City of New York v. Exxon Mobil Corp.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 69-78, 109-134, 162, 163, 177-180, 193-196, 212-214, 222-223 were read on this MOTION TO DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 008) 86- 103, 108, 166, 167, 181-190, 218-220, 222-223 were read on this MOTION TO DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 009) 79- 84, 107, 164, 165, 191, 192, 215-217, 222-223 were read on this MOTION TO DISMISS. DECISION + ORDER ON MOTIONS Plaintiff, the City of New York (“Plaintiff” or the “City”), commenced this action by filing the Summons and Verified Complaint on April 22, 2021. NYSCEF Doc. No. 1 (Summons and Compl.). Plaintiff alleges that Defendants ExxonMobil Corporation and ExxonMobil Oil Corporation (together, “Exxon”), BP p.l.c. and BP America Inc. (together, “BP”), Royal Dutch Shell P.L.C and Shell Oil Company (together, “Shell”) (collectively, “Defendants”), and the American Petroleum Institute (“API”)¹ engaged in deceptive trade practices under New York City’s Consumer Protection Law (“CPL”), codified at N.Y.C. Administrative Code §20-700 et seq., by systematically misleading New York City (“NYC”) consumers about the environmental impact of their fossil fuel products and their commitments to renewable energy. The City alleges two causes of action² against Defendants: (1) violation of the CPL by misrepresenting the purported environmental benefit of their fossil fuel products, and failing to disclose the attendant climate change risks of these products, and (2) violation of the CPL by engaging in false and misleading greenwashing campaigns. Id.

76-92. The City requests that Defendants be permanently enjoined, pursuant to N.Y.C. Admin. Code §20-703(d), from engaging in any acts that violate the CPL; an award of civil penalties in an amount as authorized per violation of the CPL, pursuant to N.Y.C. Admin. Code §§20-703(a), (b); and the costs of this action and reasonable attorneys’ fees pursuant to N.Y.C. Admin. Code §20-703(c). Relevant to the instant action is the City’s prior suit against five fossil fuel companies, including Defendants in this action, seeking recovery for damages caused by global warming pursuant to state tort laws for public nuisance, private nuisance, and trespass. See City of New York v. BP P.L.C. et al., 325 F. Supp. 3d 466 (S.D.N.Y. 2018), aff’d City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) (“SDNY Action”). In that case, the District Court dismissed the action on the pleadings with prejudice concluding that, inter alia, federal law preempts the City’s state law claims. On April 1, 2021, the Second Circuit affirmed, holding that issues such as global warming and emissions invoke questions of federal and foreign policy. Approximately three weeks later, the City commenced the instant action, effectively re-purposing many of its allegations in the dismissed action to assert a claim under the CPL. Compare Compl. with NYSCEF Doc. No. 75 (Am. Compl., City of New York v. BP P.L.C, et al., 18-CV-182-JFK). Defendants removed this action to the United States District Court for the Southern District of New York on May 28, 2021, and the City moved to remand. NYSCEF Doc. No. 4 (Notice of Removal). The case was stayed for approximately two years, and subsequently remanded to the Supreme Court of the State of New York, County of New York on May 8, 2024. NYSCEF Doc. No. 6 (Notice of Remand). Before the Court are Defendants’ Motions to Dismiss the Complaint pursuant to CPLR §§3211(a)(5), (7), (8), and 3211(g).³ In their respective Motions to Dismiss, Defendants argue that (a) the Court lacks personal jurisdiction over claims based upon statements made outside of New York under CPLR §3211(a)(8); (b) the allegations fail to state a claim for violations of the CPL under CPLR §3211(a)(7); (c) the City’s claims violate the First Amendment where it seeks to regulate speech on matters of public concern; (d) the Complaint should be dismissed pursuant to New York’s Anti-SLAPP statute, codified at CPLR §3211(g); and (e) pursuant to CPLR §3211(a)(5), the City’s claims for statements that predate April 22, 2018, should be dismissed as time-barred and statements that predate January 9, 2018 — when the SDNY Action was filed — are barred by res judicata. The Court held oral argument on these Motions on November 1, 2024. NYSCEF Doc. No. 210 (11/1/24 Tr.). For the reasons stated below, Defendants’ Motions are granted and the City’s Complaint is dismissed in its entirety. The Complaint fails to state a claim for violations of the CPL for two predominant reasons. First, the City’s allegations that NYC consumers are climate conscious, yet are being misled by Defendants’ failure to disclose that fossil fuels cause climate change is not sustainable because the City propounds that the connection between fossil fuels and climate change is publicly known information. Second, the City has not sufficiently pled that Defendants’ alleged greenwashing campaigns, involving statements about clean energy and alternative energy sources, are “made in connection with the sale” of a consumer good (i.e., fossil fuel products) in NYC, as required under the CPL. The Court further determines that claims for statements that predate April 22, 2018 are time-barred. I. Relevant Factual and Procedural Background The following facts and allegations are taken from the Verified Complaint and Appendix. NYSCEF Doc. No. 1 (Compl.), 2 (App.). Defendants BP, Shell, and Exxon are three of the largest, multinational oil and gas companies engaged in the exploration, production, manufacturing, and transportation of fossil fuel products. Compl.