A Connecticut Superior Court judge knocked down Exxon Mobil Corporation's attempt to strike a state enforcement action for allegedly partaking in a decades-long campaign to deceive the public about the effects of fossil fuels on the environment. The court's decision opened a path for states to move cases forward against companies like Exxon for deceptive marketing, rather than the emissions of fossil fuels itself. Judge John Farley denied Exxon's motion to strike in its entirety. Exxon had argued federal law precluded the state's claims. It also alleged these claims were legally insufficient under the Connecticut Unfair Trade Practices Act and were barred by the First Amendment. In addition, Exxon claimed the plaintiff's claims for relief were legally insufficient, time barred or had due process violations. The state, meanwhile, alleged Exxon was aware its fossil fuel and petroleum products were harming the environment as early as the 1950s and 1960s, and by the 1980s was able to predict how the fossil fuels would contribute to global warming. Despite this alleged knowledge, the plaintiff claimed Exxon continued to sell its products. Further, the state claimed Exxon engaged in a deceptive campaign to misrepresent the effects of fossil fuels on the environment, and also allegedly worked with third-party groups to spread this disinformation. In addition, Exxon was also accused of "greenwashing," or "advertising that claims or implies the defendant's actions are beneficial to the environment." The plaintiff claimed Exxon downplayed its contributions to climate change and falsely portrayed itself as a "corporation committed to seriously combating climate change." The defendant argued that the state's claims were precluded by federal common law and the Clean Air Act. However, the court determined the state's claims center around alleged deceptive marketing conduct, not regulating the emissions. The court concluded this actionable conduct falls under state consumer protection law. "The plaintiff’s claims are not precluded by federal law because, despite the continued vitality of federal common law governing interstate and international emissions, the complaint seeks to regulate only the defendant’s marketing conduct related to those products," the court determined. Exxon also claimed its alleged "greenwashing" statements were not subject to CUTPA because they were made outside of Connecticut, they were not made in the conduct of trade or commerce and the statements were aspirational. But the court held that the plaintiff sufficiently pleaded its claims under CUTPA, and Exxon's further challenges to the allegations were questions for trial, not a motion to strike. The First Amendment was also factored into the defendant's arguments. Exxon claimed the statements challenged by the state were noncommercial speech regarding issues of public policy, which is protected by the constitution. Further, Exxon claimed the aspirational statements about sustainability were opinions, not advertising. Again, the court determined whether Exxon's speech was commercial or noncommercial is fact driven. In addition, the court held that a statement addressing public policy can still be defined as false advertising. Connecticut asked the court to order Exxon to fund a corrective education campaign to remedy the alleged disinformation the defendant spread for decades to be administered by the state or an independent third party. Exxon asked the court to strike this request for relief, claiming this would violate the First Amendment and would be government compelled speech. The court concluded this request was permissible because the campaign would be government speech funded by Exxon, which was found to be constitutional under the 2005 U.S. Supreme Court decisionJohanns v. Livestock Marketing Association " presentation="role" href="https://supreme.justia.com/cases/federal/us/544/550/" target="_blank" link-data="{"cms.site.owner":{"_ref":"0000018e-8611-dbad-a9af-fe79f4ec0000","_type":"ae3387cc-b875-31b7-b82d-63fd8d758c20"},"cms.content.publishDate":1764619278510,"cms.content.publishUser":{"_ref":"00000192-f869-d9e7-a3df-fbeddcb90000","_type":"6aa69ae1-35be-30dc-87e9-410da9e1cdcc"},"cms.content.updateDate":1764619278510,"cms.content.updateUser":{"_ref":"00000192-f869-d9e7-a3df-fbeddcb90000","_type":"6aa69ae1-35be-30dc-87e9-410da9e1cdcc"},"link":{"attributes":[],"target":"NEW","url":"https://supreme.justia.com/cases/federal/us/544/550/","_id":"0000019a-db81-d603-a59e-ffc147020000","_type":"33ac701a-72c1-316a-a3a5-13918cf384df"},"theme.bundle-default.:link:LinkEnhancement.hbs._template":null,"theme.bundle-default.:link:LinkEnhancement.hbs._preset":null,"_id":"0000019a-db81-d603-a59e-ffc147020001","_type":"02ec1f82-5e56-3b8c-af6e-6fc7c8772266"}"> Johanns v. Livestock Marketing Association. Exxon further asked the court to strike the state's request for the court to order a disgorgement of profits as restitution for the alleged unfair and deceptive trade practices. The defendant claimed this would violate due process because the allegations involve decades of conduct, claims are time barred under CUTPA's three-year statute of limitations and the state cannot seek disgorgement on behalf of citizens. The court concluded CUTPA's three-year limit only applies to private actions, not statement enforcement and that the state's request survives the motion to strike. "With the understanding that disgorgement is the form of restitution sought by the plaintiff, and that the attorney general acts on behalf of the public when pursuing an enforcement action under CUTPA, the plaintiff's claim for relief is proper," the court held. Connecticut Attorney General William Tong, counsel for the plaintiffs, said the case is in the discovery phase, and he plans "to uncover and expose ExxonMobil’s lies and to hold the company accountable for the harm their deception has caused." "ExxonMobil is throwing the kitchen sink at us, trying every angle to invalidate our case," Tong claimed. "Once again, they have failed on every count. Our case is simple and strong—ExxonMobil amassed billions of dollars in profits off a decades-long campaign of lies, and they must be held accountable." Exxon is represented by Kevin M. Smith, Tadhg Dooley, David Norman-Schiff, Jessica Puterman and Robert M. Langer of Wiggin and Dana; and Theodore V. Wells, Jr., Daniel J. Toal and David K. Kessle of Paul, Weiss, Rifkind, Wharton & Garrison. Counsel for the defendant did not respond to a request for comment.