COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.

SUPERIOR COURT
CIVIL ACTION NO.: 16-1888F

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IN RE CIVIL INVESTIGATIVE
DEMAND NO. 2016-EPD-36,
ISSUED BY THE OFFICE OF THE
ATTORNEY GENERAL

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RECEIVED
OCT 1 8 2019
SUPERIOR COURT-CIVIL
MICHAEL JOSEPH DONOVAN
CLERK/MAGISTRATE

THE COMMONWEALTH’S OPPOSITION TO
EXXONMOBIL’S SO-CALLED EMERGENCY MOTION TO EXTEND TIME
TO MEET AND CONFER UNDER G.L. c. 93A, § 4
The Office of the Attorney General (“AGO”) of the Commonwealth of Massachusetts
(the “Commonwealth”) opposes the so-called Emergency Motion of the petitioner Exxon Mobil
Corporation (“ExxonMobil” or the “Company”) to extend the time to meet and confer with the
AGO. ExxonMobil’s Emergency Motion follows the AGO’s service by hand on ExxonMobil
last week—on Thursday, October 10, 2019—of the Commonwealth’s letter providing the
statutorily-afforded five days’ notice of its intent to file an action against ExxonMobil for the
Company’s violations of the Massachusetts Consumer Protection Act (“Chapter 93A”), G.L. c.
93 A, § 4 (the “Notice”). The Emergency Motion seeks unprecedented relief without legal basis
and should be denied. For that reason and because, indeed, ExxonMobil violated its own
obligation to confer with the AGO under Superior Court Rule 9A(d) regarding the Emergency
Motion, the Commonwealth respectfully requests that the Court immediately deny the
Emergency Motion on the papers without a hearing. ExxonMobil’s litany of “conspiracy”
accusations against the Attorney General do nothing to rescue the Company’s failure to follow
proper court procedure or advance a legal rationale for relief—because this Court and the

 Supreme Judicial Court already have rej ected such claims as a basis for derailing the Attorney
General’s efforts to investigate and sue it for violations of Chapter 93A.
Section 4 of Chapter 93 A requires the AGO to provide a prospective defendant five days’
notice of the Commonwealth’s intent to sue and “an opportunity to confer with the [AJttomey
[Gjeneral in person or by counsel” (emphasis added). The Notice afforded ExxonMobil that
opportunity. The AGO is aware of no authority—and ExxonMobil cites none—that this
requirement provides a prospective defendant the right, as ExxonMobil misleadingly posits here,
to defer suit until the defendant can conveniently confer in person with the AGO, on whatever
timeframe the defendant chooses. Such a requirement would render the five-day period a
nullity.1
Rather than take advantage of the opportunity to confer with the AGO about its noticed
action and any interest the Company may have in resolving the matter without litigation,
ExxonMobil has filed this absurd motion. ExxonMobil is using this blatantly obstructionist tactic
in the continuation of its over three-year effort to stymie first the AGO’s pre-suit investigation,
and now the AGO’s properly-noticed initiation of a lawsuit to hold ExxonMobil accountable for
its on-going deceptions of the Commonwealth’s consumers and investors. ExxonMobil plainly
seeks to blunt the AGO’s enforcement of Chapter 93 A and prevent the AGO from seeking to halt
ExxonMobil’s deceptive and unlawful practices.
As this Court will recall, the AGO originally served ExxonMobil with a civil
investigative demand (“CID”) in 2016. Rather than produce documents as called for in the CID,

1 Whereas the Legislature provided businesses with 30 days to respond to consumer demand
letters under Chapter 93A before consumers can initiate suit, the statute gives the Attorney
General the right to bring suit five days after sending a notice letter to a defendant.
2

 ExxonMobil not only filed a petition in this Court to strike or modify the CID, as is permitted by
Chapter 93 A, but also filed a second, similar federal lawsuit in the Northern District of Texas, a
court that had no personal jurisdiction over the Attorney General. This Court rejected all of
ExxonMobil’s claims, and the Supreme Judicial Court affirmed. On the federal side, the
Northern District of Texas transferred venue to the Southern District of New York,2 where that
court likewise rejected all of Exxon Mobil’s contentions. ExxonMobil’s appeal in the Court of
Appeals for the Second Circuit is now pending.
Notwithstanding ExxonMobil’s lack of cooperation in the investigation and failure to
produce documents in response to the CID, the AGO has conducted a detailed investigation and
is now prepared to sue ExxonMobil for deceiving Massachusetts investors and consumers. The
AGO consequently served the Notice last week, on October 10, in expectation of conferring with
the Company in a timely fashion and then, failing a fruitful conversation, promptly filing a civil
action in this Court. In this regard, the Commonwealth has fully satisfied its obligations under
G.L. c. 93 A, § 4, having notified ExxonMobil of the Attorney General’s intended action and
having provided the Company an opportunity to confer as to the proposed action.
In fact, ExxonMobil has had a full week to confer with the AGO to demonstrate that it
was prepared to have meaningful discussions about the Commonwealth’s allegations, and the
Company’s perspective as to how to address them. On October 15, the AGO again invited such a
discussion—to see if there was any reasonable prospect for fruitful negotiation—and rather than
so engaging with the AGO in any fashion (even to alert the AGO of this Motion before its filing)

2 The New York Attorney General was a co-defendant in that case and has now sued
ExxonMobil in New York State Court, which is scheduled to start trial next week. The AGO is
not involved in the New York trial.
3

 ExxonMobil waited until the last possible moment before the end of the five-day notice period to
file its application to block the Commonwealth’s filing of its lawsuit. Clearly, ExxonMobil’s
vituperative tone in its sole communication with the AGO and papers before this Court reflects
its apparent determination to reject good faith discussions regarding the Commonwealth’s claims
and defeats the entire purpose of the five-day period for conference set forth in § 4.
The Commonwealth has statutory authority to file suit once the five-day notice period is
satisfied. G.L. c. 93 A, § 4. Again, the Commonwealth is aware of no case law, and ExxonMobil
cites none, that provides this Court with authority to bar the Commonwealth from filing suit once
it has lawfully complied, as the Commonwealth has, with Chapter 93A’s pre-suit notice
requirements, including an offer to confer with the Company or its counsel. See Matter of
McKnight, 406 Mass. 787, 791-92 (1990) (court may not direct agency to act regarding a matter
within the agency’s discretion). ExxonMobil’s opportunity to confer, by the terms of the statute,
has now elapsed, as a matter of law. The Commonwealth reserves all of its rights to initiate its
action against ExxonMobil at any time. ExxonMobil has not made a showing, nor could it, that
this Court has any legal or equitable ground to enjoin the Commonwealth’s lawful exercise of its
enforcement authority. Whatever rights ExxonMobil might have to raise its objections in a
motion to dismiss following the filing of the Complaint, the Company cannot block the filing.
This Court should reject ExxonMobil’s invitation to further impede the Commonwealth’s
exercise of its rightful, statutory enforcement prerogatives, including the AGO’s authority to file
a complaint against ExxonMobil to obtain the relief necessary to protect Massachusetts
consumers and investors under Chapter 93 A, and the AGO urges the Court not to restrain the
AGO from filing suit at risk of infringing the separation of powers.
4

 ExxonMobil’s refrain of alleged prosecutorial bias and bad faith collusion by the AGO
with the New York Attorney General can in no way support its Motion. These baseless claims
have now been rejected by the courts, both state and federal, that have heard them, including this
Court, the Supreme Judicial Court, and the Southern District of New York.3
Nor is the Company’s availability to confer during the statutory period in any question.
ExxonMobil is one of the country’s largest companies with numerous executives capable of
conferring with the Attorney General. The Company is represented in this matter by the Paul
Weiss firm, which employs over 1,000 lawyers in eight offices spanning the globe, as well as
skilled local and in-house counsel. Moreover, ExxonMobil has been sued by at least a dozen

3 ExxonMobil’s renewal of its conspiracy theory here is barred by, among other things, res
judicata. Unbelievably, ExxonMobil’s papers repeat the Company’s allegations of bias (dating to
2012, three years prior to the Attorney General taking office) without even the candor of citing
this Court’s or the Supreme Judicial Court’s rulings on that very issue. See In re Civil
Investigative Demand No. 2016-EPD-36, Issued by the Office of the Attorney General, Order on
Emergency Motion of ExxonMobil Corporation to Set Aside Or Modify the Civil Investigative
Demand or Issue a Protective Order and the Commonwealth’s Cross-Motion to Compel
ExxonMobil Corporation to Comply with Civil Investigative Demand No. 2016-EPD-36,
Brieger, J., dated January 11, 2017, pp. 11-13; Exxon Mobil Corporation v. Attorney General,
479 Mass. 312 (2018), pp. 327-329.
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 states and municipalities in connection with its contribution to climate change.4 In each of those
proceedings, the Paul Weiss law firm represents ExxonMobil, and it also represents ExxonMobil
in other matters. It is simply not credible that ExxonMobil, the largest publicly traded oil and gas
company in the world, is not in a position to engage in discussions with the AGO about the
Commonwealth’s action because it is also scheduled to commence next week the trial in one of
those cases, the New York Attorney General’s Office’s claims against it related to ExxonMobil’s
climate change-related investor deception.
Indeed, it is a certainty that ExxonMobil and its counsel spent more time discussing,
preparing, and filing this purported Emergency Motion and Memorandum of Law (running to 18
pages of argument) than a conversation with the AGO would have taken to determine that no
settlement of the Commonwealth’s claims was likely.
Accordingly, there is no basis for ExxonMobil’s assertion that its upcoming trial
precludes it from now taking advantage of Chapter 93 A’s “meet and confer” opportunities.
Indeed, this Emergency Motion is a page from the now all-to-familiar ExxonMobil playbook—
for example, ExxonMobil declined various attempts to resolve disputes over the CID issued to it

4 City ofNY v. BP p.l.c. et al., S.D.N.Y. 2018; Board of County Commissioners ofBoulder
County v. Suncor Energy (U.S.A.), Inc., et al., District Court for the County of Boulder, State of
Colorado, 2018; King County v. BP p.l.c., et al, Washington Superior Court, King County, 2018;
Rhode Island v. Chevron Corp., et al, State of Rhode Island, Providence County, 2018; Mayor
and City Council ofBaltimore v. BP p.l.c., Circuit Court for Baltimore City, 2018; County of
Santa Cruz v. Chevron, et al., California Superior Court, County of Santa Cruz, 2017; County of
San Mateo v. Chevron, et al., California Superior Court, County of San Mateo, 2017; City of
Imperial Beach v. Chevron Corp., et al., California Superior Court, County of Contra Costa,
2017; County ofMarin v. Chevron, et al., California Superior Court, County of Marin, 2017,
People of the State of California v. BP p.l.c., et al. (Oakland), California Superior Court, 2017;
People of the State of California v. BP p.l.c., et al. (San Francisco), California Superior Court,
2017; and People of the State ofNew Yorkv. Exxon Mobil Corporation, Supreme Court, New
York County, 2018.
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 by the AGO in 2016, instead stonewalling the AGO’s lawful investigation.5 It has twice sought
delays of oral argument in the Second Circuit appeal of the district court ruling in the AGO’s
favor on ExxonMobil’s baseless claims challenging the AGO’s CID authority, citing work
demands of one of ExxonMobil’s Paul Weiss attorneys.
Further, ExxonMobil violated Superior Court Rule 9A(d)(l), when it elected not to
confer with the AGO as required before filing its Emergency Motion. That rule exempts
emergency motions from the other requirements of Rule 9 A, “provided, however, that a party
filing an emergency motion shall certify in the motion that it has made a good faith effort to
contact and confer with all parties regarding the subject of the motion.” In its motion filing,
ExxonMobil made no such certification, nor could it, as it never made such an effort. Under
these circumstances, ExxonMobil’s unlawful tactics that disregard the Commonwealth’s civil
procedural requirements should not be rewarded with any further delay, and the Court should
deny the Emergency Motion on the papers and without a hearing.6
ExxonMobil has requested in writing that the Commonwealth refrain from filing suit
until after the hearing in this matter. The Attorney General has agreed in writing to refrain until
the hearing—or such earlier time as the Court may deny the motion without hearing, subject to
the understanding that ExxonMobil likewise refrains from suing the Commonwealth or the

5 For example, the parties met once in Boston and once at a federal court-ordered mediation
without an offer from ExxonMobil to produce a single document in response to the CID,
including any of the millions of pages that it produced to New York prior to New York’s lawsuit.
6 The Commonwealth also notes that this proceeding in which ExxonMobil has filed its
Emergency Motion is limited to ExxonMobil’s challenge to the CID and the Attorney General’s
cross-motion for enforcement of the CID. The Emergency Motion involves neither a challenge
to the CID (which is foreclosed by the Supreme Judicial Court opinion in this matter) nor an
effort by the Attorney General to enforce it.
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 Attorney General in this Court or any other. In the event that the Court does not deny the
Emergency Motion on the papers and without a hearing, that symmetry must remain in place
until the hearing.7
Dated: October 18, 2019
Respectfully submitted,
THE COMMONWEALTH OF
MASSACHUSETTS
MAURA HEALEY
AtTORNEY GENERAL

lcnarcl Johnston, BBO # 253420
Chief Legal Counsel
richard.j ohnston@mass.gov
Melissa A. Hoffer, BBO# 641667
Chief, Energy and Environment Bureau
melissa.hoffer@mass.gov
Christophe G. Courchesne, BBO# 660507
Chief, Environmental Protection Division
christophe. courchesne@mass. gov
I. Andrew Goldberg, BBO# 560843
andy.goldberg@mass.gov
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
One Ashburton Place, 18th Floor
Boston, MA 02108
(617) 727-2200
Fax (617) 727-9665

7 Given ExxonMobil’s prior resort to out-of-state federal courts to adjudicate duplicative claims
and other vexatious tactics (such as pursuing a federal court deposition of the Attorney General
herself in 2016), the Commonwealth is concerned that ExxonMobil intends to use any delay to
tie up the AGO in other forums rather than to meet-and-confer regarding the Commonwealth’s
claims in good faith.
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 CERTIFICATE OF SERVICE
I, I. Andrew Goldberg, Assistant Attorney General, hereby certify that on this 18th day of
October, 2019,1 shall cause the foregoing document to be served on counsel of record by having
a copy of said document delivered by hand to each of: (i) Thomas C. Frongillo, Esq., Pierce
Bainbridge Beck Price & Hecht LLP, One Liberty Square, 13th Floor, Boston, Massachusetts
02109, and (ii) Caroline K. Simons, Esq., Orrick, Herrington & Sutcliffe LLP, 222.Berkeley
Street, Suite 2000, Boston, Massachusetts 02116; and by email to each of: (i) Theodore V. Wells
Jr., Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, at twells@paulweiss.com, and (ii)
Justin Anderson, Esq., Paul, Weiss,
ianderson@paulweiss.com.

Assistant Attorney General

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