A SLAPP is a SLAPP unless it is not a SLAPP: The SJC Changes The Duracraft Two-Pronged Anti-SLAPP An

The Massachusetts Supreme Judicial Court issued two anti-SLAPP decisions today and significantly changed ("augmented") the two-pronged anti-SLAPP analysis it adopted in 1998 in Duracraft Corp. v. Holmes Prods. Corp.

Before today, it was fairly wide accepted that:

(1) anti-SLAPP analysis was conducted on a claim by claim basis, i.e., the initial question was whether any single claim was based solely on petitioning activity and, if so, if the petitioning activity was devoid of a reasonable factual or arguable legal basis; and

(2) if a claim was based solely on petitioning activity, the only way (and virtually impossible way) to overcome an anti-SLAPP motion was to prove, by a preponderance of the evidence (without discovery and on paper only) that the petitioning activity was devoid of a reasonable factual or arguable legal basis.

Then came Blanchard v. Steward Carney Hosp., Inc. The decision has a little something for everyone. The background of the case is discussed here and here.

The two most pivotal points from today's decision are:

(1) claims as alleged by plaintiffs are no longer taken as they are pled; if a claim could have been pled separately as two or more claims, with any claim based solely on petitioning activity, then an anti-SLAPP movant can meet its burden of showing that a claim (or a hypothetical separate claim) is based solely on petitioning activity;

BUT

(2) a non-moving party can defeat an anti-SLAPP motion even if a claim (or the hypothetical claim) is found to be based solely on petitioning activity by showing EITHER that the petitioning activity is devoid of a reasonable basis in fact or arguable basis in law OR that its claim (seen as a whole - perhaps as pled?) was not brought to chill petitioning activity.

This is a significant departure from Duracraft both in favor of moving parties and i n favor of non-moving parties, all in an effort to balance competing constitutional rights. Time will tell if this helps litigants and courts navigate the anti-SLAPP maze that is Massachusetts law or only complicates it further.

In Blanchard there was a defamation claim based both on statements to the Boston Globe and in an internal email. The trial court and the SJC found that the Boston Globe statements were petitioning activity and the email was not. The SJC agreed that since the claim could have been alleged as separate defamation claims, one based on the Boston Globe statements and one based on the email, the defendants met their burden of showing that the hypothetical defamation claim based only on the Boston Globe statements was "based solely" on petitioning activity.

The anti-SLAPP motion was properly denied as to the hypothetical separate claim based on the email statements.

With respect to the Boston Globe statements, the SJC thus remanded and the plaintiffs now must attempt to show that the Globe statements are without reasonable basis in fact or arguable basis in law or "failing that" that their claim "viewed as a whole" (as alleged, apparently, to include both the Globe and email statements) was not aimed at chilling petitioning activity. If they can make either showing, the motion will be denied. If not, it will be allowed as to the Globe statements portion of the defamation claim.

477 Harrison also issued today. In that case, which is also discussed in more detail here, the SJC found that the moving party had established that an abuse of process claim, but not a 93A claim, was based solely on petitioning activity. The Court noted that while the trial court had not reached the second phase of the anti-SLAPP analysis, it was clear from the record that only some of the petitioning activity that made up the abuse of process claim could be found to be without basis in fact or law (noting that before Blanchard, this meant that the non-moving party could have proceeded on the abuse of process claim, but only as to the petitioning activity that was without basis).

BUT, the Court applied Blanchard and remanded to allow the non-moving party to show that the abuse of process claim as a whole was not filed to chill petitioning activity.

For more - Join us at the Boston Bar Association on June 6, 2017 at 12:30 for "SLAPP HAPPY: Tool and Tips to Navigate the Massachusetts anti-SLAPP Maze"

Register here.

And stay tuned. The fun never ends.

#antislapp #SJC

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