Rebecca Tushnet

State v. Exxon Mobil Corp., 2025 WL 3459468, No.
HHDCV206132568S (Conn. Super. Ct. Nov. 26, 2025)

The court allows greenwashing claims against Exxon to
proceed under the Connecticut Unfair Trade Practices Act (CUTPA). The state
alleged a decades-long “systematic campaign of deception” about the impact of
its fossil fuel products on the earth’s climate and a more recent
“greenwashing” campaign designed to bolster its image as an environmental
steward in order to attract consumers.

The state focused particularly on an advertising campaign
that began in 1970 and continued until 2007 or later, including advertorials in
the New York Times nearly every Thursday between 1972 and 2001 with knowingly false
claims such as

• Claiming that “a greenhouse
effect” that could “melt the polar ice caps and devastate U.S. coastal cities”
was a “lie” and a “myth of the 1960s and 1970s.”

• Describing predictions concerning
the impact of global warming as “media hype” creating “an unwarranted sense of
crisis.”

• Promoting the delay of any
response to climate change based on a supposed “lack of scientific data.”

• Using scientific data in a
misleading fashion to suggest that fossil fuels had little to do with global
warming and that “little if any warming” had occurred.

Greenwashing: Exxon allegedly promotes its “minor and
insignificant alternative fuels program to obscure its continued focus on its
fossil fuel business and mislead the public into believing that the defendant
is making serious efforts to address climate change.” The ads also allegedly
mislead consumers into believing that “certain of its fossil-fuel-based
products can help consumers reduce greenhouse gas emissions and improve fuel
economy.” Exxon allegedly “sought to falsely induce purchases and brand
affinity by portraying ExxonMobil as a company working on a solution to climate
change through selling ‘green’ products.”

The materially false claims allegedly included: 

a. that ExxonMobil was uncertain
that climate change was real, occurring or would occur in the future;

b. that ExxonMobil was uncertain
that human activity, including the combustion of fossil fuels, contributed to
climate change;

c. that there was time to wait
before taking action;

d. that there was a balanced debate
amongst scientists about whether climate change was occurring, its relationship
to human activity, and whether its effects would be positive or negative;

e. that ExxonMobil’s research
supported the assertions in (a) – (d).

The state sought penalties based on the number of false ads,
as well as injunctive relief against making the claims and requiring disclosure
of Exxon’s relevant internal research. It disclaimed seeking any damages caused
by Exxon’s contribution to climate change.

Exxon argued that federal law preempted claims seeking
monetary relief for injuries allegedly caused by interstate and international
greenhouse-gas emissions. Although the court followed the framework in City of
New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021), finding preemption, it
distinguished the claims at bar. The Chevron case involved claims for
“(1) public nuisance, (2) private nuisance, and (3) trespass under New York law
stemming from the [defendants’] production, promotion, and sale of fossil
fuels. The [plaintiff] requested compensatory damages for the past and future
costs of climate-proofing its infrastructure and property, as well as an
equitable order ascertaining damages and granting an injunction to abate the
public nuisance and trespass that would go into effect should the [defendants]
fail to pay the court-ordered damages.”

Here, the deceptive marketing claims and, to some extent,
the nature of the relief sought counseled against preemption. The state’s CUTPA
claims didn’t amount to state regulation of “the production, sale and use of
fossil fuels,” but were limited to “regulating the associated marketing conduct.”

Indeed, in Connecticut v. Exxon Mobil Corp., 83 F.4th 122,
142 (2d Cir. 2023), the Second Circuit addressed federal removal jurisdiction in
this case in a decision that resulted in remand to state court. The court said,
“Each of the three necessary elements of Connecticut’s deception claim is one
that a court could … resolve[ ] … without reaching the federal common law
of transboundary pollution…. We entirely agree with the district court’s
analysis of this point: Connecticut alleges that ExxonMobil lied to Connecticut
consumers, and that these lies affected the behavior of those consumers. The
fact that the alleged lies were about the impacts of fossil fuels on the
Earth’s climate is immaterial.” So too with the unfairness claim.

On the merits, the complaint stated a claim. Exxon argued
that the statements were made outside of Connecticut. CUTPA defines “trade” and
“commerce” as: “the advertising, the sale or rent or lease, the offering for
sale or rent or lease, or the distribution of any services and any property,
tangible or intangible, real, personal or mixed, and any other article, commodity
or thing of value in this state.” The federal courts have “held that CUTPA does
not require that a violation actually occur in Connecticut, if the violation is
tied to a form of trade or commerce intimately associated with Connecticut, or
if, where Connecticut choice of law principles are applicable, those principles
dictate application of Connecticut law.” Based on the allegations of the
complaint, some of the alleged tortious conduct occurred in Connecticut (advertorials
in papers delivered to Connecticut), and that was enough.

Were the claims made in “trade or commerce”? Lafferty v.
Jones, 229 Conn. App. 487, 327 A.3d 941 (2024), held that Alex Jones’s
defamatory and harassing speech, which was motivated by desire to sell
products, but otherwise unrelated to those products, fell outside the scope of
“trade” and “commerce” in CUTPA. “[N]othing in the defendants’ speech, in and
of itself, concerning the Sandy Hook massacre made any mention of their
products.” That wasn’t the case here. “The speech at issue in the present case
is expressly alleged to be about the defendant’s products, if not specifically
then genetically.” [ed. note: generically?] After all, “advertising” “is not
limited to direct and express solicitations for the sale of a product,” but
includes “[a]ny form of public announcement intended to aid directly or
indirectly in the sale of a commodity….” At least without a more developed
factual record, the court wasn’t going to reject the claims here.

Were the statements falsifiable, or just opinion or true?
Were they immaterial? The complaint adequately alleged deceptiveness; many of
these disputes were for the factfinder. In determining whether a claim is
falsifiable or opinion, Connecticut requires “analysis of three basic,
overlapping considerations: (1) whether the circumstances in which the
statement is made should cause the audience to expect an evaluative or
objective meaning; (2) whether the nature and tenor of the actual language used
by the declarant suggests a statement of evaluative opinion or objective fact;
and (3) whether the statement is subject to objective verification.”

“It may be that some of the statements referenced in counts
one and two of the complaint are expressions of opinion but … this court is
being asked to make that judgment based only on the allegations of the
complaint.” The complaint sufficed, especially given allegations that Exxon’s
internal research disagreed with its ads. Interpretation of CUTPA is supposed
to be guided by FTC interpretations, and the FTC has long held that “[c]laims
phrased as opinions are actionable… if they are not honestly held, if they
misrepresent the qualifications of the holder or the basis of his opinion or if
the recipient reasonably interprets them as implied statements of fact.”

The disclosure-based claims also survived because, even
though there’s no duty to disclose in many circumstances, one who decides to
speak may not omit material facts if the omission misleads reasonable consumers
about the import of the affirmative claims, and that was alleged here.

And materiality was properly alleged, given that materiality
is a lower standard than reliance:

The FTC’s publication of the Green
Guides reflects a recognition that environmental issues are a matter of
interest and concern to consumers and that, therefore, the defendant’s alleged
greenwashing efforts are material, at least potentially so. It is fair to be
skeptical that consumers would choose to purchase gasoline from the defendant
based on an erroneous impression that the defendant is proactively and
earnestly engaged in efforts to reduce greenhouse gas emissions through the
development of alternative energy sources and other more eco-friendly fossil
fuel products. It is not a question of reliance by the consumer, however, only
a question whether the consumer is influenced by the defendant’s allegedly
misleading environmental marketing. That is a question of fact, not a question
of law.

Unfairness claims survived for much the same reasons. CUTPA’s
unfairness standard is taken from the FTC:

(1) [W]hether the practice, without
necessarily having been previously considered unlawful, offends public policy
as it has been established by statutes, the common law, or otherwise—in other
words, it is within at least the penumbra of some common law, statutory, or
other established concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; (3) whether it causes substantial injury to
consumers, [competitors or other businesspersons]…. All three criteria do not
need to be satisfied to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of the criteria or because
to a lesser extent it meets all three….

Did the First Amendment bar the claim? Not at this stage.
Commercial speech “can include material representations about the efficacy,
safety, and quality of the advertiser’s product, and other information asserted
for the purpose of persuading the public to purchase the product.” And “[a]dvertisers
should not be permitted to immunize false or misleading product information
from government regulation simply by including references to public issues.” Interestingly,
the court relied heavily on Jordan v. Jewel Food Stores, Inc., 743 F.3d 509
(7th Cir. 2014) (an ad congratulating Michael Jordan on his career and bearing
store branding, but not explicitly proposing a commercial transaction or
mentioning a specific product, was commercial speech), and Kasky v. Nike, Inc.,
45 P.3d 243 (2002) (Nike’s advertorials and letters to the editor claiming fair
labor practices were commercial speech). Jordan: “An advertisement is no
less ‘commercial’ because it promotes brand awareness or loyalty rather than
explicitly proposing a transaction in a specific product or service.”Kasky:
“speech is commercial if the speaker is a commercial person or entity, the
intended audience is likely to be consumers of the speaker’s products or
services, and the content of the speech includes ‘representations of fact about
the business operations, products or services of the speaker… made for the
purpose of promoting sales of, or other commercial transactions in, the
speaker’s products or services.’”

In dismissing cert in Kasky as improvidently granted—basically
because they couldn’t figure it out—Justice Stevens wrote:

Whether similar protection [as in defamation
law] should extend to cover corporate misstatements made about the corporation
itself, or whether we should presume that such a corporate speaker knows where
the truth lies, are questions that may have to be decided in this litigation.
The correct answer to such questions, however, is more likely to result from
the study of a full factual record than from a review of mere unproven
allegations in a pleading. Indeed, the development of such a record may
actually contribute in a positive way to the public debate.

“Unfortunately, in the twenty-two years that followed the
Court’s decision to dismiss the writ of certiorari in Kasky, it still
has not addressed the ‘important,’ ‘difficult’ and ‘novel’ issues presented.”
Preach!

Anyway, Exxon’s conclusory claim that the statements
described in the complaint do not propose commercial transactions were insufficient.
“[T]he mere presence of non-commercial information in an otherwise commercial
presentation does not transform the communication into fully protected speech.”

Nor did the Noerr-Pennington doctrine, which protects
the right to petition the government through lobbying, litigation, or other
advocacy including publicity campaigns, bar the claims at this stage.

The court also rejected challenges to various smaller bits
of the complaint, such as the state’s claim for relief seeking “an order that
ExxonMobil fund a corrective education campaign to remedy the harm inflicted by
decades of disinformation, to be administered and controlled by the State or
such other independent third party as the Court may deem appropriate.” This
wasn’t government-compelled speech or compelled subsidy of private speech; the
funds would be used by the state to pay for corrective education.

Restitution/disgorgement: the state sought “payment of the
monetary value of the defendant’s gain” to the state, acting on behalf of the
citizens of the state. “[W]hen a public entity seeks disgorgement it does not
claim any entitlement to particular property; it seeks only to deter violations
of the [ ] laws by depriving violators of their ill-gotten gains.” This was a proper
request.

Can the state reach decades back in its claims?  CUTPA’s three-year limitations period
applicable to private enforcement actions does not apply to actions brought by
the state. “The defendant presents scant authority in support of its
proposition that an egregious delay by the sovereign violates due process.” It’s
up to the legislature, not the judiciary, to abolish or modify the doctrine of
nullum tempus (no limitations period runs against the state). Even if the court
agreed that, at some point, nullum tempus must yield to due process, it couldn’t
decide a laches-equivalent defense on a motion to strike. “The defendant is not
precluded from raising due process concerns to temper the court’s consideration
of the monetary relief sought by the plaintiff if the case reaches that
juncture.”

from Blogger http://tushnet.blogspot.com/2025/12/thorough-opinion-allows-cts.html

National Institute of Family and Life Advocates v. James,
— F.4th —-, 2025 WL 3439256, No. 24-2481-cv (2d Cir. Dec. 1, 2025)

Unlike the similar
California proceeding, the district court in NY granted a preliminary injunction
against enforcement of consumer protection law against evidence-free “abortion
reversal” claims, because there weren’t allegations of commercial benefit from
promoting those claims. “The NIFLA plaintiffs are non-profit, faith-based
organizations that have made, and seek to continue to make, statements
regarding abortion pill reversal.” At this stage, they were likely to succeed
on their First Amendment claim because their APR-related statements are
noncommercial speech. The statements were religiously, not economically,
motivated; the NIFLA plaintiffs didn’t provide APR and only refer individuals
to third-party providers who could then administer APR; and they received no
remuneration for their services, including no referral fees or commissions. The
NIFLA plaintiffs didn’t charge for access to APR “information” or any of their
pregnancy-related or parenting services.

“To hold otherwise could potentially subject a sweeping
range of non-profits to regulation of their speech for providing the public
with information and resources concerning critical services.” E.g., abortion information,
LGBT rights groups in states that ban in-state gender-affirming care, or “a
group that matches immigrants with organizations providing access to
employment, English language classes, or immigration legal services.” “Expanding
commercial speech in a way that covers public statements made by these types of
organizations would push the commercial speech doctrine far beyond its ‘core’ of
regulating commercial transactions.”

The AG argued that the speech should be considered
commercial because “someone must bear the cost” of APR “be it insurance, the
medical provider, or a charity,” and that the NIFLA plaintiffs offer services
in the “stream of commerce” that have commercial value. “However, this would be
true of any non-profit providing information, free services, and access to
third-party providers; those services will inevitably have some commercial
value and eventually someone will have to be paid for them.”

The AG also argued that “consumers will likely be led to
believe that the NIFLA plaintiffs will arrange for them to receive [the APR
protocol] because their intended statements invite consumers to access a
network of physicians who are willing and able” to provide it, thus making the
statements analogous to ads for other medical services. But the cases cited by
the AG involved medical procedures or products offered in exchange for money. The
NIFLA plaintiffs allege that they receive no direct or indirect payment for the
services they provide or referrals they make. “Moreover, there is no evidence
in the record, at this stage of litigation, to suggest that the NIFLA
plaintiffs gain other types of economic benefits by engaging in this speech,
such as an increased customer base or a capital increase through fundraising.”
[If soliciting for nonprofits is noncommercial speech, why would ordinary
fundraising be commercial speech as to statements about what the nonprofit does?]

The court emphasized that “no factor, including the
speaker’s motivation, is dispositive to the noncommercial speech inquiry.” But
it wasn’t just ideological motivation at issue here: the NIFLA plaintiffs were
actually not providing or charging for services or getting direct or indirect
compensation for their referrals.   

from Blogger http://tushnet.blogspot.com/2025/12/abortion-pill-reversal-proponents.html