Allowing the Attorney General to obtain nationwide injunctive relief would violate this core prohibition. By imposing such a ban, New York would be regulat- ing corporations created by, located in, and subject to the jurisdiction of other states—effectively extending the Martin Act and Section 63(12) to every other state in the country. The Dormant Commerce Clause protects the right of each state to decide for itself who may participate in the securities industry, or serve as direc- tors or officers of corporations, within that state.

at ir 103. Plaintiff bases its Executive Law 63(12) claim on alleged violations of: the Sherman Act, the Donnelly Act, "state antitrust laws throughout the United States" and N.Y. Exec. 63(12) itself. Amend.

Nor is an officer or director bar authorized by Executive Law § 63(12), which permits only injunctions of “fraudulent or illegal acts.” N.Y. Exec. Law § 63(12). In permitting NYAG to proceed with its pursuit of injunctive relief not authorized by those statutes, the motion court purported to rely on this Court’s decision in People v. McCann, 3 N.Y.2d 797 (1957).

Prior to this CID’s issuance, the New York Attorney General had also exercised his traditional state law powers to investigate whether Exxon had violated New York’s securities, business, and consumer fraud laws by making false or misleading statements to investors and consumers concerning climate change related risks and their effects on Exxon’s business. See N.Y. Exec. Law § 63(12), N.Y. Gen. Bus. Law § 349; id. § 352 et seq. As part of this investigation, the New York Attorney General issued a subpoena to Exxon requesting documents relevant to his inquiry.

2 See, e.g., N.Y. Gen. Bus. Law § 347 (antitrust violations); N.Y. Gen. Bus. Law § 358 (securities fraud violations); N.Y. Exec. Law § 63(2) (when required by governor); N.Y. Exec. Law § 63(3) (when requested by agency charged with executing criminal statute in question); N.Y. Exec. Law § 63(10) (anti-discrimination laws); N.Y. Exec. Law § 63(13) (perjury committed in course of attorney general’s investigation). 3 It is true that the attorney general has a duty to defend the constitutionality of challenged state statutes, N.Y. Exec. Law § 71, and to defend actions in which the state is ‘interested,’ N.Y. Exec. Law § 63(1). But in those cases “the Attorney General does so, not as an adverse party, but as a representative of the State’s interest in asserting the validity of its statutes.”

24 25 26 27 28 NEW YORK'S OPPOSITION TO 11 3:06-cv-06436 PJH DEFENDANTS ' SECOND MOTION To DISMISS M :02-1486 PJH CaseM:02-cv-01486-PJH Document1804 Filed01/09/08 Page16 of 25 1 2 10 1 1 12 13 14 23 IV. NEW YORK EXECUTIVE LAW SECTION 63(12) ENTITLES THE STATE TO RECOVER DAMAGES ARISING FROM DEFENDANTS' ILLEGAL PRICE-FIXIN G The State's Fourth Claim is pleaded under N.Y. Executive Law § 63(12) . This statute provides, in pertinent part, as follows : Whenever any person shall engage in repeated . . . illegal acts or otherwise demonstrate persistent . . . illegality in the carrying on, conducting, or transaction of business, the attorne y general may apply, in the name of the people of the state of New York, for an order . . . directing restitution and damages . . . . (Emphasis supplied) .

. NYOAG issued the Subpoena to Exxon on November 4, 2015, pursuant to the Martin Act, N.Y. Exec. Law § 63(12), and N.Y. GBL § 349. Am. Cmpl.

The NYAG has no authority to issue an injunction on its own. See N.Y. Exec. Law § 63(12) (requiring the NYAG to petition the courts to obtain injunctive relief). The cases that the Insurers previously cited in arguing that the AOD constituted a non-monetary injunctive remedy are inapposite. None of the cases involved AODs; all involved interpretations of court orders.

itrust Litig., 350 F. Supp. 2d 160, 178, 14 See Ala. Code § 8-19-5(27) (2016) (forbidding certain acts or practices relating to deceptive advertisement, representation, and quality of consumer goods or services); La. Rev. Stat Ann. § 51-1401 (2016); Cheramie Serv. v. Shell Deepwater Prod., Inc., 35 So.3d 1053, 1059 (La. 2010) (finding an “extremely narrow” range of prohibited unfair activities and requiring a showing of “fraud, misrepresentation, deception, or other unethical conduct”) (citation omitted); Minn. Stat. §§ 325D.43, et seq. (2016) (listing enumerated prohibited acts involving fraud or deceit); In re New Motor Vehicles Canadian Export Antitrust Litig., 350 F.Supp. 2d 160, 189-90 (D. Me. 2004) (“Minnesota’s Uniform Deceptive Trade Practices Act prohibits a variety of acts, but all involve deception or misrepresentation.”); Neb. Rev. Stat. Ann. § 87-301 (West 2016) (prohibiting specific enumerated actions, all of which involve the misrepresentation of goods or services); N.Y. Exec. Law § 63(12) (2016) (declaring unlawful “persistent fraud or illegality” in the course of conducting business); 73 Pa. Const. Stat. Ann. § 201-2(4) (West 2016) (prohibiting “fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding”); In re New Motor Vehicles, 350 F. Supp. 2d at 200 (finding the Pennsylvania consumer protection statute “requires fraud or deception” and allegations of conspiracy to prevent less expensive Canadian vehicles from entering the American market insufficient to state a claim); Tenn. Code Ann. § 47-18-101 (West 2016); Messer Griesheim Indus., v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 469 (Tenn. Ct. App. 2003) (“[T]here must be a deceptive act by the defendant before the defendant can be liable under the [Tennessee Consumer Protection Act.]”); Wash. Rev. Code Ann. § 19.86.020 (West 2016); Segal Co. (Eastern States), Inc. v. Amazon.com, 280 F.Supp.2d 1229, 1232 (W.D. Wash. 2003) (“[F]or conduct to be an unfair or deceptive practice und

Inc., 18 N.Y.3d 341, 349-50 (2011). To that end, the NYOAG issued a document subpoena (“Subpoena”) to Exxon on November 4, 2015, pursuant to the Martin Act, N.Y. Gen. Bus. Law, article 23-A (securities fraud statute); N.Y. Exec. Law § 63(12) (general business fraud); and N.Y. Gen. Bus. Law § 349 (consumer fraud). The Subpoena seeks, among other things, documents and information concerning whether and how Exxon publicly disclosed its own conclusions about the impact, risk, and economic significance of climate change on the company’s business operations and financial reporting.