2016 Anti-SLAPP Roundup: An Epic Mish Mash in State and Federal Court*

2016 was another big year in anti-SLAPP litigation – with the Appeals Court issuing a slew of Rule 1:28 decisions, the Supreme Judicial Court granting Direct or Further Appellate Review to consider issues ranging from the proper procedure for appealing the allowance of an anti-SLAPP motion to whether the Duracraft Corp. v. Holmes Prods. Corp. “no substantial basis” test allows parsing and dismissal of portions of a single claim, and at least one federal district court judge altering the Supreme Judicial Court’s test significantly as applied to anti-SLAPP motions filed in federal court to avoid Seventh Amendment jury right problems.

And 2017 already promises to continue the life-of-its-own trend of anti-SLAPP litigation.

Be warned, this is a long post.

Spoiler Alert: The anti-SLAPP statute remains constitutional as is in state court (so far), but not necessarily in federal court; abuse of process claims are still confusing; and, above all else, there is no such thing as a sure thing in anti-SLAPP law.


This is what happened last year. More or less.

At the SJC, the Court issued a decision in Van Liew v. Stansfield, confirming that an appeal from the allowance of an anti-SLAPP motion (just like an interlocutory appeal from the denial of an anti-SLAPP motion) is always taken to the Appeals Court, and that defendant’s application for harassment order, although successful initially on an ex parte basis, was still devoid of reasonable basis because it complained only of protected speech, mostly political speech, and was vacated after an evidentiary hearing.

The Court also granted FAR and heard oral argument in Blanchard v. Steward Carney Hospital, Inc., in which the trial court denied an anti-SLAPP motion to dismiss defamation claims based on statements the hospital and its president made to the press and in internal emails during the course of a regulatory review, and the Appeals Court reversed in part, parsing the defamation claim and dismissing so much of it as was based on press statements. The Appeals Court in Blanchard reasoned the press statements were made in the context of taking action to satisfy regulators and retain the hospital’s license and thus petitioning while the emails were not, and the defamation claim could have been brought as separate defamation counts based on the separate statements.

And the Court granted DAR in 477 Harrison Avenue, LLC v. Jace Boston, LLC (SJC-12150), which raises the questions, among others, of whether the Appeals Court’s decision in Keystone Freight Corp v. Bartlett Consolidated, Inc., (which held that abuse of process claims can survive anti-SLAPP challenges where evidence of ulterior motive is supported by conduct independent of the petitioning activity) can be squared with the SJC’s repeated rulings that motive is irrelevant in the first phase of the anti-SLAPP analysis, and that only a substantial basis other than petitioning activity can save the claim, where the only conduct that could possibly constitute an abuse of process is, well, use of process (i.e., petitioning). The case also may (or may not) also address the issue of whether the preponderance standard applied to the burden on the non-moving party violates the Article XV jury trial right. The SJC heard argument in 477 Harrison Avenue this morning. If you missed it, you can watch the argument once it is added to the archives.

The Appeals Court also issued a series of Rule 1:28 decisions that confirmed (roughly):

  • He said/she said affidavits will result in anti-SLAPP dismissal. “Even when the only evidence in support of a factual claim underpinning petitioning activity is the affidavit of the defendant [the party seeking dismissal], . . . notwithstanding his own affidavit to the contrary, a plaintiff will be unable to meet his burden of demonstrating that the petitioning activity had no reasonable basis in fact. . .” Agin v. Plamondon, 15-P-992 (Rule 1:28 Decision) (Aug. 5, 2016). The Agin panel cited the SJC’s 2009 decision in Benoit v. Frederickson as confirming this. And that, of course, is one of the fundamental problems with Benoit.

  • Majority rules rule. Agin again. Plaintiff appealing allowance of an anti-SLAPP motion to dismiss argued the statute was void for vagueness, and violated plaintiff’s own right to petition, to due process and to a jury trial under article XV of the Massachusetts Declaration of Rights. The panel disposed of the vagueness challenge by merely stating it was “clear enough” as interpreted in Benoit. Plaintiff’s other constitutional arguments hearkened back to Justice Cordy’s concurring opinion in Benoit, raising constitutional concerns about the need for credibility determinations to deal with competing affidavits on the second phase of the anti-SLAPP analysis. To that, the panel said, this case does not raise that issue, but if it did, that was only a concurring opinion and so the panel would still affirm dismissal and leave it to the SJC to decide. Which it won’t, at least not in this case. No Dar/No FAR.

  • If you do something bad and then sue someone, and they sue you back, the anti-SLAPP statute might apply. Or it might not.

In Allied Waste Servs. of Massachusetts, LLC v. Imperial Distributors, Inc., 15-P-966 (Rule 1:28 Decision) (Sept. 16, 2016), the Court affirmed the denial of an anti-SLAPP motion to dismiss an abuse of process counterclaim filed by defendant KLT Industries, Inc. after discovery. Allied and KLT were competitors in the waste removal and recycling business. Allied had a contract with Imperial to provide such services, and the contract contained successive, three-year, auto-renewed terms and a liquidated damages clause. After three years, Imperial called it quits with Allied to get the same service for less from KLT, but Allied refused to go, refused to remove its equipment, forbid Imperial from doing so and reminded Imperial of the liquidated damages provision. Imperial then had Allied’s equipment removed and hired KLT. Allied sued Imperial and KLT. KLT did its due diligence and then counterclaimed against Allied for abuse of process and 93A violations. The Court affirmed denial of Allied’s anti-SLAPP motion, finding that KLT’s allegations were aimed at Allied’s “broader effort to interfere with competition that arise substantially from alleged conduct [refusing to remove equipment, and attempting to force Imperial to reconsider switching to KLT particularly in light of the liquidated damages provision] that preceded and was separate from the filing of the lawsuit.

But then in Knapp v. Powicki, 15-P-798 (Rule 1:28 Decision) (Sept. 29, 2016), the panel affirmed allowance of an anti-SLAPP motion to dismiss a malicious prosecution claim, where the plaintiffs had pursued a baseless claim of a right of first refusal against the defendant allegedly to force her to transfer her property to them, had trespassed on her property and cut down a tree, threatened to sue her, set up a camera to take pictures of her in her home and created a dirt pile feet from her house. The Court found that “even if these facts could be considered evidence of malice,” the trial court judge had found that the plaintiff had a good faith belief in the right of first refusal, the claim had survived summary judgment, and a jury (although ruling against them on the question of whether they had an easement) found that they had a good reason to believe the cut down tree was on their own property (nothing about the cameras or dirt pile, though). FAR was since denied.

Given the uncertainty of how an abuse of process claim may play out, let’s hope 477 Harrison Avenue brings some clarity to the situation.

  • Anything worth having is worth fighting for (or, don’t give up 2/3 of your attorneys’ fees without a fight). The panel in Franks v. Mitchell, 15-P-858 (Rule 1:28 Decision) (Jul. 5, 2016) vacated the trial court’s anti-SLAPP fees order and remanded the matter to the trial court to try again. The trial court had allowed an anti-SLAPP motion, highly complimented the moving party’s lawyers’ work, and then cut their time by more than two-thirds, and reduced their hourly rates, all without explanation or findings, when awarding their fees. The panel said no go and instructed the trial court on remand to consider the “deterrent and reimbursement” purposes of the anti-SLAPP statute, the important underlying interests it seeks to protect, and the public interest in attracting capable counsel which is undermined by “parsimonious fee awards.” The panel left room for the trial court to consider typical fee-shifting factors, but warned that the judge should support any reduction of hourly rates with sufficient findings.

  • Bad-mouthing your ex (justified or not) to your friends at a party is not petitioning activity. In Girard v. MIT, 14-P-1800 (Rule 1:28 Decision) (Aug. 11, 2016) Mr. Girard sued Dr. Girard (his ex-wife) and MIT (where she worked) for defamation, among other things, based on statements Dr. Girard made first privately to her friends at a private party and then to police. The trial court allowed Dr. Girard’s anti-SLAPP motion, finding that while her statements to friends were not petitioning activity, those statements were not a substantial basis for Mr. Girard’s claims because they did not cause the harm he sued over (apparently, her statement to the authorities did). On appeal, the panel said, hold up, and reversed. The panel explained, “The motion judge’s consideration of the element of causation at this early stage was premature.” Since Dr. Girard made her statements privately to her friends with no expectation that they would contact law enforcement on her behalf, even if they “mirrored” statements later made to police, they were not made “in connection with” a pending government review or proceeding. It’s not over yet. FAR application pending.


It was also a bit of a mixed bag this past year in federal court anti-SLAPP practice in the USDC-Mass. Without trying to capture each nuance, reading or interpretation, here are some highlights.

While all of the district court judges who ruled on it this past year and, in fact, all who have ruled on the issue since the First Circuit’s decision in 2010 in Godin v. Schencks, 629 F.3d 79, 85 (1st Cir. 2010) (holding Maine anti-SLAPP statute applies in federal court), agree that the Massachusetts statute applies in federal court, one district court judge (Gorton, J.), ruled that the statute does not apply to federal law claims such as civil rights claims under 42 U.S.C. §1983, Jobs First Independent Expenditure Political Action Committee v. Coakley, 14-14338-NMG (Nov. 11, 2016), and two other judges issued starkly contradictory rulings about the constitutionality of applying the statute, as the SJC has interpreted it, in federal court.

Judge Casper first ruled in Steinmetz v. Coyle & Caron, Inc., 15-CV-13594-DJC (Jul. 29, 2016) that anti-SLAPP statute is just fine, it is not unconstitutional and it applies in federal court. Steinmetz was a landowner in Cohasset who submitted an application to the Cohasset Conservation Commission to build a single family home on his property. A local preservation group opposed. Coyle & Caron, Inc., a landscape firm, prepared renderings of plaintiff’s proposed construction and submitted and presented the renderings to the Commission, at least one of which also made its way to the preservation group’s FaceBook page. After the Commission rejected plaintiff’s application, he sued the landscape firm, claiming it had worked with the preservation group to prepare and present false, fraudulent and defamatory renderings of his proposed construction. The firm filed an anti-SLAPP motion to dismiss, which the plaintiff opposed by arguing the anti-SLAPP statute does not apply in federal court (rejected: see Godin), does not apply to “disinterested expert witnesses” (rejected: see hodgepodge of case law from SJC and Appeals Court) and is unconstitutional because it violates plaintiff’s jury right under the Seventh Amendment and state law. Judge Casper rejected the constitutionality challenge, citing the fact that the SJC has ruled on the statute several times and thus “implicitly” found it constitutional.

On the constitutionality question, Judge Young begged to differ. In Hi-Tech Pharmaceuticals, Inc. v. Cohen, 16-10660-WGY (Sept. 22, 2016), Judge Young raised the question and requested briefing from the parties on whether enforcement of the anti-SLAPP statute, as interpreted by the Supreme Judicial Court, might violate the Seventh Amendment jury trial right in civil cases if applied in federal court, concluded it would, and then reduced the burden of proof to be applied to the non-moving party on the second prong of the anti-SLAPP test in federal court to avoid an unconstitutional result. Judge Young set out the two-step anti-SLAPP analysis: First, a moving party must “make a threshold showing through pleadings and affidavits that the claims against it are based on . . . petitioning activities alone. . .” If the moving party makes this showing, the burden shifts to the non-moving party to “demonstrate that the defendant’s petitioning conduct lacked any reasonable factual support of any arguable basis in law.” (quotations omitted). With respect to this second phase of the analysis, Judge Young explained:

The precise burden on a plaintiff at this step is a somewhat contentious matter and is of great concern to this Court. In Baker v. Parsons, 434 Mass. 543 (2001), the Supreme Judicial Court held that the applicable standard at this stage is a fair preponderance of the evidence -- that is, "to defeat a special motion to dismiss made pursuant to [the Massachusetts anti-SLAPP statute], the nonmoving party . . . must show by a preponderance of the evidence that the moving party's petitioning activities were devoid of any reasonable factual support or any arguable basis in law." Id. at 544.

Id. at pp. 6-7 (footnotes omitted).

The problem, as Judge Young framed it, is that to determine if the non-moving party has met a preponderance standard that the moving party’s petitioning conduct lacked any reasonable basis in fact or law would require the Court to decide which of the affidavits submitted by the parties in connection with the motion it believed. Id. at 10-11. This would “require [the] Court to make factual findings and credibility determinations that the Constitution reserves to a properly constituted jury of the people” and would “necessarily impinge on the parties’ Seventh Amendment right to a jury trial.” Id.

To avoid this type of unconstitutional application of the statute, Judge Young thus ruled that to overcome a special motion to dismiss pursuant to the Massachusetts anti-SLAPP statute, the non-moving party “need make only a prima facie showing that the defendant's petitioning conduct lacked a reasonable basis in law or fact.” Id. at p. 12 (“Imposing a low bar on plaintiffs at the second step of the anti-SLAPP analysis also comports with the purpose of such legislation, which is only to prevent meritless suits from imposing significant litigation costs and chilling protected speech.” (quotations omitted)).

Judge Young recognized that limitations on jury trials created by anti-SLAPP statutes are the product of state jurisprudence, and even dropped a footnote expressing the poignancy of the issue here given the fact that Massachusetts has long prided itself on providing even greater protections for citizens than the federal bill of rights, but noting that the right to trial by jury right nevertheless is seemingly somewhat less robust in state court (referring to the anti-SLAPP statute and 93A actions).

While this may be true in 93A cases and for certain other statute-created causes of action, article XV of the Massachusetts Declaration of Rights (this state’s counterpart to the Seventh Amendment which the Massachusetts Courts interpret in line with Seventh Amendment jurisprudence) grants and protects a broad jury right in civil cases excepting cases in equity and other types of claims traditionally reserved to judges.

The interesting question then is what will happen when the SJC entertains a ripe constitutional challenge under article XV. The Appellee in 477 Harrison raised this issue (relying heavily on Judge Young’s opinion in Hi Tech) but it is unclear whether the issue is properly before the Court (Appellants say it was waived), and whether the SJC will reach it at all.

Two other points of interest from the D. Mass decisions.

Press Statements & “Campaign Activities”. In Jobs First, Judge Gorton also waded into the murky abuse of process waters, refusing to apply the anti-SLAPP statute to dismiss the abuse of process claim brought by plaintiffs a political action committee because it alleged “other conduct” to support the claim, namely the defendant state representative’s statements to the press and press release that discussed his application for criminal complaint under G.L. c. 56 §42 (later deemed unconstitutional on its face by the SJC) against the PAC after it released brochures and statements criticizing his legislative record in connection with his (later successful) re-election. Judge Gorton stated, “Just as the SJC removed 'aggressive lawyering' from the protection of § 59H, so too does this Court conclude that Mannal's campaign activities are not protected by [the anti-SLAPP statute].” Id. at p. 10.

Commercial Motives. And in Shire City Herbals, Inc. v. Mary Blue d/b/a Farmacy Herbs et al, 15:30069-MGM (May 12, 2016), Judge Mastroianni, rejected plaintiff’s argument based on the SJC’s decision in Cadle Co. v. Schlichtmann, 448 Mass. 242 (2007) , that defendants’ activities were commercially motivated and, therefore, outside of the ambit of the anti-SLAPP statute. In Shire City Herbals, plaintiff had obtained federal registration for the trademark FIRE CIDER®, which it used to describe and market a tonic made from apple cider vinegar and other ingredients. Plaintiff sued defendants, individuals who sold similar tonics referred to, generically, as “fire cider” after they took steps to cancel the trademark registration and to boycott plaintiff, including through their websites and Facebook pages on which they also promoted and sold their competing products. Mindful of the anti-SLAPP’s broad scope and protection, and viewing the defendants’ activities in their “over-all context”, the Court concluded that defendants’ “goal from the start was to cancel the Fire Cider Mark, and their activities took place in the context of achieving that goal. . . [their] actions and statements in this case are, at the very most, petitioning activities with some commercial effects, and are not commercial activities in and of themselves.”

EPILOGUE: Expected 2017 Anti-SLAPP Decisions and the 130 Day Rule

More anti-SLAPP decisions are already on the horizon for 2017. The SJC is expected shortly to issue the Blanchard decision. The 130 day rule calls for a decision within 130 days of argument, or in Blanchard, by around St. Patrick’s Day, (give or take). Of course, the Court may and not infrequently does “waive” the rule in certain cases, so the deadline is only as firm as the Court’s conviction to stick to it. Nevertheless, the clock, such as it is, has also now started ticking on 477 Harrison Avenue, in which the Court heard argument this morning.

Never a dull moment. Relatively speaking.

*This is not legal advice in any way shape or form. It may or may not even be correct or complete. It is for informational purposes only and should not be relied on for any purpose.

#appealscourt #SJCWatch #petitioningactivity #antiSLAPP

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