SJC’s Trend: Preserve Meritorious Anti-SLAPP Suits
A SLAPP suit (a strategic lawsuit against public participation) discourages and intimidates individuals from exercising their constitutional right of petition the government. The Massachusetts Legislature enacted the anti-SLAPP suit law, G. L. c. 231, § 59H, primarily – though not exclusively – to protect “citizens of modest means” who speak out against larger, more powerful entities. The law allows a defendant to bring an anti-SLAPP motion to dismiss to combat a SLAPP suit brought to chill the litigant’s exercise of his or her constitutional right to petition the government of his or her own behalf. If successful, the anti-SLAPP motion to dismiss results not only in dismissal of the SLAPP suit but also in an award of attorneys’ fees for achieving that result.
In two recent decisions, the Supreme Judicial Court appears to have shifted the balance of anti-SLAPP jurisprudence between protecting legitimate petitioning activities by early dismissal of SLAPP suits versus protecting the right to litigate potentially meritorious defamation claims seeking damages arguably arising from those petitioning activities.
In Cardno Chemrisk, LLC v. Foytlin, 476 Mass. 479 (2017), an environmental risk consulting firm sued for defamation two environmental activist bloggers – both single mothers – who wrote a Huffington Post internet blog post entitled “ChemRisk, BP and Purple Strategies: A Tangled Web of Not-So-Independent Science,” criticizing the scientific consulting firm that BP had retained to assess the toxic effects of the oil spill on cleanup workers, after the BP’s Deepwater Horizon oil rig suffered a 2010 catastrophic explosion causing approximately 4.9 million barrels of oil to flow into the Gulf of Mexico, about forty miles off the coast of Louisiana. The authors of the blog post brought an anti-SLAPP special motion to dismiss seeking to protect their legitimate petitioning activities.
The Superior Court judge denied the motion, concluding that the authors had not met their threshold burden to show under the SLAPP suit statute that the defamation suit was based exclusively on the “exercise of [the defendants’] right of petition under the [C]onstitution,” because the blog post did not concern or seek to advance the authors’ own interests, but rather those of the cleanup workers. The authors immediately appealed (as is allowed on the denial of an anti-SLAPP special motion to dismiss) and the SJC ultimately reversed. The SJC concluded that (a) the authors met their threshold burden for the motion to dismiss because they were engaged in protected petitioning activity, which was the sole basis of the plaintiff’s defamation claim, and (b) on the record before the Court, the environmental risk consulting firm could not show, as is necessary to defeat an anti-SLAPP special motion to dismiss, that the petitioning was devoid of reasonable factual support or arguable basis in law.
The SJC dismissed the consulting firm’s argument that the authors were not exercising their own right to petition, but rather were articulating the grievances of cleanup workers. “The Legislature enacted the anti-SLAPP statute with anti-development activists in mind, many of whom were focused on protecting natural resources,” the court said, and protects those who “advance causes in which they believe.” In Cardno, the SJC concluded that the company’s lawsuit was a “SLAPP” suit directed at individual citizen activists of modest means for speaking publicly about important social and environmental issues.
Because the authors “expressed their own opinions, speaking for themselves and at their own behest,” they established that “they exercised their own right to petition when they wrote the article at issue.” When the authors satisfied their threshold burden, the burden shifted to the consulting firm to defeat the special motion to dismiss by showing, by a preponderance of the evidence, “that the allegations in the blog posting were devoid of any reasonable factual support or arguable basis in law.” The consulting firm failed to do so because it “provided minimal evidence that the [authors] lacked a reasonable basis in fact for the challenged statements.” By contrast, the authors offered detailed affidavits concerning the basis for the challenged statements, including a series of articles appearing in scholarly journals and reputable newspapers, and other Internet blog postings providing factual support for the authors’ characterizations of the consulting firm’s practices. One of the authors even averred that the journal that had published the consulting firm’s study, criticized by the authors in their Huffington Post piece, later retracted the article. Given the consulting firm’s “failure to offer evidence that would establish the absence of any reasonable factual support for the challenged statements, it cannot withstand the defendants’ special motion to dismiss” the firm’s defamation suit brought against the authors.
The SJC remanded the case to the Superior Court “for the entry of a judgment consistent with this opinion and for the award of reasonable attorney’s fees and costs” against the consulting firm. The SJC also invited the authors to “file an appropriate application for appellate fees and costs in this court.”
Protecting Individuals from Reputational Damage
Although the SJC’s decision in Cardno reinforced the strategic importance on an anti-SLAPP special motion to dismiss, in Blanchard v. Steward Carney Hospital, 477 Mass. 141 (2017), the SJC fashioned a new rule under the anti-SLAPP statute by which the plaintiffs in a defamation action may escape an anti-SLAPP dismissal by proving that they did not bring suit “primarily to chill” the defendants’ legitimate petitioning activities.
The Blanchard case arose when, following reports of abuse at the adolescent psychiatric unit (unit) of Steward Carney Hospital, Inc., the then president of the hospital fired all of the registered nurses and mental health counsellors who worked in the unit. He later issued statements, both to the hospital’s employees and to the Boston Globe, arguably to the effect that the nurses had been fired based in part on their culpability for the incidents that took place at the unit. Nine of the fired nurses filed suit against the Hospital, its president, and other affiliates, for defamation (among other claims).
The hospital defendants filed a special motion to dismiss the defamation claim under the anti-SLAPP statute. The Superior Court judge denied the motion, concluding that the hospital defendants had failed to meet their threshold burden of showing that the claim was based solely on their petitioning activity. After the Appeals Court reversed the motion judge’s decision in part, the SJC too the case on further appellate review. The SJC concluded that “a portion of the plaintiff nurses’ defamation claim is based solely on the hospital defendants’ petitioning activity.” As a result, the hospital defendants “satisfied in part their threshold burden” for an anti-SLAPP special motion to dismiss. The SJC then remanded the matter to the Superior Court “where the burden will shift to the plaintiff nurses to make a showing adequate to defeat the motion.”
The goal of the anti-SLAPP framework is to “distinguish meritless from meritorious claims” early in the litigation. Under existing law, the Court recognized, the nurses could overcome the motion to dismiss only if they could “demonstrate through pleadings and affidavits that there is no credible factual or legal basis for the [hospital defendants’] petitioning activities.” But in a case where as here the “classic indicia of a ‘SLAPP suit” are absent, the SJC found that the present legal framework “is not entirely adequate to the task of determining whether the special motion should be allowed.” In other words, the existing framework does not provide adequate means to distinguish between (a) meritless claims targeting legitimate petitioning activity (think Cardno); and (b) potentially meritorious claims with no such goal.
So the SJC fashioned a new Blanchard rule (also known as the “augmented Duracraft analysis”) to avoid “the expedited dismissal of a nonmoving party’s meritorious claim that does not seek primarily to chill protected petitioning activity, i.e., non ‘SLAPP’ suits.” Without “considering the nonmoving party’s claim, … a court cannot adequately assess whether it is a meritless ‘SLAPP’ suit aimed primarily at chilling a special movant’s right to petition or, instead, a valid exercise of the nonmoving party’s own right to petition.” This new rule gives the nurses the opportunity to prove that their suit is meritorious – that it is primarily aimed at seeking damages for defamation, not to chill the hospital’s speech. The SJC remanded the case to the lower court to conduct this inquiry in light of the totality of the circumstances surrounding their claim. (Update: On remand, the lower court agreed that the nurses were in fact motivated to seek redress for defamation, not to interfere with any petitioning activities.)
The New Anti-SLAPP Paradigm
Given the Blanchard’s new rule, parties bringing anti-SLAPP motions will find it more difficult to get defamation claims dismissed early on as opponents muster proof to show that the suit was brought not to chill a legitimate exercise of the right to petition but to vindicate damage caused by defamatory statements. It remains to be seen whether and how this new and uncharted standard will ultimately promote the Legislature’s goal to provide for speedy dismissal of lawsuits brought to intimidate opponents’ rights to free speech. See 477 Harrison Ave., LLC v. Jace Boston, LLC, 477 Mass. 162 (2017) (as a matter of first impression, where adjoining building owner’s abuse of process claim against neighboring building owner was based on both petitioning activity that had a valid basis in law or fact, as well as petitioning activity that lacked such basis, unless adjoining building owner could demonstrate that the entirety of its claim was not a SLAPP suit, it could proceed only on so much of its abuse of process claim as alleged illegitimate process).
The New Anti-SLAPP Test
In Steinmetz v. Coyle Caron, Inc., 862 F.3d 128 (1st Cir. 2017), which concerned defamation claims arising out of a feud between the proponents and opponents of the construction of a new single-family home in Cohasset’s Inner Little Harbor area, the First Circuit was confronted with applying the new Blanchard rule to a case that had already been briefed and argued: “After the parties completed their briefing and presented oral argument before us, Massachusetts law on the anti-SLAPP statute dramatically shifted. … The SJC’s decision in Blanchard, in particular, augmented the previous burden-shifting framework such that the nonmoving party could survive a special motion to dismiss also by establishing that its claims were not “primarily brought to chill the special movant’s legitimate petitioning activities.”
To understand how the new rule affected the case before it, the First Circuit requested and received supplemental briefing from both parties. The First Circuit then wrote: “As we understand Massachusetts law in the wake of Blanchard, then, the filing of an anti-SLAPP special motion triggers the following sequential inquiry”(emphasis added):
First, we ask whether the special movant has shown that the claims against it are based on petitioning activities and had no substantial basis other than or in addition to those activities. If the answer to this question is no, then the special motion must be denied.
Second, the burden shifts to the nonmoving party to show by a preponderance of the evidence that the moving party lacked any reasonable factual support or any arguable basis in law for its petitioning activity, and that the petitioning activity caused the nonmoving party “actual injury.” If the nonmoving party is able to make both of these showings, then the special motion must be denied.
Third, we ask whether the nonmoving party has shown that its own claim — the one challenged by the special motion — is itself colorable or worthy of being presented to and considered by the court, i.e., that it offers some “reasonable possibility of a decision in the nonmoving party’s favor.” If not, then the special motion must be granted.
Fourth, and finally, we ask whether the nonmoving party has shown that the claim was not primarily brought to chill the special movant’s legitimate petitioning activities. If the answer to this question is yes, then the special motion fails. If the answer to this question is no, then the special motion must be granted.
The First Circuit’s helpful guidance will enable parties to litigate and lower courts to decide whether an anti-SLAPP special motion to dismiss should or should not be allowed.
Posted In: Municipal Law