Hemenway & Barnes Files Amicus Brief on Behalf of Former Massachusetts Attorneys General Defending Scope of State Investigative Authority

December 13, 2018

Hemenway & Barnes attorneys Edward Notis-McConarty, M. Patrick Moore Jr. and Vanessa A. Arslanian filed an amicus brief on behalf of every living former Massachusetts Attorney General – Frank Bellotti, Jim Shannon, Scott Harshbarger, Tom Reilly, and Martha Coakley -- in the case of Exxon Mobil Corp. v. Healey. The case, which is on appeal in the U.S. Court of Appeals for the Second Circuit, challenges the Massachusetts Attorney General Maura Healey’s authority to investigate Exxon under M.G.L. c. 93A, the unfair and deceptive practice statute.

In March 2016, AG Healey announced her office was investigating Exxon for possible Chapter 93A violations arising from allegedly misleading statements about the risks of climate change. Exxon filed suit to stop the investigation, making a novel claim that because climate change is a political issue on which they have a stance, their paid product marketing efforts should be immune from state review. In March 2018, federal district court judge Valerie Caproni rejected that claim.

The brief addresses how the Former Attorneys General have used civil investigative demand (CID) under Chapter 93A to protect consumers in Massachusetts and to ensure a fairer marketplace. It addresses why entities, like Exxon, that unsuccessfully challenge the enforcement of CIDs in state court are not —and must not be —permitted to recast the same claims as a federal action. Otherwise, the core state police power of consumer protection would be impeded by delay, procedural wrangling, and even discovery into ongoing state law enforcement investigations.

Read the brief here: Exxon Mobil Corp. v. Healey Amicus Brief