognize that. These 11 state Among all, they would But what we're saying is that -- THE COURT: You're saying this ought to be done in 17 legislatures and Congress and -- 18 MR. ANDERSON: 19 THE COURT: 20 MR. ANDERSON: Exactly. -- all those places? Exactly. And that's what they're -- 21 and they recognize that. And that's what they're complaining 22 about. 23 because some of the northeastern states don't agree with some 24 of the southeastern states about how to resolve this conflict. 25 And to them, that is not acceptable. What they say is, oh, there is gridlock in Washington Todd Anderson, RMR, CRR To them, they're saying App. 091 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 39 of 107 PageID 4272 38 1 what we need to do is change the focus of the debate and take 2 it out of Congress where things aren't happening and put it in 3 states -- the attorney generals' offices to start issuing 4 subpoenas on those who disagree with us so that the policy we 5 like gets enacted, because the people who are saying that it 6 shouldn't be enacted are terrified of getting these subpoenas 7 in the mail asking for 40 years of records so that the 8 investigators can search through those records and find 9 something, really anything that they can find in there, so they 10 can start to piece together some type of case. 11 And, meanwhile, while you're responding, you've got 12 that sword of Damocles dangling over you. 13 going to drop? It this -- you know, what can we say to appease 14 the regulator? And that's exactly -- Judge, and that's exactly 15 the plan here. 16 You know, is it You know, let me back up just a second, because, you 17 know, at this meeting back in March before they got out there 18 and had their press conference -- and one of the things that -- 19 you know, of the things that they tried to conceal is that 20 they had a meeting -- 21 THE COURT: 22 MR. ANDERSON: 23 THE COURT: 24 MR. ANDERSON: 25 Is this all in the booklet you gave me? Yeah. Okay. Yes, Judge. I could direct you to the -- Todd Anderson, RMR, CRR App. 092 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 THE COURT: "Yeah"? 39 This is federal court. "Yeah" is not acceptable even in the South, okay? 3 4 "Yeah"? Page 40 of 107 PageID 4273 MR. ANDERSON: Sorry, Judge. It's page 13 of the presentation. 5 THE COURT: Yes, sir. 6 MR. ANDERSON: Yes, sir, I can see it. And what we see here is that, you 7 know, before they came out on the stage in the clips that we 8 just saw -- 9 THE COURT: 10 Yes, sir. MR. ANDERSON: -- they had this meeting with two 11 people, Peter Frumhoff of the Union of Concerned Scientists, 12 and Matthew Pawa, who's a climate change attorney. 13 ExxonMobil before over climate change, and a judge threw out 14 the case and said this is what you should be taking to -- this 15 is what you should be taking to Congress, not to the courts. 16 He sued Anyway, they had a meeting where they met with these 17 men. This was not in public. 18 know what -- we don't know exactly what was said, but we know 19 what these two men believe. 20 theory back in 2012 that if they could persuade a single 21 sympathetic state attorney general to go issue a subpoena and 22 get some documents, they could then use those documents -- 23 THE COURT: 24 MR. ANDERSON: 25 Wait. This wasn't recorded. We don't We know that they pioneered this You used the tobacco example. That's right, Judge. They see that you can see the power of state prosecutors to get lots of Todd Anderson, RMR, CRR App. 093 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 41 of 107 PageID 4274 40 1 records and then see if you can pressure the companies once you 2 get those records -- well, first of all, maybe into a 3 settlement or something like that, but that's not even what 4 he's talking about. 5 pressure on the industry that could eventually lead to its 6 support for legislative and regulatory responses to global 7 warming. 8 9 10 11 What he's talking about is putting THE COURT: What do they really want out of y'all, other than your documents? want? What do they want? What do you What do they want? MR. ANDERSON: I think they want ExxonMobil to get on 12 their train. 13 they favor, including a shift to renewables, or to be quiet. 14 They might settle for that. 15 They want ExxonMobil to support the policies that They either want us to be quiet or to agree with 16 them, but to stop being on the side that they perceive as 17 wrong, to stop being on the side that's slowing down the 18 progress towards renewables that's sowing the confusion that 19 bothers them so much. 20 According to one of the attorneys general, I think it 21 was Schneiderman, the debate is settled, the debate is over. 22 And so what they would like ExxonMobil to do is to 23 stop speaking, stop presenting another point of view, and 24 either be quiet or support their position. 25 And this is laid out -- I mean, it's laid out in a Todd Anderson, RMR, CRR App. 094 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 42 of 107 PageID 4275 41 1 document about the goal here is not to protect consumers, it's 2 not to protect investors. 3 so that you can put pressure on the industry to change its 4 support for legislative and regulatory responses to global 5 warming. 6 record. 7 The goal is to get these documents I mean, it's well documented. It's in the public And you see also, Judge, I think -- I think my 8 clicker stopped. Oh, there it goes. You can see in the -- I 9 was describing this meeting before back in January. It's all 10 pursuant to this strategy that Matthew Pawa and others have 11 been cooking up about targeting ExxonMobil, delegitimizing them 12 as a political actor. 13 14 15 I mean, this is a movement that is being -- it's a playbook that's being created by Pawa and Frumhoff. And so it shouldn't come as a surprise that when a 16 Wall Street Journal reporter contacted Matthew Pawa and he was 17 concerned that that reporter might ask about whether he 18 attended that meeting in March with the Defendant and her 19 collaborators and Al Gore, he reached out to the Environmental 20 Bureau Chief at the New York Attorney General's Office saying, 21 what should I do? 22 the reporter, do not confirm that you attended or otherwise 23 discuss the event. And he wrote back, my ask is if you speak to 24 So they know. 25 THE COURT: They know this. I don't get that either. Todd Anderson, RMR, CRR I didn't App. 095 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 43 of 107 PageID 4276 1 make -- I mean, let's just have this fight out in the public, 2 it just seems to me. 3 clear how these fellows feel. 4 strongly about it, and they have strong feelings about it. 5 Okay. I mean, whatever. MR. ANDERSON: 7 THE COURT: They're scientists and feel I agree. I mean, they can say and do what they 8 want. 9 pressure y'all if they want to. I mean, and they can file lawsuits if they want and 10 Okay. All right. I don't know why they wouldn't confirm they were at the event. 12 MR. ANDERSON: 13 THE COURT: 14 I mean, it's pretty Nothing wrong with that, I don't think. 6 11 42 Well -- I mean, that doesn't make any sense, but anyway. 15 MR. ANDERSON: Well, Judge, I agree with you that 16 they are entitled under the First Amendment to have their 17 views. 18 here is the reason that they were trying to conceal the 19 involvement of these men is because they don't want the public 20 to know that this is political. 21 know that it's about pressuring ExxonMobil. 22 I think the reason -- I think what the evidence shows THE COURT: 23 don't know why. 24 stick to science. 25 They don't want the public to Yeah, I get it. I get all that. They're not good politicians. I just They need to No offense. But go ahead. Todd Anderson, RMR, CRR App. 096 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. ANDERSON: 2 THE COURT: Page 44 of 107 PageID 4277 Thank you, Judge. What I -- You're getting close to your time, so 3 tell me what else you really want me to -- this is a swift 4 review from the other AG's? 5 MR. ANDERSON: 6 THE COURT: 7 from. 43 We did that. Let me see all the states that they're Let me see them, all the states. 8 MR. ANDERSON: 9 THE COURT: 10 Alabama, Michigan. 11 cars. 12 Wisconsin. Texas -- Louisiana, Texas, South Carolina, Hmm. What's in Michigan? Arizona, Wisconsin. 13 Where they make Now, I don't know if they drill in Nebraska, Oklahoma, Utah, Nevada. Interesting. Kind of a -- are there any -- if we were going to 14 have red and blue states, all red states on your side, all blue 15 states on their side, that's kind of interesting, too, isn't 16 it? 17 MR. ANDERSON: 18 THE COURT: 19 22 23 24 25 I just hate this us and them thing, but it is what it is. 20 21 Well, I think under -- MR. ANDERSON: And, Judge, we hate it, too. And I think -THE COURT: Although Michigan might be a blue state. We don't know. MR. ANDERSON: Yeah, Wisconsin also might be one that goes back and forth, I know. Todd Anderson, RMR, CRR App. 097 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 45 of 107 PageID 4278 1 THE COURT: 2 MR. ANDERSON: 3 But, Judge, it does -- but it does highlight the You're right. Paul Ryan, I think, is from there. 4 points you're making, is that this isn't about consumer 5 protection versus consumer fraud or securities protection, 6 securities fraud. It's about politics. 7 THE COURT: 8 MR. ANDERSON: 9 THE COURT: 10 44 I get that. It's about -- You've made that point. Okay. What else? MR. ANDERSON: Here's the other thing I think you 11 really need to know, Judge, about this CID, is that it's -- in 12 its own request it tells you that this is about viewpoint 13 discrimination. 14 many requests, it lists out all the groups that it wants 15 ExxonMobil to produce its documents, its communications with. 16 It lists out all the groups -- in one of the And look at that group of 11. Every single one of 17 them, if you Google, you're going to find out that people in 18 the press deride these entities as climate deniers, like 19 Heritage, American Enterprise Institute, API, ALEC. 20 these are like the boogie man. 21 THE COURT: 22 MR. ANDERSON: I get that point. All of I get that. The next thing is, look at some of the 23 statements that the CID wants to investigate. 24 statements that we were talking about at the beginning about 25 energy rationing. Todd Anderson, RMR, CRR These are policy App. 098 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 46 of 107 PageID 4279 45 You mentioned before that China and India would have 2 to get onboard to limit CO2. Well, that was part of what the 3 former chairman discussed at the World Petroleum Conference in 4 China, that they would have to resort to energy rationing and 5 in another statement by the current chairman about adaptation 6 to change, about it's an engineering problem with engineering 7 solutions and that issues such as global poverty might be more 8 pressing than climate change. 9 development which requires energy and maintaining a certain So policy tradeoff between 10 level of CO2 that might require less, that's not fraud. 11 a policy question. 12 want to know why ExxonMobil was saying it. 13 And they want to investigate this? And here's another great example. That's They This is in their 14 subpoena. 15 growth requires more accessible, reliable, and affordable 16 energy to fuel that growth, and it's vulnerable populations who 17 would suffer most should that growth be artificially 18 constrained. 19 They want to know why we said that the level of GDP That's fraud? That's policy. That's a question about tradeoff that everyone 20 recognizes between limiting CO2 emissions and restricting 21 energy production and the growth that comes with it. 22 exactly what society is dealing with. That's 23 And so, Judge, we went through this before. 24 encourage you, if you want to see it, the presentation has the 25 detail. Todd Anderson, RMR, CRR And I App. 099 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 THE COURT: So you're saying four years is really the max of what they should be able to get? 3 MR. ANDERSON: 4 THE COURT: 5 you're arguing, I know, but four years is what it should be? MR. ANDERSON: 7 THE COURT: 9 Well, yeah. They shouldn't get anything is what 6 8 46 Page 47 of 107 PageID 4280 Yeah. It -- Because that's it. That's the statute of limitations. MR. ANDERSON: The statute of limitations said we had 10 to do something in the last four years in Massachusetts with 11 consumers or investors that would give rise to the claims. 12 so we've asked repeatedly what have we done. 13 everything we're seeing takes us back to 1976, '76, '97. 14 mean, these go back far into the past to find the documents 15 that they don't like generally about public policy. 16 you read what they're looking for: 17 communications about climate change, regulation of methane gas. 18 And Because I And then a policy, the design, Again, for the last decade we've been saying climate 19 change is a serious issue. We don't do anything in 20 Massachusetts that would give rise to these claims in the last 21 four years and even beyond. 22 about has nothing to do with Massachusetts. 23 about our statements in China, our statements at a Council on 24 Foreign Relations meeting in New York, here in Dallas, our 25 statements in England. And yet what they want to know Todd Anderson, RMR, CRR They want to know App. 100 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 48 of 107 PageID 4281 47 And then, Judge, you know, this one we obviously 2 don't have time to do in the courtroom, but the idea that based 3 on their review of these five documents from the '80s that 4 ExxonMobil knew in 1982 that the mitigation of greenhouse 5 effect would require major reductions in fossil fuel 6 combustion, that's what they say? 7 they say supports it? 8 9 Look at this. This is the document that Currently no unambiguous scientific evidence. 10 The relative contribution of each is uncertain. 11 Considerable uncertainty about whether these effects 12 13 14 should occur. Making significant changes in energy consumption patterns now would be premature. 15 These key points need better definition. 16 Uncertainties. 17 18 Further study is necessary. Monitoring is necessary before any specific actions are taken. This is called pretext. The fact that they are 19 grasping at straws to justify their investigation tells you it 20 didn't come from the right place. 21 come out of the right place. 22 revealed in the press conference when they told you and then 23 when they put it in their common interest agreement. 24 25 THE COURT: these documents? This investigation didn't It came out of the place that was What do you mean it didn't come out of What are you saying? Todd Anderson, RMR, CRR App. 101 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. ANDERSON: 2 THE COURT: 3 MR. ANDERSON: Page 49 of 107 PageID 4282 48 This is the pretext for it. I get it. The real purpose is to silence -- I 4 mean, it says it in the common interest agreement. It says 5 we're doing two things here, this coalition of state attorney 6 generals, we're limiting climate change and we're ensuring the 7 dissemination of accurate information about climate change. 8 They memorialized it in their agreement. 9 THE COURT: Is that it? 10 MR. ANDERSON: 11 THE COURT: 12 MR. ANDERSON: Yes, Judge. No, no. Give me your last shot. All right. Judge, look, again, if 13 this case were about a challenge to legitimate exercise of law 14 enforcement power -- because we see that a lot in their briefs: 15 It is routine, this is normal, they get to issue subpoenas. 16 No one is saying that's not true. No one is saying 17 that the Massachusetts Attorney General can't issue subpoenas. 18 No one is saying that she can't make appropriate comments about 19 her priorities so if fighting drug dealers is a priority and 20 she wants to hold a press conference saying, I'm putting 40 21 assistants on a drug enforcement task force and they're going 22 to handle that today, no one is saying that's inappropriate. 23 But that's not what this case is about, and if it were, we 24 wouldn't have the support from the 11 state attorneys general. 25 What we are saying and what those state attorneys Todd Anderson, RMR, CRR App. 102 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 50 of 107 PageID 4283 49 1 general are saying and so many others are saying is that it's 2 objectionable to use law enforcement tools to silence political 3 opponents. 4 And when states engage in this conduct, when they 5 misuse their power to violate the First Amendment rights of 6 others, of citizens, that's when Federal courts come in. 7 so we're asking you to issue a preliminary injunction 8 preventing this activity from continuing. 9 THE COURT: And Okay. 10 MR. ANDERSON: 11 THE COURT: Thank you. 12 All right. And so who's going to make the argument? 13 MR. JOHNSTON: 14 Thanks, Judge. Your Honor, my name is Richard Johnston. 15 THE COURT: Okay. Good to see you, Mr. Johnston. 16 MR. JOHNSTON: 17 Your Honor, I know you're going to have a lot of Thank you very much. 18 questions for me because you've already telegraphed them, but I 19 would appreciate it if I could just spend a couple of minutes 20 explaining to you a couple of things about why I think it's 21 inappropriate for the Court to be considering preliminary 22 injunction at this time. 23 THE COURT: 24 MR. JOHNSTON: 25 Sure. Mr. Anderson has been very passionate and eloquent about his position, but all of that eloquence and Todd Anderson, RMR, CRR App. 103 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 51 of 107 PageID 4284 50 1 passion doesn't really make up for the fact that he has a fatal 2 defect in his case, that there's no irreparable harm sitting 3 here today that should cause Your Honor to interfere with an 4 ongoing legal proceeding in Massachusetts between the same 5 parties on the same issues or to interfere with the efforts of 6 an attorney general from another state to investigate what it 7 considers potential wrongdoing. 8 9 As Exxon has indicated in its own papers, for it to get an injunction, it needs to show imminent harm. But there 10 isn't any imminent harm because the Attorney General has no 11 ability to enforce its CID on her own. 12 In order for the Attorney General to be able to 13 enforce a CID, she needs the approval, once there is a 14 challenge by a recipient, of the Superior Court in 15 Massachusetts. 16 an appeal in the Massachusetts courts. 17 And then the recipient has the ability to seek So as Your Honor knows from the papers, I believe, 18 Exxon filed an almost identical proceeding in Massachusetts the 19 day after it filed here, and that case is proceeding on the 20 normal course of things. We have filed an initial brief. 21 Exxon has filed a brief. We have another brief due in three 22 weeks. 23 Afterwards there will be a hearing in Massachusetts. In the meantime, there's absolutely nothing that we 24 as an attorney general can do to force Exxon to comply with the 25 CID. For example, Exxon has not produced one document to us. Todd Anderson, RMR, CRR App. 104 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: Page 52 of 107 PageID 4285 So regardless of how I rule here, one of 2 your state superior judges may do something different? 3 regardless of what I do, they'll do something different. 4 5 51 MR. JOHNSTON: I mean, Well, the Judge in Superior Court is going to do something. 6 THE COURT: Yeah, but it can't be exactly the same as 7 what I do, unless he goes, oh, that Kinkeade is a smart judge, 8 I'm going to do what he -- that never happens. 9 independent to do that as judges, so -- 10 Who's going to win that fight? 11 MR. JOHNSTON: We're too Well, my point is, Your Honor, that 12 you should take a look at how the Massachusetts CID statute is 13 set up. 14 THE COURT: Okay. 15 MR. JOHNSTON: Okay. Because the statute provides 16 very precise rights and remedies for above Exxon and above the 17 Attorney General, and we have been following that very 18 prescribed procedure in Massachusetts state court. 19 20 21 22 We have some slides that I would like to refer Your Honor to. THE COURT: Okay. Is your time up now when I can start blasting you with questions? 23 MR. JOHNSTON: 24 THE COURT: 25 MR. JOHNSTON: No. You're not ready yet? No. Todd Anderson, RMR, CRR App. 105 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: 2 MR. JOHNSTON: 3 Okay. Page 53 of 107 PageID 4286 52 Tell me when. I want to get into a few procedural things so you understand the context. 4 THE COURT: Okay. 5 MR. JOHNSTON: And also I want to talk a little bit 6 about Your Honor's lack of jurisdiction over the Massachusetts 7 Attorney General, and then I'm all yours. 8 9 THE COURT: Okay. I kind of felt that lack of jurisdiction might come up at some point. 10 MR. JOHNSTON: Well, you wouldn't -- 11 THE COURT: 12 think everything is in Texas. 13 I mean, you know, actually the Northern District of Texas is 14 larger than all of New England. 15 that. 16 Northern District of Texas. 17 here. Although, you know, in Texas we kind of I don't know if y'all know that. I didn't know if you know But, I mean, you could put all of New England in the 18 MR. JOHNSTON: We have three other districts in Yeah, we had a debate this morning how 19 many Massachusetts would fit in Texas on the way over to the 20 courthouse. 21 closer to 20. 22 23 THE COURT: I thought it was probably Yeah, probably -- I don't know. I would have to look -- I'll have to look at it and see. 24 25 Some people said five. But, anyway, a jurisdictional question is key and critical. And then I'm curious -- Todd Anderson, RMR, CRR App. 106 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 MR. JOHNSTON: Page 54 of 107 PageID 4287 53 And I'm going to get to that, but could I just explain the Massachusetts procedure? 3 THE COURT: Sure. 4 MR. JOHNSTON: Yes, sir. First we start with Chapter 93A, which 5 is our consumer protection statute, which provides in one of 6 its sections that the Attorney General can investigate also 7 violations with the consumer protection statute, which applies 8 to consumers and investors through the issuance of a civil 9 investigative demand. 10 Section 7 of that statute says that the recipient 11 must comply with the terms thereof unless otherwise provided by 12 the order of a court of the commonwealth. 13 Now, I know Texas is the Lone Star state. 14 commonwealth of Massachusetts. 15 Massachusetts. 16 We're the So that means us, Now, there's another provision, Section 6.7, which 17 provides that at any time before the date specified in the 18 notice, or 21 days, the Court can extend the reporting date or 19 modify or set aside such demand or grant a protective order, in 20 accordance with Rule 26(c) of the Massachusetts Rules of Civil 21 Procedure. 22 And what the Attorney General did when it sent out 23 the CID to Exxon was to tell Exxon, by the way, you have rights 24 to challenge this. 25 the production date or within 21 days in the appropriate court And it says, you can make a motion prior to Todd Anderson, RMR, CRR App. 107 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 55 of 107 PageID 4288 1 of law to modify or set aside this CID. 2 burdensome, you can call us. And if it's 3 In any event, that's exactly what Exxon -- 4 THE COURT: 5 You didn't really expect that call to come in, did you? 6 MR. JOHNSTON: 7 THE COURT: 8 9 Right, right. MR. JOHNSTON: we sent out the CID. 11 THE COURT: 14 THE COURT: 17 MR. JOHNSTON: MR. JOHNSTON: 23 Okay. We certainly knew -- Yes, we expected that there would be some resistance. 19 22 Yes. going to do that until you say yes. THE COURT: 21 Well, we certainly expected that when I'm going to cross-examine you, and I'm 18 20 I mean, you kind of The answer is yes. MR. JOHNSTON: 16 Okay. I'm going to ask you this again. 13 15 We didn't get the call. knew you were starting a firestorm, didn't you? 10 12 54 Some resistance? Well -- well, let me just say it this way, Your Honor. THE COURT: You thought Exxon would kind of go, hey, it's okay? MR. JOHNSTON: Well, in fact, Your Honor, you raised 24 a good point, because about six months -- no -- four months 25 before we sent out our CID, the State of New York Attorney Todd Anderson, RMR, CRR App. 108 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 56 of 107 PageID 4289 1 General, Mr. Schneiderman, sent a CID to Exxon. 2 we know, Exxon never submitted any written objection to it, 3 never submitted any legal challenge, and has produced 700,000 4 pages of documents or more to the New York AG. 5 6 7 8 9 10 11 12 THE COURT: And as far as So they're working with them and not with you? MR. JOHNSTON: Yes, that's true, or what we understand to be true. THE COURT: Why don't you just work with Schneiderman? MR. JOHNSTON: Well, because under -- as I understand it, New York rules, Schneiderman can't release -- 13 THE COURT: 14 MR. JOHNSTON: He can't share? -- those documents with us without the 15 consent of Exxon. 16 we get with other people unless Exxon were to agree. Just as in our CID law, we can't share what 17 THE COURT: 18 MR. JOHNSTON: Okay. So what they did was within the 21-day 19 period they filed a lawsuit or a motion in Suffolk Superior 20 Court which said they wanted to set aside or modify the CID. 21 55 And we will show you in a moment the table of 22 contents from their brief that they filed with Massachusetts 23 Superior Court which lists essentially all the issues that they 24 have raised here. 25 speech rights, they're a victim by us -- You know, it's a violation of their free Todd Anderson, RMR, CRR App. 109 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: 2 MR. JOHNSTON: 3 Page 57 of 107 PageID 4290 56 Right. -- et cetera, bad faith. So they raised all those issues in Massachusetts. 4 Then what we did, which is what the statute 5 prescribes for us, is that we can file a motion to confirm the 6 CID and enforce it. 7 petition for an order of such court for the enforcement of this 8 section and section six. 9 We can file in the Superior Court a That's what we did. We filed a cross motion in 10 Exxon's paper -- in Exxon's case seeking to have the Court 11 enforce the CID. 12 And that is where things stand. As I said, each of the two parties have filed a 13 brief. 14 the 11th, at which point the whole case will be fully briefed 15 in Massachusetts. 16 We have briefs that are due in three weeks, on October And as I said, until a court does something there, as 17 a practical matter there isn't anything we can do. You know, 18 we can't bang down the doors at Exxon and say, give us those 19 documents. 20 We can't say that they can't sell Exxon gasoline in 21 Massachusetts until a court in Massachusetts tells us that we 22 can. We can't send the sheriff out to collect a witness. 23 So for that matter alone, Your Honor -- 24 THE COURT: 25 MR. JOHNSTON: Is that what you're seeking? No, we're not seeking any of that, in Todd Anderson, RMR, CRR App. 110 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 terms of shutting Exxon down. 2 THE COURT: 3 6 7 8 9 10 11 12 13 57 What we will be seeking from -- Except in Massachusetts? You don't want them to sell gasoline there? 4 5 Page 58 of 107 PageID 4291 MR. JOHNSTON: all. No, I said we are not seeking that at I was just telling -THE COURT: No, you just said that earlier. You said, we haven't done this, haven't done that, but -MR. JOHNSTON: I said we couldn't. In the absence of a court order, we couldn't go out and do any of those things. THE COURT: Until. Until. I'm just saying, some day down the road that's what you would like? MR. JOHNSTON: No, that's not what we're looking for. What we want are documents and witnesses. 14 Now -- 15 THE COURT: 16 MR. JOHNSTON: Okay. -- given the fact, Your Honor, that we 17 can't do anything on our own, there's no need for you today to 18 say we want to enjoin the Attorney General from doing anything, 19 because we can't. 20 But beyond that, there's no irreparable harm, because 21 as Your Honor knows, if there's an adequate remedy at law, 22 there's no reason for a court to grant an injunction. 23 there's no irreparable harm, because they have a full-blown 24 statutory remedy in Massachusetts to deal with whatever their 25 objections are. Here They've raised their objections fully. Todd Anderson, RMR, CRR They App. 111 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 can argue all of them. 2 THE COURT: 3 MR. JOHNSTON: 4 58 So -- Have they argued jurisdiction? They certainly are arguing no jurisdiction over them in Massachusetts. 5 THE COURT: 6 MR. JOHNSTON: 7 THE COURT: 8 Page 59 of 107 PageID 4292 The same argument you're making here? Correct. They don't have jurisdiction over you, and you don't have jurisdiction over them? 9 MR. JOHNSTON: They are arguing that. A difference 10 is that in Massachusetts under their consumer protection 11 statute, Chapter 93A, they're free to come in and argue without 12 prejudice. 13 said, we're here to try to set aside the CID. 14 advised we don't think that Massachusetts has jurisdiction over 15 us, and that's one of our key arguments as to why the CID 16 shouldn't issue. 17 18 And they have argued without prejudice. THE COURT: right? MR. JOHNSTON: 20 THE COURT: 22 23 24 25 Please be In fact, that's their first argument, 19 21 They've It is their first argument. Right. And then that it's too broad, I guess, is one of their other big arguments. MR. JOHNSTON: Well, and they also say, it violates our First Amendment rights. So everything that you've heard from Mr. Anderson this morning, he or one of his colleagues will be arguing in Todd Anderson, RMR, CRR App. 112 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 60 of 107 PageID 4293 1 Massachusetts in a few weeks in the place where the statute 2 says it's supposed to be argued. 3 You also indicated -- 4 THE COURT: 59 We're glad still to have you down here. 5 Even if I don't have jurisdiction, I just want you to know, I'm 6 glad to have you here, and it's a very interesting case. 7 Y'all have done a great job as lawyers. I'm very interested in it. It's very 8 unique. And I appreciate -- I 9 don't want you to think that I don't appreciate the importance 10 of this, and I'm looking at that hard. 11 y'all -- it's a very unique effort, and I think that's what 12 lawyers should do. 13 MR. JOHNSTON: I really am. I think Well, I appreciate the very 14 open-minded way in which you're hearing all these issues this 15 morning. 16 I would like to get to my next point, which is why I 17 think that no matter how interested you may be in this and how 18 much fun this case may be at an intellectual level, the fact 19 is, Your Honor, with all due respect, we don't think you have 20 the jurisdiction to hear a case against the Attorney General of 21 Massachusetts. 22 So let me get on to that. Not only the U.S. Supreme Court, but the Fifth 23 Circuit in several cases and Your Honor yourself in the 2010 24 case of Saxton v. Faust -- 25 THE COURT: You're going to cite my own case? Todd Anderson, RMR, CRR App. 113 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 MR. JOHNSTON: Page 61 of 107 PageID 4294 I'm going to cite your own case, among others. 3 THE COURT: 4 MR. JOHNSTON: Wow. Man. How cruel. Among others. Go ahead. But Your Honor relied 5 on Fifth Circuit cases, which I'll talk about as well. 6 But what this series of cases has held quite 7 conclusively is that a federal court in one state should not 8 exercise jurisdiction over a state official in another state 9 simply because the impact that the plaintiff may be feeling 10 occurs in the forum state. 11 Exxon's really purported basis for being here and 12 asserting jurisdiction is the claim that Attorney General 13 Healey somehow committed a tort in Massachusetts by serving a 14 CID in Massachusetts on Exxon where Exxon has a registered 15 agent with the expectation that Exxon was going to have to 16 produce all these documents from Texas where its headquarters 17 is. 18 But as the cases I referred to in our brief, 19 including the Walden case from the Supreme Court, the Stroman 20 cases from the Fifth Circuit, which you relied on in your 21 Saxton case, and your Saxton case, that simply is not an 22 appropriate measure for gaining jurisdiction. 23 60 And I would like to cite some of the language in Your 24 Honor's own decision back from Saxton. 25 that case, quote, the only contacts with Texas alleged by the Todd Anderson, RMR, CRR You said in dismissing App. 114 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 62 of 107 PageID 4295 61 1 Saxtons are the effects felt of Judge Faust's rulings in Utah 2 state court, because this case involved a judge who had issued 3 a decision from Utah. 4 Circuit recently rejected the idea that a nonresident 5 government official may be haled into a Texas court simply 6 because the effects of a ruling are felt in Texas. 7 you cited Stroman versus Wercinski. 8 9 And then you went on to say, the Fifth And then And I will end the quote. Now, what had happened in Stroman upon which Your Honor was relying is that the Fifth Circuit had said that an 10 Arizona official who took regulatory action against a Texas 11 company that happened to have facilities in Arizona, as well as 12 a bunch of other states, couldn't be sued in Texas where the 13 only thing that had happened in Texas was that this company was 14 feeling the regulatory effects in Texas. 15 And the Supreme Court found the same thing in the 16 Walden case, which we cite in our brief, where a DEA agent at 17 an airport in Georgia fraudulently took some money off of 18 somebody who was going through the security system and then 19 filed a false affidavit, trying to seize the money. 20 And the person whose money was stolen tried to sue in 21 Nevada, and the Supreme Court said you can't do that because 22 the only effect upon -- the only thing that happened in Nevada 23 was that the people who lost the money had less money in Nevada 24 and felt the loss of that money there. 25 on the defendant's side in Georgia. Todd Anderson, RMR, CRR But everything happened And the defendant, not App. 115 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 Page 63 of 107 PageID 4296 62 having done anything in Nevada, couldn't be sued there. So let's apply that to Attorney General Healey's 3 situation. 4 She hasn't conducted any official business here. 5 the CID in Massachusetts, as I said, on the registered agent. 6 She's not alleged to have called upon the Texas Attorney 7 General or anyone else here in Texas to help her with the CID. 8 9 Now, she has no office or presence here in Texas. She served So this case really couldn't get too much closer to your decision in Saxton. We've got an official from an outside 10 state, one Utah, one Massachusetts. 11 one a judge's decision, one the issuance of a CID. 12 cases we have an outside state official who had nothing to do 13 with Texas. 14 We've got a state action, And in both Now, Exxon has cited to you not one case in which a 15 federal judge asserted jurisdiction over an out-of-state 16 attorney general where the attorney general had resisted 17 jurisdiction. 18 And we did find several decisions from other federal 19 district courts that found that a federal court could not 20 exercise jurisdiction over another state's attorney general. 21 And I would invite Your Honor's attention in 22 particular to a case that we cited in our reply brief, among 23 several others that we cited, and that's the case of Turner 24 versus Abbott in the DC -- in DC District Court where the court 25 refused jurisdiction over the Texas Attorney General where he Todd Anderson, RMR, CRR App. 116 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 63 Page 64 of 107 PageID 4297 1 had been sued by somebody who wanted to declare the Texas 2 foreclosure statute unconstitutional. 3 said that it was not appropriate to take jurisdiction over the 4 Texas AG. 5 And the Court simply Now, if Your Honor elects not to dismiss this case, 6 what's going to happen is that you will be opening up this 7 courthouse potentially to every disgruntled Texas business and 8 individual who feels slighted by some action whether it's a tax 9 or a law or something else undertaken in some other state and 10 11 they want to be able to sue here in their home state. Similarly, you open up the prospect, as the Fifth 12 Circuit referred to in the Stroman case, of every attorney 13 general in every state, as well as every other state official 14 in other states, are going to have to be subjected to the 15 possibility that they're going to be dragged across the country 16 every time they do something because one of their decisions 17 impacts somebody who lives in Oregon or Nevada or Texas. 18 the Fifth Circuit in Stroman said it wasn't going to take 19 jurisdiction in part to avoid that problem. 20 And And I would also refer Your Honor to the amicus brief 21 that was filed on our behalf in this case. 22 that that amicus brief was filed by 20 attorneys general. 23 you asked about who's on -- 24 THE COURT: 25 MR. JOHNSTON: And I would note Oh, you did get Alaska. We did get Alaska. Todd Anderson, RMR, CRR And I'm sorry. We got Virginia. App. 117 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 65 of 107 PageID 4298 64 We got Mississippi, as well as 17 other attorneys general. 2 And one of the things that they said in their 3 brief -- and I'll quote -- is the race to the federal 4 courthouse would also undermine the States' compelling interest 5 in protecting their citizens from fraudulent or deceptive 6 practices, by forcing state Attorneys General to defend 7 themselves against federal lawsuits filed all across the 8 country. 9 friction between the state and federal governments when The federal courts should not facilitate such 10 recipients of state law CIDs have an adequate state court 11 remedy available. 12 So I would suggest, Your Honor, that there just isn't 13 jurisdiction here. 14 Honor is familiar with the very prevalent concept of Younger 15 abstention. 16 from hearing a case when there was a pending state criminal 17 enforcement proceeding. 18 to civil enforcement proceedings as well. 19 courts have abstained from hearing cases involving parallel 20 state enforcement proceedings precisely because they need to 21 rely on the Younger abstention. 22 And even if there were jurisdiction, Your Younger held that a federal court should abstain And that principle was later extended And numerous federal And I'm going to refer you to one particular That's the case of Lupin 23 decision, because it involves a CID. 24 Pharmaceuticals versus Richards. 25 General of Alaska, and Lupin was a Maryland drug company, Todd Anderson, RMR, CRR Richards was the Attorney App. 118 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 66 of 107 PageID 4299 65 1 pharmaceutical company, that sued in federal court in Maryland 2 to block the Alaska Attorney General from enforcing a CID that 3 he'd issued in Alaska. And the court in Lupin said, quote, the Lupin 4 5 Plaintiffs have failed to demonstrate that they have no way of 6 vindicating their rights through the Alaska proceeding and, 7 thus, they have failed to show that the threatened harm 8 constitutes an irreparable injury for purposes of Younger. So I would suggest that based on the Lupin precedent, 9 10 as well as the larger abstention doctrine in Younger, even if 11 you had jurisdiction, given that there is an existing 12 Massachusetts proceeding, you should defer to that proceeding 13 and abstain. 14 I also would suggest, Your Honor, that the Plaintiffs 15 have to show they have a decent chance of substantial 16 likelihood of winning on the merits. 17 why I don't think that they're going to be able to do that. 18 And, again, it goes back to the CID statute under which we're 19 operating and the basis on which we brought this CID. 20 And let me explain to you First off, I would like to refer you to the statute 21 itself. The statute says that any person -- I'm sorry. I'll 22 talk a little bit about the statute itself. 23 says that anybody that commits an unfair business practice can 24 be subject to liability. 25 that we cited here that any person who fails to disclose to a The statute, 93A, Then it says that in the regulation Todd Anderson, RMR, CRR App. 119 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 67 of 107 PageID 4300 66 1 buyer or prospective buyer any fact, the disclosure of which 2 may have influenced the buyer or prospective buyer not to enter 3 into the transaction. 4 5 So, you know, that's a pretty broad statute and broad set of regulations. 6 The Attorney General has power under the CID statute 7 to issue a CID whenever he believes a person has engaged or is 8 engaging in any method, act, or practice declared to be 9 unlawful, including, of course, failing to make disclosures 10 that may have influenced a buyer or -- a buyer of a consumer 11 product or stock to make a different decision. 12 Now, it's important to recognize that the Attorney 13 General doesn't need to have probable cause, you know, doesn't 14 have to have substantial cause or substantial belief. 15 she needs to have a reasonable belief. 16 He or And one of the purposes of the CID statute which 17 allows the Attorney General to obtain information before 18 bringing suit is so that an Attorney General who has a belief 19 can conduct the investigation and then determine at the end of 20 the investigation whether he or she has enough to proceed with 21 a civil lawsuit or he or she doesn't, and -- 22 THE COURT: So your contention in Massachusetts is 23 that -- is that they lied and people wouldn't have bought their 24 stock? 25 MR. JOHNSTON: In general, that they would not Todd Anderson, RMR, CRR App. 120 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 68 of 107 PageID 4301 67 1 have -- they would not have bought the stock or may have made 2 other investment decisions if they knew the full extent of what 3 Exxon's scientists knew or that consumers may have made 4 different consumer choices. 5 Now, if there had been full disclosure of the full 6 extent of the impact of gasoline products on climate change and 7 on the environment, some consumers may have said, well, I think 8 I'm going to switch to electric cars or I'm going to take the 9 bus or I'm going to walk to work or I'm going to move so that I 10 don't have to commute every day, which in fact many people 11 these days are doing, so -- 12 THE COURT: 13 MR. JOHNSTON: 14 Massachusetts. Not in Texas. Maybe not, but certainly in I mean, we have a much smaller state. 15 THE COURT: 16 MR. JOHNSTON: 17 THE COURT: 18 MR. JOHNSTON: 19 walked to my office for 30 years. 20 21 THE COURT: Many -- All compacted up. Yeah. Right. Sure. I walk to work. Every day I have Yeah, move down here and see if that works out for you. 22 MR. JOHNSTON: 23 THE COURT: 24 MR. JOHNSTON: 25 THE COURT: It would be harder, I suspect. It would be harder, I'm just telling you. But -- It's just a different world. Todd Anderson, RMR, CRR App. 121 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. JOHNSTON: Page 69 of 107 PageID 4302 But there are other methods of 2 transportation, and also there are other things that could be 3 done to try to -- 4 THE COURT: 68 How many times have y'all used this 5 before, this very method of going against and using a CID to do 6 this? 7 8 MR. JOHNSTON: about 300 CIDs. 9 10 THE COURT: I didn't say all your CIDs. Like this, though, using this same theory. 11 12 We issued in the last three years MR. JOHNSTON: theory. We have used a number of CIDs for that Let me give you an example -- 13 THE COURT: Yeah, just give me an example. 14 MR. JOHNSTON: -- of one we just settled. And this 15 is one that I think you probably read about in the papers, 16 involving Volkswagen. 17 public, including consumers and regulators -- Volkswagen made representations to the 18 THE COURT: Involving diesel? 19 MR. JOHNSTON: 20 THE COURT: 21 MR. JOHNSTON: -- about the diesel emissions. And the switch? Right. And they knew based on what 22 their own engineers and scientists knew that their emissions 23 were different than what they were representing. 24 25 We issued a CID to Volkswagen, along with a bunch of other states, and the multi-state group recently announced a Todd Anderson, RMR, CRR App. 122 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 70 of 107 PageID 4303 69 1 rather substantial settlement with Volkswagen based in our case 2 on our unfair and deceptive trade practices statute, Chapter 3 93A. I mean, it's not an uncommon thing at all. 4 We also, Your Honor, recently settled a case with a 5 for-profit school where the for-profit school was making 6 certain claims about the graduation rates of people who had 7 taken out huge amounts of federal loans to go to school, and it 8 turned out the graduation rates were really minimal. 9 represented that there were all sorts of employers who were They 10 taking their graduates in, when in fact those employers weren't 11 taking their graduates in. 12 And we settled that case through a consent judgment 13 in which they admitted to not disclosing things to their 14 students that reflected what was really happening at the 15 school. 16 17 So this is a very common thing. Protection Division is a very busy division. 18 THE COURT: 19 MR. JOHNSTON: 20 THE COURT: 21 Okay. Okay. So you asked the question -- Are you going to answer any of my questions? 22 23 Our Consumer MR. JOHNSTON: Well, I'm going to answer the first question. 24 THE COURT: No, no, no. 25 MR. JOHNSTON: I'm done with you. Oh. Todd Anderson, RMR, CRR App. 123 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: 2 for a while. 3 asked earlier. 4 5 Page 71 of 107 PageID 4304 You've gone as far as you're going to go You're going to answer all those questions I MR. JOHNSTON: Well, the first one I think you asked Mr. Anderson was why Exxon, why did they pick on Exxon. 6 THE COURT: 7 MR. JOHNSTON: 8 obviously lots of oil companies. 9 featuring prominently now is because in November or so, late Yeah. Why? So can I answer that? There are The reason why Exxon is 10 last fall, two different periodicals, one the Los Angeles 11 Times, which, as you know, is a well-known metropolitan 12 newspaper, and the other, Inside Climate News, which was 13 nominated for a Pulitzer Prize for the articles that are 14 published, they published a series of articles. 15 are something like eight articles. 16 which you can read to understand where we derived our belief 17 from. 18 I think there They're all in our papers Those articles had gone and interviewed a whole bunch 19 of people from Exxon, and they had looked at a whole bunch of 20 Exxon documents, including at various repositories of Exxon 21 documents, and they had concluded that it looked as though 22 Exxon had not been forthcoming over the years with what its 23 scientists knew and concluded back when. 24 25 70 And what we have gleaned from those articles are at least the following. And this is gleaned from the articles as Todd Anderson, RMR, CRR App. 124 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 72 of 107 PageID 4305 1 well as having read the documents that the articles made 2 public. 3 So we read those articles and we read the documents, 4 and it appears to us as though the following is at least 5 evident from what we have read. 6 7 8 9 10 11 71 First, that Exxon knew that rising carbon dioxide emissions were causing global temperatures to increase. Second, that Exxon knew that certain levels of warming would likely cause very significant adverse impacts on natural resources or human populations. And third, that Exxon knew that using the products 12 that it sells, like oil and gas, were playing a significant 13 role in the CO2 emissions and warming and that sharp -- quote, 14 sharply curtailing those uses would help mitigate the risk of 15 climate change. 16 Now, the Attorney General said publicly before the 17 CID was issued -- and you heard a part of what she said at the 18 press conference -- that there was a disconnect between what 19 Exxon knew and what Exxon told investors and customers. 20 that was based on the review of those articles as well as our 21 own review of a bunch of documents. 22 And In addition, Attorney General Healey knew at the time 23 that she issued her CID that, as I mentioned earlier, Attorney 24 General Schneiderman from New York had already issued a CID, 25 and that Exxon -- for similar reasons, consumers and investors, Todd Anderson, RMR, CRR App. 125 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 73 of 107 PageID 4306 72 1 and that Exxon had produced a lot of documents in response. 2 Attorney General Healey also knew that there had been calls in 3 Congress for the DOJ to investigate Exxon. 4 Thus, you know, based on the statute in Massachusetts 5 of having a belief that there may be problems with 6 communications to investors and to consumers, she has a basis 7 for being able to issue the CID. 8 THE COURT: How can she go back more than four years? 9 MR. JOHNSTON: Well, let me explain it to you as we 10 see it. 11 as you know then, the same thing pretty much happened in the 12 tobacco cases. 13 the tobacco companies had committed RICO violations basically 14 starts out the opinion, as I recall it, with a discussion about 15 a meeting that took place -- and the decision of the DC circuit 16 was somewhere around 2009, I think. 17 And Your Honor alluded to the tobacco cases. I think In fact, the DC circuit case which found that Anyway, the DC circuit starts out the opinion by 18 saying this all began back in 1952 when the vice presidents or 19 executive vice presidents of each of the major tobacco 20 companies got together in a room and talked about the fact that 21 there were problems with the way tobacco might cause cancer, 22 and none of those companies were supposed to use any kind of 23 public pronouncements the fact that one of them was safer than 24 another cigarette, and went on to talk all about what the 25 tobacco companies' scientists knew, what they had seen in the Todd Anderson, RMR, CRR App. 126 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 74 of 107 PageID 4307 73 1 lab, and what they didn't tell consumers or regulators and, in 2 fact, denied there was any sort of problem for a long time. 3 So, you know, the fact is that there are a number of 4 means under Massachusetts law by which the Massachusetts courts 5 can hold somebody liable for things that happened a pretty long 6 time ago. 7 8 9 And let me discuss a couple of them. First, what somebody knew a while ago is relevant to whether they are saying something that's truthful now. I mean, for example, if, you know, you knew from 20 10 years ago that your brother stole something and it was somehow 11 relevant to a case today, the fact that you learned it 20 years 12 ago doesn't stop you from having the knowledge that your 13 brother stole something. 14 And the same thing here. If Exxon scientists were 15 telling Exxon back when all of our products are going to cause 16 a disaster for the environment, you know, the fact that Exxon 17 knew that then bears upon what they're telling people now. 18 The other three specific ways in which old documents 19 can be relevant and toll the statute -- or deal with the 20 statute of limitations are that there is a concept in 21 Massachusetts called continuing tort. 22 for a long time, you know, you can reach back to the beginning 23 of that time as opposed to just the last four years. 24 THE COURT: 25 allows you to go way beyond -- So if something goes on So basically the law in Massachusetts Todd Anderson, RMR, CRR App. 127 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. JOHNSTON: Page 75 of 107 PageID 4308 In some circumstances. 74 I'm not saying 2 in every circumstance. 3 it's a continuous string where this was going on for 30 or 40 4 years, the courts may say it's the string that we get, not just 5 the last piece of the string. 6 THE COURT: 7 MR. JOHNSTON: 8 9 But in some circumstance it is. So if I get it. The second concept is the tolling of the statute of limitations for discovery purposes. You know, if people don't know what Exxon was doing 10 and don't find it out until the L.A. Times or Inside Climate 11 News publishes all that stuff and then people start to look at 12 it, the courts can say, well, your trigger started when you 13 learned in those articles that Exxon may have been lying, not 14 four years ago. 15 know what Exxon scientists were doing. 16 How would you have known? Because you didn't And then the final theory is fraudulent concealment. 17 You know, if a company takes steps to conceal what it knew, the 18 courts will sometimes say, shame on you, we're not going to 19 apply the statute of limitations where you were taking active 20 steps to keep the plaintiffs from learning what you know that 21 they would have known if you hadn't been hiding it from them. 22 So it's for all of those reasons that we believe -- 23 THE COURT: 24 MR. JOHNSTON: 25 I get it. -- at this stage that we have the right to at least get the documents. Todd Anderson, RMR, CRR App. 128 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 76 of 107 PageID 4309 75 And make no mistake, Your Honor, we aren't saying 2 that today we're able to go into court and file a case against 3 Exxon for misrepresentation or violations of the consumer 4 protection law. 5 THE COURT: Or fraud or anything else. 6 MR. JOHNSTON: Or fraud or anything else. What we're 7 saying is, we have this statute which allows us to get 8 information before we have to make that decision. 9 saying to the courts -- we think it should be the Massachusetts 10 court -- but we're telling you, too, because we're here. 11 THE COURT: 12 MR. JOHNSTON: 13 THE COURT: 14 because you want to? 15 16 17 18 19 And we're You can do that based on nothing? Pardon me? You can do that based on nothing just MR. JOHNSTON: No. We have to have a belief based on something. THE COURT: documents. Those five documents. Those five That's it? MR. JOHNSTON: Well, we cited those documents, but -- 20 and, you know, if you would like to have a further analysis of 21 those documents, you know, I would invite my colleague, 22 Ms. Hoffer, who is chief of our Environmental Bureau, to deal 23 with those documents. 24 25 THE COURT: I'm just saying those are your -- those are your bases? Todd Anderson, RMR, CRR App. 129 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. JOHNSTON: Page 77 of 107 PageID 4310 Those are our principal documents 2 which we believe make out some of the points that we address. 3 But keep in mind, Your Honor -- 4 5 THE COURT: So what is the level? MR. JOHNSTON: We would have to satisfy the Rule 11 criteria. 8 THE COURT: 9 MR. JOHNSTON: 10 What's the level you've got to achieve to be able to do this? 6 7 us. Okay. I mean, that's -- that's the burden on And so we, as an attorney general's office, have been -- 11 THE COURT: I mean, you can't just go to any company 12 and say, we want all your stuff because we think you might be 13 doing some shenanigans. 14 MR. JOHNSTON: 15 76 No. We have to have a reasonable belief. 16 THE COURT: Right. 17 MR. JOHNSTON: 18 And Exxon has raised the issue of the Fourth That's the limit on us. 19 Amendment and how it's unreasonable and so forth. Well, I'll 20 say a couple of things about that. 21 recognized since at least the Morton Salt case by the Supreme 22 Court that governments, of course, have the right to obtain 23 documents as part of investigations from companies. 24 what investigations are. 25 are unreasonable, well, Exxon has every right in the world to One is the courts have long That's And to the extent that the requests Todd Anderson, RMR, CRR App. 130 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 Page 78 of 107 PageID 4311 77 object in a Massachusetts court to say they are unreasonable. As I mentioned, our CID statute says that it's 3 governed by Rule 26(c), so, you know, we have to basically 4 comply with the Rules of Civil Procedure with respect to what 5 documents we're entitled to get. 6 objections. 7 Massachusetts Superior Court, you know, we'll be hearing from 8 Exxon as to why this category of documents is no good and that 9 category of documents is no good. 10 They have raised these And, in fact, I suspect that when we're arguing in But most of the documents that we have requested have 11 dealt with either the scientific evidence that was referenced 12 in the articles that we read or backup for that, for what 13 people were doing with that research, and what Exxon was 14 telling investors, what Exxon was telling consumers, and what 15 sort of marketing strategies Exxon was developing in view of 16 the fact that it knew that it had this perceived problem with 17 respect to climate change. 18 THE COURT: So -- Maybe I'm -- maybe I'm wrong, but I think 19 he said, look, we agree there's climate change and that fossil 20 fuels obviously add to that and -- isn't that different than 21 Volkswagen hiding what they were doing so they could pass those 22 tests in your state and all the other states, particularly 23 California? 24 25 I mean, they're going to say, hey, that's a whole lot different. We're not hiding. We agree. Todd Anderson, RMR, CRR We agree with you App. 131 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 that this is a problem. 2 you see it, the science. 3 MR. JOHNSTON: 4 reviewed, Your Honor -- 5 THE COURT: 6 MR. JOHNSTON: 7 THE COURT: 8 9 10 Page 79 of 107 PageID 4312 78 We just didn't see it as developed as Well, from the documents that we have There are things that say -We think -- -- hey, we know it's all bad back in the '50s or '60s or whenever? MR. JOHNSTON: '60s, '70s, yes. And instead of telling the world, hey, we think 11 gasoline products are going to be having a catastrophic impact 12 on climate and one way to reduce that catastrophic effect would 13 be to sell less and use less gasoline, instead, you know, they 14 went on selling gasoline at the ordinary clip. 15 And, you know, if we're correct that we have the 16 right to go back that distance because of various extensions of 17 the statute of limitations, the fact that in 2010 they get 18 around to saying, oh, in our financial disclosures in a little 19 piece that says, oh, global warming is an issue that we have to 20 think about, you know, that's not the same as saying 30 years 21 ago we should be telling the world now what's happening. 22 THE COURT: 23 MR. JOHNSTON: 24 THE COURT: 25 I get it. Sure. I get it. Okay. What else did I cut you off that you really want to tell me? Todd Anderson, RMR, CRR App. 132 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. JOHNSTON: 2 THE COURT: Page 80 of 107 PageID 4313 79 Well, Your Honor -- You didn't answer my other questions, but 3 it's okay. It's all right. That's all right. 4 to decide that on my own without your benefit. I'll just have That's okay. 5 I always tell lawyers this is like stepping out into 6 the street and you have a gun and it was like the beginning of 7 Gunsmoke. 8 somebody shoots somebody and they're dead. 9 shot to make an argument in front of me. 10 You're probably too young to remember that. This is your only I will not call y'all back, so you better take your 11 shots, all I'm telling you. 12 I'm okay with that. 13 And MR. JOHNSTON: If you don't want to answer them, Well, I do know Gunsmoke, and James 14 Arness went to my high school. 15 THE COURT: And he also didn't pull the gun as fast 16 as the other guy, so every time he should have gotten shot in 17 the beginning of that show. 18 But, anyway, go ahead. 19 MR. JOHNSTON: Well, I remember that one of the 20 questions you posed to Mr. Anderson was, you know, why you? 21 Did you poke the bear? And I've explained why Exxon. 22 In terms of poking the bear -- 23 THE COURT: 24 25 They're the biggest. Of course that's why you went after them. MR. JOHNSTON: Well, we also have access to Exxon Todd Anderson, RMR, CRR App. 133 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 81 of 107 PageID 4314 documents. 2 THE COURT: 3 money. 4 agree? And they're pretty -- they make a lot of They're pretty effective at what they do, wouldn't you 5 MR. JOHNSTON: They are, according to their own 6 records, the largest publicly held oil and gas company in the 7 world. 8 9 10 THE COURT: And arguably the largest company in the world if we -- I don't know how we consider Apple and all those other companies, whether they're real or not. 11 MR. JOHNSTON: You will never get an argument out of 12 me that they are a big, big company. 13 company. They are a big, big They do business everywhere. 14 But in terms of poking the bear, I mean, I'm not 15 aware that Exxon went out of its way to do anything to the 16 Attorney General. 17 papers that Exxon is or was back in March of 2016 a political 18 opponent of the Attorney General. 19 had any particular presence in political elections or so on. I wasn't even aware until I read their I didn't think they made -- 20 You know, our CID was based on -- 21 THE COURT: 22 You're saying that very wryly like that doesn't happen. 23 MR. JOHNSTON: 24 THE COURT: 25 80 Well -- Like Al Gore wasn't freaking involved in all the politics that there could be of this. Todd Anderson, RMR, CRR Mercy, he's App. 134 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 front and center of this thing. 2 you say? 3 MR. JOHNSTON: Page 82 of 107 PageID 4315 He's the politician, wouldn't I didn't say that he wasn't. What I 4 said was, I wasn't aware that Exxon had done anything in 5 particular against Attorney General Healey. 6 7 THE COURT: Yeah, I understand that. But, you know, you can't deny that these are politicians involved in this. 8 MR. JOHNSTON: 9 THE COURT: 10 81 Well -- Doesn't -- your Attorney General is not appointed by the governor in Massachusetts. 11 MR. JOHNSTON: 12 THE COURT: 13 MR. JOHNSTON: 14 THE COURT: No, no. The attorney general -- She runs. -- runs for office. Right. 15 prior to this, correct? 16 MR. JOHNSTON: 17 THE COURT: 18 MR. JOHNSTON: And she has run for other offices No, she hasn't. This is her first time? Yeah. She's 44. In fact, there's 19 alleged in their papers some sort of conspiracy going back to 20 2012. 21 She had been a line attorney general until about a year before 22 the election, and then she stepped down and ran for Attorney 23 General. 24 25 I mean, she took office in 2015, was her first office. THE COURT: And I'm assuming well thought of or she wouldn't have got elected? Todd Anderson, RMR, CRR App. 135 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 MR. JOHNSTON: THE COURT: 4 Okay. 5 MR. JOHNSTON: MR. JOHNSTON: That's okay. That's all right. But, no, if they're burning issues to Your Honor, by all means, please ask me, because that's what I'm up here for. 11 13 I've probably forgotten what some of them are. 8 12 And I'm sure other states do, too. Are you going to answer my other ones? THE COURT: 10 I think that many people think well of Good. 7 9 THE COURT: Sorry, I only ask them once. I don't go back. MR. JOHNSTON: Yeah. Well, I have my notes that 14 you -- you asked about why just Exxon. 15 like tobacco. 16 THE COURT: 17 right, if this is successful? You asked is this case And it is going to go beyond Exxon, 18 MR. JOHNSTON: 19 THE COURT: 20 82 her in Massachusetts. 3 6 Page 83 of 107 PageID 4316 Well -- I mean, you don't think other companies were doing anything differently than they were, or do you? 21 MR. JOHNSTON: 22 Exxon, we may look other places. 23 place that we've started, because there appeared to be a basis 24 from published documents about Exxon. 25 THE COURT: Look, depending on what we find in But, you know, Exxon is the Oh, I get it. Todd Anderson, RMR, CRR I understand it. I App. 136 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 think -- I get why you did it. 2 other oil producers? 3 4 MR. JOHNSTON: Page 84 of 107 PageID 4317 But you're likely to go after Depends where this investigation leads us. 5 Let me respond to some other things that came up a 6 little bit earlier about the First Amendment and Exxon's 7 speech. 8 9 10 This is not -THE COURT: The bottom line is, you want to have the fight in Massachusetts, and you think that's the appropriate place, right? 11 12 MR. JOHNSTON: We certainly do think it's appropriate -- 13 THE COURT: 14 MR. JOHNSTON: 15 Right. -- because of the statutes and because of jurisdiction. 16 THE COURT: And that's your strongest argument, way 17 stronger than your argument about, hey, the statute of 18 limitations can be extended. 19 you'd agree that's not your number one argument, correct? 20 That's not the strongest argument? 21 MR. JOHNSTON: 22 THE COURT: No. Right. Anytime lawyers get into that, It's toward the end of our brief. Exactly. 23 where you're -- you're being a pioneer. 24 that. 25 83 MR. JOHNSTON: I mean, that's the one Nothing wrong with Well, no, I'm not being a pioneer. Todd Anderson, RMR, CRR App. 137 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 85 of 107 PageID 4318 1 I'm not arguing for an extension of the law. 2 exist in Massachusetts. 3 one of those exceptions. 4 5 6 THE COURT: 84 Those principles We're saying that this case would fit Okay. That's a better -- you're right. You're -- that's a better way of saying it. MR. JOHNSTON: But with respect to the arguments 7 about political speech, you know, Mr. Anderson said we're 8 trying to basically squelch Exxon from saying stuff. 9 what we're trying to do by our CID is not deal with what Exxon You know, 10 necessarily wants to say five years from now, but, you know, 11 what has Exxon said already. 12 THE COURT: I get it. 13 MR. JOHNSTON: Did it make statements that were at 14 variance with what it knew? 15 liability under the consumer protection statute. 16 THE COURT: If it did, there could be If they had had information about how bad 17 global warming was and they said something other than that or 18 withheld it, then you want to know? 19 MR. JOHNSTON: 20 THE COURT: 21 MR. JOHNSTON: That's correct. Right? That's correct, so we can determine 22 whether the totality of the circumstances warrant bringing a 23 civil enforcement action. 24 Attorney General Healey hasn't made any predetermination. 25 The circumstances may; they may not. I mean, if she had, which is what Exxon suggests, I Todd Anderson, RMR, CRR App. 138 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 mean, we would have filed the lawsuit. 2 3 THE COURT: But, you know -- You made a predetermination there's some MR. JOHNSTON: That's right. We had to have that belief -- 6 THE COURT: 7 MR. JOHNSTON: 8 85 reasonable belief that there's some shenanigans going on. 4 5 Page 86 of 107 PageID 4319 Right. -- in order to get the CID in the first place. 9 THE COURT: 10 Right. MR. JOHNSTON: But we have to wait till we have the 11 evidence before we could stand up, sign our names on a pleading 12 under Rule 11, and say we have a right to collect something or 13 get an injunction against Exxon going forward. 14 THE COURT: 15 Whatever else you want to tell me that I cut you off, 16 17 I get it. I get it. tell me. MR. JOHNSTON: I think that I probably dealt with 18 most of the things that I wanted to deal with, but may I just 19 confer with my associates? 20 THE COURT: Oh, sure, sure. 21 MR. JOHNSTON: 22 (Pause) 23 THE COURT: 24 MR. JOHNSTON: 25 THE COURT: Thank you very much. Yes, sir? The consensus is sit down. Okay. I would love to hear from all your Todd Anderson, RMR, CRR App. 139 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 87 of 107 PageID 4320 1 other lawyers, especially Ms. Hoffer. 2 Is it "Hoffer" or "Hoffer"? 3 MR. JOHNSTON: 4 MS. HOFFER: 5 THE COURT: Ms. Hoffer. Hoffer, Your Honor. Hoffer. Because I know she's the one 6 that did all the special research, but I know her time is 7 limited. 8 me all about it, but that's okay. 9 86 So I'll know that she would have liked to have told Okay? Thank you. 10 MR. JOHNSTON: 11 THE COURT: Yes. Good presentation. 12 good job. 13 my thirteenth favorite Yankee, okay? 14 I thought you did a You know, you're one of my -- I guess you're about MR. JOHNSTON: Well, may I say, Your Honor, that I 15 hope you won't be upset at me if I say that I hope this is the 16 last time we see each other. 17 THE COURT: It's okay. It's okay. I have actually 18 been to some football games in Boston, and I might go back one 19 of these days again. 20 21 MR. JOHNSTON: thought that we played football in Massachusetts. 22 23 I didn't think that people in Texas THE COURT: Oh, no. You beat my team when I went up there. 24 MR. JOHNSTON: 25 THE COURT: Oh, pro football. Okay. It was good. Todd Anderson, RMR, CRR App. 140 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 MR. JOHNSTON: 2 THE COURT: 3 MR. JOHNSTON: 4 THE COURT: Page 88 of 107 PageID 4321 All right. No, it was college. It was college. College? So I love it, and I love your state. 5 It's a wonderful place for people to be, and I don't blame 6 y'all for living there. 7 MR. JOHNSTON: 8 THE COURT: Thank you. 10 MR. JOHNSTON: 11 THE COURT: 14 THE COURT: theirs? 17 THE COURT: 21 Okay. Thank you. And then I'll give him a response, too. MR. ANDERSON: 20 Thank you Do you have any response to any of 16 19 I appreciate it. very much. MR. JOHNSTON: 18 I'll put you up. Thank you. 13 15 You are welcome in a friendly capacity anytime. 9 12 Sure. Particularly about jurisdiction. How the heck do I have jurisdiction? MR. ANDERSON: You have personal jurisdiction, Judge, because the Defendant directed her intentional tort at Texas. The face of the CID itself indicates that what she's 22 investigating is speech that occurred in Texas. 23 records of that speech that are in Texas, and she wants to 24 suppress speech that's coming out of Texas. 25 87 THE COURT: Okay. Stop. Todd Anderson, RMR, CRR She wants the I get that. App. 141 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Here's my other question. Page 89 of 107 PageID 4322 Is it true what he said 2 about y'all cooperating in New York and not cooperating with 3 them? 4 MR. ANDERSON: Your Honor, we were served with a 5 subpoena before the press conference, and we are cooperating 6 with it. 7 THE COURT: 8 MR. ANDERSON: 9 THE COURT: Yes? No? Or whatever? Yes. So why the heck are we having this big 10 fight? 11 case in federal court. 12 are agreeing to cooperate there, why aren't you cooperating 13 with them? 14 88 I'm about to start a case involving 10,000, the largest MR. ANDERSON: Why are y'all poking this bear? If you Well, Your Honor, when we started 15 complying with New York, that was before the press conference, 16 and so circumstances have changed. 17 York, all options are on the table, and so -- 18 THE COURT: 19 MR. ANDERSON: 20 21 22 And with respect to New What does that mean? That means that we are considering our options with respect to further compliance. THE COURT: You're maybe going to comply or maybe going to fight? 23 MR. ANDERSON: 24 THE COURT: 25 MR. ANDERSON: (Indicating in the affirmative) Yes? That's right, Judge. Todd Anderson, RMR, CRR When we started App. 142 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 Page 90 of 107 PageID 4323 complying with New York, it's a different landscape. THE COURT: So if they had not had that press 3 conference, some poor judge somewhere else would be fiddling 4 with this, not me, right? 5 89 MR. ANDERSON: Your Honor, it's so rare that you have 6 evidence like this in the public record about an impermissible 7 motive behind a government action. 8 of thing that's concealed. 9 10 11 THE COURT: Normally, that's the type Yeah, but doesn't New York have the same motive they've got? MR. ANDERSON: Oh, New York -- like I said, judge, it 12 could very well be that -- that, you know, all options are 13 available, and they're being considered now, and it's possible. 14 THE COURT: All options are available. Mercy, you 15 sound like the Secretary of State or Defense or the guy that's 16 driving our nuclear submarines or something. 17 me what that even means. 18 MR. ANDERSON: It doesn't tell Judge, it just reflects the fact that 19 this has been a very fluid situation. 20 reaction whenever it receives an inquiry from Government is to 21 respond and comply and to do what it's supposed to do like 22 everybody else. 23 that have come to light that have upended that normal 24 presumption. 25 And ExxonMobil's initial It's this press conference and these documents And that's why everything that the defense says Todd Anderson, RMR, CRR App. 143 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 91 of 107 PageID 4324 90 1 about, you know, we issue CIDs to investigate fraud, we issued 2 400 of them, including to Volkswagen -- you know, we're not 3 contesting any of that. 4 appropriate. 5 THE COURT: That's all well and good and So you're saying if they hadn't had this 6 press conference and it hadn't been pointed out that y'all are 7 doing something -- something that's a shenanigan, it might have 8 had a different outcome? 9 MR. ANDERSON: Right. If there had not been these 10 express public statements that the problem we have with 11 ExxonMobil is that it's confusing the public about the need for 12 the policies we support in the press conference, in the common 13 interest agreement, and in the CID itself -- 14 15 THE COURT: New York? 16 17 How many documents have you produced to 700,000 or more? MR. ANDERSON: THE COURT: 19 MR. ANDERSON: We are still producing to New York, yes. THE COURT: 22 MR. ANDERSON: 23 THE COURT: 25 Yeah, that production Are you still producing? 21 24 A bunch, Judge. has been ongoing for a while and -- 18 20 A bunch? still? Okay. And, Judge, even -- But Schneiderman, is he part of this Is he still part of this one? MR. ANDERSON: Oh, yes. Todd Anderson, RMR, CRR He's pictured on the right App. 144 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 92 of 107 PageID 4325 1 of -- in the press conference looking on, or on my right, the 2 Attorney General's left. 3 THE COURT: He's there. So I'm assuming after this press 4 conference and you had already been cooperating there was a 5 frank conversation with somebody from the Attorney General's 6 Office and a lawyer for Exxon, correct? 7 8 9 MR. ANDERSON: That would -- that -- without going into those details, that would be a fair assumption, Judge. THE COURT: Without going into those details, there 10 was a -- I don't know how frank -- very frank, kind of like 11 what happens at halftime at some football game between the 12 coach and the kid that let the guy score the touchdown. 13 really hard conversations, or that I had with my children 14 growing up when they messed up, you know. 15 MR. ANDERSON: 16 THE COURT: 17 MR. ANDERSON: A very hard conversation, correct? Correct, Judge. Because this is the type of thing that you don't expect to see in a normal 19 investigation -- 20 THE COURT: 21 MR. ANDERSON: Okay. -- where the political objectives are totally laid bare. 23 THE COURT: 24 MR. ANDERSON: 25 Those Right. 18 22 91 All right. Any other response? Judge, I just think it's important to address personal jurisdiction, Judge, because we are confident Todd Anderson, RMR, CRR App. 145 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 that you have personal jurisdiction. THE COURT: 3 done this. 4 how appropriate. 5 6 He even pulled my own cases out. MR. ANDERSON: 8 MR. ANDERSON: 11 I mean, how -- Saxon, Judge, is a case that I'm sure you remember. THE COURT: 10 And the reason is -- He said no other federal judge has ever 7 9 92 Page 93 of 107 PageID 4326 I do remember. You told, Judge, with the parties in front of them, complaining about the fact that the orders that were issued in Utah might have some effect here. Walden is another case where the seizure of the money 12 took place in Georgia where the plaintiffs had been traveling. 13 The DEA agent was in Georgia. 14 go home to Arizona, and that's where they would like to have 15 their money. 16 Supreme Court says that's not enough. 17 some of the effects in Arizona is not enough. 18 He seized the money there. And then they file their lawsuit there. They And the The fact that you feel But then you have Calder which is where in California 19 there's a celebrity named Shirley Jones who resided there, and 20 the National Inquirer published a story in Florida which is 21 where all the defendants were, in Florida, criticizing her, 22 something about her personal life. 23 California. 24 there's personal jurisdiction over the National Inquirer and 25 those defendants in California because the brunt of the injury She sues them for libel in And the Supreme Court says that was appropriate, Todd Anderson, RMR, CRR App. 146 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 94 of 107 PageID 4327 and the cause of action occurs in California. 2 Here, the cause of action occurs in Texas. This is 3 where ExxonMobil speaks. 4 Attorney General disapproves of is coming from. 5 issued her CID, she directed that intentional tort at this 6 state. This is where the speech that the And that is why the tort is here. 7 8 93 When she She intentionally -- Let's think about the principle of personal jurisdiction. 9 THE COURT: I get the principle, but you're comparing 10 Ms. Healey to the National Inquirer. 11 did was akin to that? 12 MR. ANDERSON: So you're saying what she It was akin to it in the sense that 13 she intentionally committed a tort and directed it at the State 14 of Texas. 15 not the state where ExxonMobil operates. 16 agent there who receives service of process and sends it on 17 down to Texas. What she did was, she knows that Massachusetts is We have a registered 18 What she did not like -- and it's in the CID -- is 19 she didn't like that there were certain statements that were 20 being made in Texas. 21 wants the records that are here in Texas. 22 CID to the registered agent knowing that it would come to 23 Texas. 24 25 She didn't like that speech. And she And so she sent the And there's -- you know, in addition to Calder, there's plenty of Fifth Circuit authority on the proposition Todd Anderson, RMR, CRR App. 147 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 94 Page 95 of 107 PageID 4328 1 that where the communication creates a tort in Texas, like Wien 2 Air or Lewis, where you intentionally direct your conduct at 3 the State of Texas knowing that an intentional tort will occur 4 there, there's personal jurisdiction. THE COURT: 5 I get all that. I know those cases. 6 not -- that's not it. 7 this and shut down an attorney general? 9 I mean, has there ever been a judge do MR. ANDERSON: 8 I'm Well, Judge, this is -- I mean, this is honestly unprecedented. Has there ever been an amicus brief 10 filed by 11 state attorneys general saying one of our peers is 11 doing something wrong, she's violating the Constitution by 12 issuing it? If there is such a case where we had that record and 13 14 a federal judge turned down jurisdiction, then I say that's a 15 good point. 16 because these actions are unprecedented. 17 This is a misuse of law enforcement authority, because the 18 Attorney General and those she's working with, including Al 19 Gore -- 20 But the reason there's no precedent here is THE COURT: All right. They're outrageous. Let me stop you. 21 his argument that you have adequate remedy there in 22 Massachusetts? 23 MR. ANDERSON: What about Well, that presupposes that there is 24 some type of exhaustion requirement for a 1983 action that 25 first you have to go to state court, and if you can go to state Todd Anderson, RMR, CRR App. 148 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 96 of 107 PageID 4329 1 court then you can't come to federal court. 2 true, then all 1983 actions would be heard in state courts 3 because you could always go. 4 jurisdiction. 5 exhaustion requirement. 6 But if that were The court is a general You can bring your claims there. There's no And so the idea that we could be in Massachusetts is 7 just -- it's just a false premise; that if we could be there, 8 then we can't be here. 9 10 THE COURT: That's just not true. You could be both? MR. ANDERSON: We could be both, but the problem is 11 that the Massachusetts state court doesn't have personal 12 jurisdiction over ExxonMobil. 13 We filed there because we had to. 14 conservative. 15 have, so we filed a petition there. 16 We were We didn't want to forfeit any rights we might THE COURT: I'm assuming -- I have not looked at your 17 petition there, but I'm assuming that whatever you filed said 18 we're not giving up on our jurisdictional point. 19 procedure to do that, like we do with special appearance in 20 Texas, something like that? 21 MR. ANDERSON: 22 THE COURT: 23 MR. ANDERSON: 24 25 95 And there's a Exactly right, Judge. Something like that? Precisely that. We made a special appearance. THE COURT: Appearance. Todd Anderson, RMR, CRR Okay. Is that what it's App. 149 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 2 3 MR. ANDERSON: I believe it's called a special appearance. THE COURT: 5 MR. ANDERSON: Is it? Okay. Or it may have a different name, but has that effect. 7 THE COURT: 8 MR. ANDERSON: 9 96 called up there? 4 6 Page 97 of 107 PageID 4330 Okay. Okay. We appeared to contest jurisdiction. That was the first point in the brief, is that the Court does 10 not have personal jurisdiction over ExxonMobil. 11 the Court not do anything. 12 pending the lawsuit that we filed here. 13 THE COURT: 14 MR. ANDERSON: We asked that We said just stay this action And they didn't do that. So far the state hasn't done anything. 15 We're still in the middle of briefing. So we'll see if the 16 state -- when we go up there, we'll see if the Judge who's 17 assigned the case -- 18 THE COURT: 19 MR. ANDERSON: 20 THE COURT: 21 MR. ANDERSON: 22 THE COURT: 23 MR. ANDERSON: Stays it? -- decides to stay it -- Okay. -- in deference to these actions. Okay. So for those two reasons -- and, you 24 know, the third one, Judge, even if a Younger abstention was 25 relevant, you know, there's an exception for bad faith. Todd Anderson, RMR, CRR And App. 150 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 97 Page 98 of 107 PageID 4331 1 that's the idea that, you know, if there is a forum in state 2 court, if you're there because of the bad faith of the 3 defendant, well, that's not an argument for putting you in that 4 forum. 5 And so here there is a bad faith that permeates the 6 entire case. What we're arguing here is bad faith, that the 7 Attorney General brought this investigation in bad faith. 8 brought it to deter the exercise of constitutional rights. 9 That is the definition of bad faith. She And that means that 10 Younger abstention doesn't apply and the normal presumption 11 applies, which is that when a federal court has subject matter 12 jurisdiction over the cause and personal jurisdiction over the 13 parties, it hears the case. 14 THE COURT: And so you're saying -- he said, hey, 15 we've got a reasonable belief from these documents. 16 saying they can't have a reasonable belief. 17 argument? 18 MR. ANDERSON: You're That's your What I'm saying, Judge, is that that's 19 exactly right. 20 everything they've told you about this case is pretext, and now 21 we hear for the first time that there are documents from the 22 '50s and '60s that might support their investigation? 23 why didn't they put it in their briefs. 24 25 They say they have a reasonable belief, but Well, They've had -- they filed three -- at least three briefs in this case, and all that they've cited as the basis Todd Anderson, RMR, CRR App. 151 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 99 of 107 PageID 4332 1 for their investigation were those handful of documents from 2 the '80s, which we looked at and we told -- and we encourage 3 you to look at them, too, Judge. 4 and doubt and the need for further research, the same as 5 everybody else in the '80s. All they show is uncertainty 6 And then this theory about -- which the Defendants 7 haven't even tried to defend, this idea that the assets, the 8 proved reserves, might become stranded because of future 9 regulations that might be enacted -- who knows -- in response 10 to climate change. 11 THE COURT: 12 MR. ANDERSON: 13 Anything else? Yes, Judge. May I have just one moment? 14 THE COURT: 15 (Pause) 16 MR. ANDERSON: 17 THE COURT: 18 MR. ANDERSON: Sure, sure, sure. Could I make two final points, Judge? Sure. The first is the nature of the First 19 Amendment harms that we are asking for relief. 20 those are irreparable injuries. 21 the reason that we were discussing before, is that you have 22 that constant risk that your regulator is going to take an 23 adverse action because she doesn't like what you're saying. 24 25 98 Here those -- The injury is irreparable for That's why it's settled precedent, and the defense hasn't contended otherwise, that if you accept that there is a Todd Anderson, RMR, CRR App. 152 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 100 of 107 PageID 4333 1 substantial likelihood that we will prove a First Amendment 2 violation here, then you've also found irreparable injury. 3 It's just a legal truism. 4 other. 5 If you find one, then you've got the So all of this back-and-forth about irreparable harm 6 is settled if you find that there is a First Amendment 7 violation, which we believe we have established. 8 9 THE COURT: I get that, but go back to -- what's the -- what's the tort? 10 What do you think is the tort? 11 MR. ANDERSON: 12 99 The tort is a constitutional tort. It's, number one, the viewpoint discrimination that -- 13 THE COURT: I get it. 14 MR. ANDERSON: Okay. -- motivates, and then the political 15 speech that's being burdened, the fishing expedition in 16 violation of the Fourth Amendment, and the biased investigation 17 in violation of due process. 18 THE COURT: Okay. 19 Okay. 20 MR. ANDERSON: I get that. Go back to your other point. Judge, I think the other point that is 21 very important here is that with respect to Volkswagen, which 22 was the example of an investigation that is on -- that is 23 similar to this one, Volkswagen. 24 there a press conference where the Attorney General and others 25 announced they were against diesel fuel, and so, therefore, Todd Anderson, RMR, CRR Perhaps I missed it, but was App. 153 (214) 753-2170 Page 101 of 107 PageID 4334 100 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 would be investigating Volkswagen because they had a policy 2 disagreement about whether diesel fuel was an appropriate fuel 3 for Americans to use? I doubt it. 4 Did the subpoena to Volkswagen ask for 40 years of 5 records, or did it pertain only to a violation that occurred 6 within the limitations period? 7 8 Everyone knows the Volkswagen issue is a recent one. It's within the four-year period. 9 It's not from the '80s. And, Judge, I think that comparison actually 10 undermines their argument quite a bit, because it shows the 11 difference between a real investigation and one that is -- one 12 that is pretext, one that's about changing the political debate 13 by putting pressure on a company to produce 40 years of records 14 so that someone can sift through all of them and find something 15 that can be used as leverage so the company will change its 16 position. 17 You know, that's the playbook that Matthew Pawa and 18 Peter Frumhoff wrote up a few years ago. 19 they likely presented just before that press conference with 20 the Defendant and Al Gore. 21 Government action is impermissible. 22 THE COURT: 23 MR. ANDERSON: 24 THE COURT: 25 MR. ANDERSON: It's the one that And it's the reason that this Is that it? That's all, Judge. Thanks. Thank you. Todd Anderson, RMR, CRR App. 154 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: 2 MR. JOHNSTON: 3 THE COURT: 4 MR. JOHNSTON: 5 Page 102 of 107 PageID 4335 101 Mr. Johnston, anything else? Just a few quick points, Your Honor -- You bet. -- in response to what Mr. Anderson just said. 6 First off, it's my understanding in response to your 7 question that even though Attorney General Schneiderman was at 8 the press conference, even though there may have been frank 9 conversations, that Exxon continues to produce documents to New 10 York. 11 Second of all, Exxon has suggested that there is no 12 comparison between the Volkswagen case and this one. 13 there are plenty of similar comparisons. 14 articles about what had happened at Volkswagen. 15 CID. 16 find out whether, in fact, there had been deceptive conduct. 17 We ended up settling the case on the basis of what we learned 18 through the CID. 19 In fact, There were press We sent out a We worked collaboratively with other attorneys general to I want to also make one last point about something 20 that is unclear in what Exxon is seeking here. Exxon has asked 21 you to grant an injunction preventing us from enforcing the CID 22 or seeking to enforce the CID. 23 they don't want the Attorney General to do something unilateral 24 about the CID, which, as I have explained to you, we can't, 25 because we need court authority to do so. And that may mean simply that Todd Anderson, RMR, CRR App. 155 (214) 753-2170 Page 103 of 107 PageID 4336 102 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 But it may also mean, although they don't say it so 2 explicitly, that if you were to grant an injunction against us 3 enforcing the CID, it means that we can't even file our brief 4 in three weeks in Massachusetts Superior Court. 5 And we certainly would urge you, regardless of what 6 you are thinking about the case, not to tell us we can't file 7 our briefs in Massachusetts court. 8 9 And the last corollary to that is that Mr. Anderson has suggested that they have irreparable harm because of the 10 First Amendment. 11 they're not producing any documents. 12 Massachusetts court rules under our state procedure that we're 13 entitled to documents, there's no First Amendment issue because 14 there's no document being produced. 15 16 17 18 19 They don't have any irreparable harm if And at least until the So for all of these reasons, including the ones that I raised earlier, Your Honor -THE COURT: What about his argument Younger doesn't apply where you've got 1983? MR. JOHNSTON: Well, I think that in a number of 20 cases that Younger -- that addressed Younger, I think some were 21 1983, but I won't -- 22 THE COURT: 23 24 25 I'll look. not trying to set you up. MR. JOHNSTON: You know, I don't know. I'm I don't know the answer. And, frankly, I can't remember whether any of the cases we cited did or not. Todd Anderson, RMR, CRR App. 156 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 THE COURT: Okay. 2 MR. JOHNSTON: 3 that I can't back up -- 4 THE COURT: 5 MR. JOHNSTON: 6 8 MR. JOHNSTON: 9 THE COURT: MR. ANDERSON: Yes, sir. Thank you. Thank you. Judge, could I just clarify that the Younger point wasn't that it was because it's a 1983 action. 13 MR. ANDERSON: Oh, I'm sorry. But it was because it's bad faith. Younger abstention could easily apply in a 1983 action -- 15 THE COURT: 16 MR. ANDERSON: 18 -- since, after all, that's what this Anything else? THE COURT: 17 Thank you. Yes, sir. 12 14 I promise you. case is about. THE COURT: 11 I'll look at it. And I don't want to make a statement Okay. 7 10 Page 104 of 107 PageID 4337 103 It could. Okay. -- when there is no bad faith. the bad faith. The other point was just that as a general 19 proposition the mere existence of a state forum doesn't 20 preclude a 1983 action from proceeding in federal court. 21 THE COURT: 22 MR. ANDERSON: 23 THE COURT: 24 MR. JOHNSTON: 25 It's Oh, okay. Okay. It's two different -- I got it backwards. But, Your Honor, just with respect to Younger, the case law does say that that bad-faith exception to Todd Anderson, RMR, CRR App. 157 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Younger -- 2 THE COURT: 3 MR. JOHNSTON: 4 they use is parsimonious things. 5 very parsimonious -- 6 THE COURT: 7 Page 105 of 107 PageID 4338 104 Yes, sir. -- is to be applied. Whoa. And the term So we would urge you to be I better write that word down. That's a big word. 8 MR. JOHNSTON: 9 THE COURT: It means -- Could that be rarely? 10 MR. JOHNSTON: Very, very rarely. 11 THE COURT: 12 Okay. 13 (Discussion off the record) 14 (Hearing adjourned) Mercy. We use that in Waco occasionally. Off the record. 15 16 17 18 19 20 21 22 23 24 25 Todd Anderson, RMR, CRR App. 158 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 1 Page 106 of 107 PageID 4339 105 INDEX 2 ARGUMENT: Mr. Anderson................................... 11 3 ARGUMENT: Mr. Johnston................................... 49 4 ARGUMENT: Mr. Anderson................................... 87 5 ARGUMENT: Mr. Johnston.................................. 101 6 ARGUMENT: Mr. Anderson.................................. 103 7 ARGUMENT: Mr. Johnston.................................. 103 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Todd Anderson, RMR, CRR App. 159 (214) 753-2170 Case 4:16-cv-00469-K Document 122-7 Filed 11/26/16 Page 107 of 107 PageID 4340 106 1 I, TODD ANDERSON, United States Court Reporter for the 2 United States District Court in and for the Northern District 3 of Texas, Dallas Division, hereby certify that the above and 4 foregoing contains a true and correct transcription of the 5 proceedings in the above entitled and numbered cause. 6 WITNESS MY HAND on this 19th day of September, 2016. 7 8 9 10 11 12 /s/Todd Anderson TODD ANDERSON, RMR, CRR United States Court Reporter 1100 Commerce St., Rm. 1625 Dallas, Texas 75242 (214) 753-2170 13 14 15 16 17 18 19 20 21 22 23 24 25 Todd Anderson, RMR, CRR App. 160 (214) 753-2170