-: SJC-13211,
Commonwealth V. ExxonMobil corporation.
-: Okay. Attorney Anderson, whenever you're ready.
-: Thank you, Your Honor.
And may I please the court. My name is Justin Anderson.
I represent ExxonMobil in this appeal.
The anti-SLAPP statute provides a special procedure to
protect defendants from civil claims
that are based on petitioning activity.
In this case,
the superior court found that petitioning activity
formed the basis for the state's claims.
The court also found that the statute
requires an all or nothing result.
It's a quote from the decision.
And if there was a basis for the Attorney General's claims
that was not petitioning activity,
then our motion was supposed to be denied.
-: So council, before you get into the specifics of
the three part or two part test,
however you wanna consider it,
I guess here's where I'm troubled.
And maybe you can address this.
So the complaint or the amended complaint
as I understand it alleges that ExxonMobil committed a
fraud against its investors
and against the Massachusetts public
by engaging in a 40 year lie
as to its future prospects and as to what its products
contribute in terms of the degradation of our atmosphere.
I'm wondering why the anti-SLAPP statute
is even available to you or your client
to shut down an enforcement action
by the Attorney General in that circumstance.
-: Your Honor, the statute applies to any,
I'm gonna quote the language to any case--
-: No, I understand.
So before you get into the statute,
I'm just wondering why you think the legislature in passing
the anti-SLAPP statute would have intended for it
to apply to enforcement actions by the Attorney General
period full stop.
That is the intent of the anti-SLAPP statute
is to protect private parties
in using the court system in order
to punish petitioning activity.
And it seems inconsistent to me with the underlying purpose
of the anti-SLAPP statute to allow it to be used
against the Attorney General in her enforcement capacity.
-: Your Honor, the statute provides the answer.
The intent was to make this remedy available in any case--
-: We're supposed to interpret statutes reasonably, sensibly,
consistent with what we think the legislative intent is.
And I'm wondering where you think that that makes any sense
to shut down enforcement actions on behalf of the people
of the Commonwealth against fraudulent activity
by using the anti-SLAPP statute.
-: But Your Honor,
if you take that argument to its logical conclusion, well,
how could we bring a 12B6 month motion against
the Attorney General when it brings a civil action under 93A
that would potentially shut down an enforcement action.
How could we move for summary judgment against
the Attorney General,
that could shut down an enforcement action.
How could we go to trial and win
like we did against the New York Attorney General
who brought a similar case,
that could shut down an enforcement action.
When the Attorney General appears in this court--
-: But in those cases you don't have the first amendment.
You're saying the Attorney General is punishing us
for stating our position on global warming.
And so you have a defense, right?
The government is punishing us for speech.
That's the first amendment.
That seems different and kind to me than 12B6,
failure to state a claim or a motion for summary
judgment, failure to prove your claim.
You have in the constitution a defense,
why would the legislature need it to provide you
the anti-SLAPP statute to supplement that defense?
-: To avoid having to invoke the defense
at summary judgment or trial.
The anti-SLAPP statute provides a mechanism to have a case
that is brought against someone for petitioning activity
dismissed at the outset before burdensome discovery
is imposed on the party
before we have our executives come in to give testimony
and depositions,
before we're dragged into a courtroom where we
have to defend ourselves.
All of this happened in New York,
the anti-SLAPP statute says if the case is brought against
you because of your petitioning activity,
you have a efficient remedy to dispose of
that case at the outset.
And there is no that the legislature
intended to exclude the Attorney General's
civil cases from the scope of the anti-SLAPP statute.
-: What about in the statute that says,
instead of saying a party
including the Commonwealth and its officers
as other parts of the statute say,
the anti-SLAPP statute does not provide that.
So section 6E through 6H defines party
to include the Attorney General,
whereas 59H does not.
Can I ask you to address that?
-: Of course, Your Honor.
So section 6E and F are analogous
to rule 11 where after you've won,
so after ExxonMobil has won on summary judgment,
won on a motion to dismiss, we can then bring a motion
under rule F for cost and fees.
And that's what that provision allows for to a victor,
if they can then show like in rule 11,
that this is brought in bad faith.
-: So sorry, council,
that goes to the substance of what those provisions address.
I'm wondering why the legislation,
I'm trying to figure out the legislative intent, right?
That's the whole point of the statutory construction game.
And in 6E, F, and G, the legislature says,
and these sections also apply to the Attorney General.
In section 59H it doesn't say that.
So normally the absence
of the same language in a different part of the statute in
the same chapter, you would indicate that party
does not include the Attorney General.
-: Your Honor,
there are special rules in the civil procedure that require
there to be an authorization of law before fees
and costs can be recovered from the state.
And so it very well could be that the difference between
what is set forth in 6E and F is the need to expressly
authorize that recovery, whereas 59 which is silent,
it has no exclusion of the state
when it's a civil plaintiff,
doesn't need to address that question
because the recovery of fees is set forth.
And if it doesn't provide the authorization to recover
those fees, then we might not be able to recover fees,
but that doesn't exempt the state.
It doesn't exempt the state from the anti-SLAPP statute.
When the state chooses to be a plaintiff in a civil action--
-: What you've done though,
is you're basically using the anti-SLAPP statute
to shut down all enforcement for years,
that raises all kinds of issues
that are different from an ordinary case.
You're turning the anti-SLAPP procedural posture into
a vehicle that shuts down
the chief enforcement officer of the state's ability
to do even discovery.
Don't you find that a real problem?
You think the legislature meant you to use this procedural
device as a way of preventing discovery, investigation,
you've taken this case and shut it down for now two years,
three years,
they haven't even been able to do the discovery
they're supposed to do.
That's why the anti-SLAPP statute is totally different
and why it shouldn't be applied in this context
it seems to me.
You're not even getting to the merits.
-: Your Honor, that's factually not correct.
-: It is, you haven't allowed any,
you're shutting this process down prematurely
through an anti-SLAPP statute
that's not designed for this purpose.
It seems to me,
it may even raise constitutional questions about the ability
of the AG's office to do investigations in general.
-: Your Honor, the Attorney General did do an investigation.
We didn't bring an anti-SLAPP action
when they issued to CID, according to them,
they've conducted a robust investigation that included
obtaining documents from multiple third parties.
And they brought a complaint against us
based on that investigation.
-: And then when you lost that,
now you've brought an anti-SLAPP and it shut it down again.
-: We haven't shut anything down Your Honor,
they've proceeded to obtain documents through subpoenas,
is we had a conference in front of Judge Crupp last week,
where they asked for the first time that we have a rule 16
conference, we did not oppose.
The judge said, let's have it on May 5th.
We said we will be there.
We have not dragged our feet on discovery at all.
Now we did propose to them that while this case was pending
and while their motion to strike was pending,
that we consent not to engage in party discovery.
That was our proposal. They were free to reject it.
They could have asked for
a rule 16 conference a year ago.
There's nothing in the statute that automatically states
discovery while an appeal is pending.
And this was decided by Judge Green a year ago.
So the idea that ExxonMobil has unilaterally prevented the
Attorney General from obtaining evidence
in this matter is false.
Kafker: We'll hear from them on that.
-: Your Honor,
what we have done is use a remedy
that the legislature has authorized.
The idea that the government can be trusted
never to bring legal action against someone because they
disagree with their speech runs counter
to the fundamental concept and
the fundamental core principle
behind the first amendment itself,
the first amendment protects us from the government.
-: That's my point.
You have a remedy.
You have the first amendment against the AG.
If in fact the complaint, I read the complaint,
it doesn't punish your client for its speech,
it alleges, and this is only an allegation at this point,
that there's been a 40 year fraud committed
on investors in your client's company
and on the American public,
including the good people of Massachusetts.
-: Your Honor, it does more than that.
For instance, on paragraph 26,
it says ExxonMobil's misrepresentations about and failures
to disclose those risks about climate change have delayed
the needed transition to clean energy around the world.
They're saying our petitioning
has delayed the transition to clean energy.
They have on paragraph 195 said that our speech
has forestalled a strong policy response to climate change.
They've said that we paid for Mr. Soon
to go in front of the US Congress.
It's a quote, US Congress, state legislatures,
and the media in a matter that was intended
to reach the general public.
-: But council,
aren't those just the consequences
of the alleged misrepresentations?
-: Your Honor,
the alleged misrepresentations are the
statements that ExxonMobil has made about its views
on climate policy, on energy policy, even today,
what ExxonMobil has said is that the world is not ready
to move away from oil and natural gas.
What are we hearing today that Joe Biden,
the president of the country is not only asking ExxonMobil
and other energy companies to drill more oil,
he's asking Saudi Arabia, Venezuela,
and the idea that ExxonMobil has committed fraud because
six years ago, seven years ago, the company said,
the world is not ready to transition--
-: Can I ask a hypothetical for a second,
let's take the cigarette cases.
The cigarette companies were also saying that cigarettes
don't cause cancer.
Would they have had an anti-SLAPP
protection the same way you're arguing?
I'm just curious,
because it sounds to me the exact same argument
you're making would've applied to the cigarette cases,
because they're saying without any factual basis,
that's the allegation, that cigarettes don't cause cancer.
And then that appears in their marketing devices.
Are you saying they also had anti-SLAPP protection?
And if you're saying they didn't, why are you different?
-: Your Honor I think the difference and
I have not read the complaints that were filed
against the tobacco companies.
The complaint that was filed here refers explicitly to the
fact that we petitioned and the fact that
the Attorney General doesn't like the results.
-: The tobacco companies were doing something very similar.
They said cigarettes didn't cause cancer.
And you using our low tar cigarettes is a good thing.
There was a lot of that in the cigarette cases,
the AG's investigation showed that was factually inaccurate
and knowingly factually inaccurate.
But again, it sounds to me like that's in your view,
protected by anti-SLAPP because the cigarette companies
had the right to advocate
that cigarettes don't cause cancer.
-: Your Honor,
I can't speak to all the aspects of tobacco.
I can speak to the aspects of this case--
-: Why don't you start with the hypothetical,
start with the hypothetical, then you can distinguish it.
-: Well, Your Honor,
tobacco is a consumer product and there was an allegation
that there was a property
in the consumer product that caused a harm
that was concealed.
Here the Attorney General concedes
that our products work as advertised.
There's no allegation that our synergy one gasoline does not
have lower emissions than standard gasoline.
There's no allegation that Mobil One
doesn't reduce friction so that there are fewer emissions.
They don't say it's that that's the misrepresentation
that that's the omission.
What they say is fossil fuels can never be part
of the solution to climate change.
And that's what they accuse us of misrepresenting.
And that's why the judge found that some of our statements
in the complaint are protected petitioning activity and
which he didn't,
in violation of this court's decision in Blanchard,
she said all or nothing, that's it.
And since there are non-protected aspects of the complaint,
I can't grant your motion.
Under Blanchard,
this court said five years ago in Blanchard,
that's not right.
What you need to do is segregate the protected petitioning,
put it in over in this column,
move the other statements into the other column and then
dismiss the claims or at least consider dismissal of the
claims insofar as they are based
on protected petitioning activity.
The court didn't do it because it didn't cite Blanchard.
It cited an appellate court decision from years ago
that said it's an all or nothing result.
That was clear error, that can't be allowed to stand.
That's inconsistent with the framework that this court
has set up in Blanchard, which by the way,
did exactly that.
The hospital in Blanchard made statements
and primarily as the court held
was to protect their reputation.
The primary purpose was to protect their reputation and they
made those statements internally and to the Boston Globe.
The court said the statements that were made
to the Boston Globe are protected.
Defamation claims cannot be based on the statements
to the Boston Globe and the court said,
but you can proceed on the statements that were made
internally, move to the next--
-: If you lose on the first issue,
meaning whether the anti-SLAPP applies to the AG office,
then it is an all or nothing proposition.
But if we agree with you that the anti-SLAPP
can be brought against the AG's office,
we should be parsing their claims
and dismissing some of them saying
some of them are eligible for dismissal
under the anti-SLAPP.
-: That's right.
If you follow the superior court's judge,
I mean the superior court judge did not hold
that the statute doesn't apply to the Attorney General.
-: She thought that was our call?
Not her call?
-: Right, Your Honor.
And so she applied the statute to the Attorney General
found that some of our statements were protected,
but couldn't grant any relief to us because she erroneously
felt bound by an all or nothing standard that didn't apply.
The other error that was made is that she held that this
speech needs to be solely or primarily directed
at the government.
And that's error two.
This court has repeatedly held that that's not the case.
Again, in Blanchard,
the speech was primarily directed
at protecting the reputation of the hospital.
The statute says that the statements need only be reasonably
likely to encourage public participation,
reasonably likely to encourage consideration or review
by the government or made in connection
with a preceeding,
that is a far lower standard than was applied to us
in the trial court,
which was a solely or primarily standard.
And after that erroneous standard was applied,
then it was quick work because the court held
that our statements were motivated by a commercial purpose.
-: So if we agree with you that some of this is advocacy,
but some of it may be fraud,
how do we do the parsing you're talking about?
Cause I get it that some of this may very well
be your advocacy on behalf of the oil companies.
That I get, but at the same time,
there's an underlying factual component
similar to what I was talking about in the cigarette cases,
where there are allegations that you're misrepresenting
factual information dramatically.
How do we sort through that difference
when you weave it together with advocacy?
-: Well, Your Honor,
that's what Blanchard authorized is for us
to move into separate categories.
The protected petitioning activity,
put that in one category, identify in each paragraph,
I know it's a long complaint,
we would be happy to assist the court in identifying the
passages that are specifically directed
at petitioning activity.
Our position is that all of it is,
but that would be something that we would argue
in front of the trial court.
And you'd go through paragraph by paragraph and then excise
so that the protected petitioning activity cannot form the
basis for claims that are brought against the company,
could very well mean that the case continues
as you're describing on the basis
that it's not protected activity,
but it should not be the case that a civil action proceed
where the claims are based on protected petitioning,
which is what the superior court found.
-: Okay. Thank you.
-: Thank you Your Honors.
-: Thank you, Your Honor.
Chief Justice Budd, may I please the court,
Seth Scofield on behalf of the Commonwealth.
I'd like to begin with your question justice Wendlandt,
which is how does this make sense?
And the answer to that question is categorical.
It does not make any sense.
And in fact, not only does it not make sense,
it's not supported by the statute's text, its structure,
its purpose in history
in part due to the policy concerns that the court was
expressing earlier in particular Justice Kafker
in terms of shutting down a law enforcement action
that's intended to protect the public interest
under express statutory authority in chapter 93A,
and it's especially untoward in this case where numerous
courts have already rejected the assertion that
the Attorney General's motive for pursuing ExxonMobil
under chapter 93 is based on a disagreement
with Exxon's viewpoints on climate change policy.
-: I get that this may have serious
consequences to the ability to enforce actions.
And that may mean the AG is outside of the anti-SLAPP
But if you are within the anti-SLAPP,
there's a lot of policy back and forth going on here.
They do have a right to advocate for their energy beliefs.
And can we really carve out the factual representations here
that you allege from their advocacy,
because it's so woven together.
I'm just trying to understand how we do that.
-: Absolutely, Your Honor.
And I think when Your Honor reviews the complaint
and we acknowledge that it's very long
and very detailed and it will take some time to do that,
it will lay bare the fact that the claims in the complaint,
there are three of them, have nothing to do with Exxon's
advocacy on climate change policy or energy policy.
The purpose of the complaint is set forth in paragraph two
of the complaint where it's very clear,
it says, I quote the Commonwealth of
Massachusetts through its Attorney General brings this
action to hold ExxonMobil accountable for misleading
the state's investors and consumers.
In its reply, Exxon points to two incidents where
it suggests that
the Attorney General's 200 page complaint may
refer to some activity that constitutes petitioning.
But that is a far cry from saying
that somehow Exxon can satisfy this court's test
that the Attorney General's three chapter 93A
claims are solely based on ExxonMobil's petitioning.
-: Do we have to do, is it an all or nothing?
Again, I understand it's all or nothing
if the anti-SLAPP doesn't apply to the AG,
but is it all or nothing?
Or do we have to do a parsing,
even you can see there's
some improper reliance on advocacy.
You say a tiny amount, right?
But do we have to do that parsing if some of it is,
or is the trial judge right
that if it's not, is it an all or nothing?
Or do we change that standard?
-: I want to clarify one point and then answer your question,
which is we do not agree that there's any improper alliance
on petitioning in the complaint.
I wanna be absolutely clear about that.
There are some references to advocacy
by ExxonMobil in particular,
the two activities that Exxon refers to in its reply,
a covert Facebook campaign to advocating
against federal fuel economy standards,
vehicle, fuel economy standards, and then advocating--
-: So what do we do with that for example?
-: It's context, Your Honor,
for the claims and the complaint,
the claims aren't based on those activities.
Instead the claims,
and I'm happy to go through each one,
but if we focus just on the consumer claim,
for example, in count two,
the claim is that the Commonwealth alleges
that Exxon violated chapter 93A
by deceiving Massachusetts consumers,
by misrepresent the purported environmental benefit
of using its fossil fuel products
and failing to disclose to Massachusetts consumers
the fact that using the production and use of its
products are a leading cause of climate change.
That claim is based on advertising
at hundreds of ExxonMobil branded service stations
in Massachusetts,
its Rewards+ point of sale smartphone application,
which allows consumers to purchase
ExxonMobil fuel at the station,
and also serves as a vehicle for advertising the products to
Massachusetts consumers in its consumer directed
product promotional website.
That's what the claim is based on.
Allegations about the face--
-: Those have to be factually inaccurate, right?
That's gonna be a key component,
because if it's factually accurate,
they're allowed to say that, right?
You're having to establish unfair and deceptive practices
under 93A, right?
I take it you're gonna have to establish
the falsity of that information.
-: Well, Your Honor, we have a deception claim.
So we have to establish on summary judgment or at trial,
ultimately that those advertisements and marketing were
deceptive because they misled consumers about the benefits
of the products and failing to disclose
that actually using the products doesn't reduce emissions,
doesn't help the environment,
but is actually contributing to climate change.
-: And more importantly that ExxonMobil knew it at the time
they did it.
-: Absolutely Your Honor.
-: How do I tell between the difference between
improper basis of a claim on petitioning activity
versus what you're calling context?
-: How do you tell the difference, Your Honor?
-: That seems to me that if you're punishing ExxonMobil for
its viewpoint or its petitioning activity, that seems wrong.
But you're saying that that stuff comes in
to give the complaint a fraud context.
-: Yes, Your Honor.
And we agree that Exxon has every right to engage
in lawful petitioning.
-: But if anti-SLAPP, and this is a big, if,
if anti-SLAPP applies to the Attorney General
and we go through the Blanchard test,
how do I parse out as Justice Kafker was saying
the information that stays in,
the kind of factual basis that stays in because it is not
solely based on petitioning
and what you just said was context.
-: Well, Your Honor,
I think the first point is an important one,
which is the court in Blanchard, in other cases has said
it's a claim by claim analysis,
not a paragraph by paragraph
allegation by allegation analysis,
what the court does and what the superior court did here and
correctly found in our view was that
the claims are not solely based on Exxon's petitioning.
They are based on its advertising to consumers.
They're based on marketing to consumers.
They're based on private communications
with Massachusetts investors where
our position is that they misrepresented material facts
about the risk climate change poses
to financial markets and the company's value.
Those are not the petitioning activities.
They therefore provide a substantial basis
for each of those claims.
The fact that the court has never held that a
single reference to petitioning automatically results
in dismissal of entire claim.
In fact, I believe it's 477 Harrison,
the court affirmed the denial of--
-: The petitioning is defined so broadly,
is made in connection with
an issue under consideration
or review by any governmental proceeding.
That's really broad language, right?
That's right from the statute.
And when we're talking about one of the major issues
in the Commonwealth right now, energy policy, right?
That's what's at stake here
and it's hard to draw lines on what that sentence means
is made in connection with an issue under consideration
or review by any governmental proceeding.
If you don't win all or nothing on the AG point,
this becomes pretty complicated to sort out that.
Petitioning is defined extremely broadly in our case law.
And that's what makes this thing super complicated.
-: We agree that the definition is very broad.
I disagree with the premise the communications
that the Commonwealth is relying on to support
its three claims falls within the definition,
albeit broad for petitioning.
I think there's a fundamental line.
-: Walk us through a little bit, the green,
I can't remember, green branding
or whatever the language is.
-: Greenwashing, Your Honor.
-: Greenwashing, which is a loaded term, right?
I take it that to play on brainwashing.
What does that mean?
-: What greenwashing means,
we included a definition in our brief that will be helpful
for the court's review as well, but greenwashing is
essentially a brand marketing campaign where companies
tout their environmental accolades in an effort to draw in
more consumers and not withstanding the fact that their
actual environmental record doesn't match
what they're telling the problem.
-: You give an example of the algae and
how they're sort of putting out half the facts on that.
But again, does that get into petitioning,
because other people can fill out the facts.
I worry that claim,
doesn't that claim involve sort of
advocacy, are there factual misrepresentations,
as well as omissions in that?
Are they providing incomplete explanations,
which I guess you're allowed to do in petitioning.
-: Well you can't engage in petitioning fraudulently.
That's not what we're talking.
-: But does the greenwashing claim
include fraudulent allegations too?
-: It does Your Honor.
-: Could you give a couple examples
of the fraud and the greenwashing?
-: Of course. And again, it's a deception.
The terminology is fraud is a big category that covers a lot
of different types of deception, misleading, et cetera.
But our claims are essentially deception claims,
but in the greenwashing context,
and I refer to the court to the one
the superior court found compelling,
which is the Protect Tomorrow Today campaign
that Exxon uses to tell the public,
essentially it says in that campaign
that it defines its approach to the environment.
And one of those approaches
is to protect the environment for future generations.
-: I get you think they're doing a terrible job at that,
but is that petitioning, when they do that,
does that meet the definition of any written
or oral statement made in connection
with an issue under consideration or
review by any governmental proceeding.
How do we say that's not,
I'm just trying to understand how we get there.
-: You say that it's not because the objective intent of that
campaign is to solicit consumers to purchase ExxonMobil
fossil fuel products.
-: But I thought we don't do that intent analysis
that first stage.
-: You can look at objective intent not subjective intent.
And I think there's
a clear line that the court can draw between communications
that are clearly intended to advocate for a policy position,
support a regulation,
don't support a regulation because it's in the company's
financial interest, and distinguish that situation,
which could clearly is petitioning from a situation
where the company is advertising gasoline,
for example,
to consumers at a gas station to sell the product,
that's clearly motivated by an objective
intent to sell a product to a consumer.
And I think that's one way to get at the issue
that you are raising Your Honor,
which is, I think that's
a clear way to draw the line, again,
but we acknowledge that the definition is broad.
I will say that Exxon
hasn't pointed to very many specific examples
in its briefs of specific things in our complaint
that it says qualify as petitioning.
In the reply, it's really two,
the Facebook campaign and
the campaign trying to convince the European Union
commission to withdraw strict greenhouse gas emissions.
So I think that actually speaks volumes to even Exxon's
perspective of what our claims are about.
-: That is a clear petitioning activity, right?
-: I think that clearly could qualify as petitioning,
Your Honor, but again,
that's two paragraphs out of 770 in a 200 page complaint
that clearly does not satisfy--
-: Are those two examples then falling under your context?
-: Yes, Your Honor,
they provide context for Exxon telling consumers and telling
investors that it's supporting environmental protection.
It's supporting stringent greenhouse gas emission standards,
but then secretly behind the scenes
it's doing the opposite.
-: Can I ask one last question with your permission?
So your inability to move forward and enforce,
they're saying you're proceeding.
One thing that worries me about these anti-SLAPP cases is
that they totally transform the way litigation is done
in the Commonwealth in general,
that we end up fighting the anti-SLAPP cases for years
and don't get to the merits.
Is that happening here or not?
-: Council for Mobil says you're proceeding.
You're doing your investigation.
You're doing your discovery.
Is that the case,
or is there a monkey wrench in this process?
-: It is absolutely a monkey wrench in this case, Your Honor,
I would say we can divide this up into categories from the
period when they filed the special motion to dismiss,
there was an automatic stay on discovery
and nothing happened.
After the court decided a special motion to dismiss,
there was a period of time between the decision
and when the appeal was entered
when the Attorney General issued some rule 45
third party subpoenas, but it was our perspective.
And it was a perspective that was suggested
by the superior court last week that during an appeal,
the appeal under the anti-SLAPP statute has the effect
of not allowing at least party discovery
during that period.
And the parties have not engaged in any party discovery.
In fact,
the Commonwealth has, because we're nervous,
because we've been waiting
for so long to move this case forward,
we filed a motion under rule 27B of the rules
of civil procedure which authorize a party
to perform a deposition, to perform trial testimony,
pending an appeal.
So that's the extent of it.
But we used the procedure that was available to us
absent being entitled to engage in full party discovery
pending the resolution of the appeal.
-: You spent most of the time talking about
how this would work if the SLAPP statute applied.
But I think you said at the outset
that you didn't think it applied at all.
Is that correct?
-: Yes, Your Honor.
We do not think that the statute applies.
We think it's very clear from the text, the structure,
the purpose, and the history of the act
that the statute does not apply.
As a textual matter
there is a well settled and widely accepted rule of
construction that the government is not included
in a remedial statute like this one
unless the legislature expresses that intent.
Kafker: What about the town of Hanover.
-: Town of Hanover.
Kafker: That's a government, right?
-: Yes, Your Honor.
Well, it's a municipality, Your Honor.
And that's one way to distinguish that case,
but I think more importantly,
the issue simply wasn't raised in Hanover,
the court had no occasion to consider that issue in Hanover.
So I think that Hanover,
it's a municipality, wasn't raised,
it doesn't carry any precedential value as to whether the
statute applies to an action by the Attorney General
to enforce state law on behalf of the Commonwealth.
And again,
I think what Exxon does is ask this court to flip that
baseline presumption and assume
that the Commonwealth is included
unless the legislature expressly excludes the Commonwealth,
but that's not the way the rule works.
That's not what this case's opinion say.
And I think justice Wendlandt,
it was you that that asked about section 6E,
we don't need to speculate or wonder whether the legislature
was aware of this rule because in chapter 231,
the same chapter that the anti-SLAPP statute appears,
in section 6E they defined the term party
to include agencies and officers of the Commonwealth,
but decided not to apply that definition
to the anti-SLAPP statute.
-: Now can you respond to council's argument
that that was because under the American rule,
everybody pays for their own,
but if you want attorneys fees,
you have to actually set it forth.
-: That's wrong, Your Honor.
The anti-SLAPP statute--
-: That's not really a response.
-: The anti-SLAPP statute also includes an award
of attorney's fees and costs.
And that's part of our structural argument,
which is if the legislature had intended the remedy to apply
to the Commonwealth it would've been incongruous
for the legislature to apply it.
But then,
and not also to expressly waive the Commonwealth's
sovereign immunity to attorney's fees and costs
in the statute.
In addition, Your Honor,
in the second paragraph of the statute,
the legislature gave the Attorney General
a special role under the anti-SLAPP statute,
which is aiding a party against whom a SLAPP statute
has been made to intervene in the action
to support the moving party.
It simply can't be the case that where the legislature uses
the word Attorney General and party in the same statute
that somehow party now includes the Attorney General.
I think the legislative history,
I just, I know the court's been here a long day,
I don't wanna belabor the point,
but I would prefer the court,
urge the court to also review the Amicus brief submitted by
the former Attorney General,
which very carefully reviews
additional legislative history about the anti-SLAPP statute.
And it makes clear that the legislative concern was with
private misuse of lawsuits against petitioning activity.
There's absolutely nothing in the legislative history
that suggests the legislature
had a concern about government misuse of lawsuits.
Thank you, Your Honor.