Wednesday, May 31, 2017

Anti-SLAPP gone wild: Massachusetts tightens the reins



The anti-SLAPP cases kept coming from the Massachusetts appeals courts in May.  I posted previously on anti-SLAPP in the Massachusetts Supreme Judicial Court in February.  This posting describes three recent holdings, the middle of which substantially revised—and tightened—the anti-SLAPP qualification analysis.  The next two paragraphs recap some background on anti-SLAPP; skip right down to the cases if you like.  The Massachusetts anti-SLAPP statute is Mass. Gen. L. ch. 231, § 59H.

For a quick recap, “anti-SLAPP” refers to state statutes designed to forestall tort claims in “strategic lawsuits against public participation” (SLAPPs).  The prototypical SLAPP might be a land developer’s suit against environmental protestors for interference with the developer’s prospective economic relations.  The protestors are motivated by First Amendment right to speak and petition and are not acting wrongfully.  So, the logic goes, they should not be tied up in pricey and complex litigation having to assert the First Amendment as an affirmative defense.  Rather, they are entitled to a speedy dismissal.  In various forms and fashion across the states, anti-SLAPP statutes allow expedited process before the trial courts to dispense summarily with cases that ultimately would or should come out in defendants’ favor.

Furthermore for quick recap, I despise anti-SLAPP statutes.  They are yet another crutch for defense lawyers—complementing a broad array of defense privileges in common law and constitutional law—to cloak the perpetrators of defamation, privacy invasion, interference, and other torts in the false light (if you will) of constitutional holy writ.  Through unduly expedited process, anti-SLAPP deprives plaintiffs out of the gate of a fair chance to discover the damning evidence of defendants’ wrongful conduct—evidence often required by the aforementioned broad array of defenses, thus compounding the already ratcheted-up hurdles a plaintiff with meritorious cause must clear.

At ABA meetings, I have heard the defense lawyers of transnational mass media conglomerates speak of anti-SLAPP bills in the same tender timbre one employs to share photos of a newborn.  They are especially fond of anti-SLAPP laws that award attorneys’ fees to the prevailing defendant; imagine that Goliath bill arriving in David’s mailbox.  Such cooing should be evidence enough that the playing field has been unleveled.  And I was a defense lawyer, so I know of whom I speak.

That said, I would be foolish to assert that anti-SLAPP motions don’t often reach just results.  An unlevel playing field does not mean that the winning team is not the better.  I contend instead that anti-SLAPP gives a trial judge too much power to ballpark “right” and “wrong” in the absence of the fair evidentiary confrontation that our adversarial system requires.  These cases illustrate how the Massachusetts appellate courts are struggling to implement the state anti-SLAPP law fairly.

(1) The Case of the Ex-Spouse Who Won’t Let It Go

After what must have been an ugly divorce in the 1990s, Ms. St. Germain was left with a permanent protective order of no contact against her former husband, Mr. O’Gara.  In 2014, after receiving contact via post, St. Germain complained to police that O’Gara had violated the protective order.  Police arrested, charged, and then dismissed charges against O’Gara, who in turn sued St. Germain on various civil theories—breach of contract, abuse of process, malicious prosecution, tortious interference, and intentional infliction of emotional distress—for the police report that had precipitated his arrest.

Holding O’Gara’s civil suit “based entirely on [St. Germain’s] petitioning activity,” the court dismissed the civil suit upon St. Germain’s anti-SLAPP special motion, reversing the superior court.  The court reiterated that petitioning activity under the Massachusetts statute is to be construed broadly, “‘similar in purpose to the protections afforded public officials by the doctrine of governmental immunity’” (quoting precedent).  “Furthermore, § 59H covers petitioning activity regardless of whether it concerns a public or purely private matter.”

The statute first burdened defendant St. Germain, as special movant, with proving by preponderance that O’Gara’s lawsuit was based solely on her police report as petitioning activity, without other substantial basis.  Second, under the burden-shifting procedure of the statute, O’Gara would be compelled to prove by preponderance that St. Germain’s petition “‘(1) … was devoid of any reasonable factual support or any arguable basis in law and (2) … caused actual injury.’”

The trial judge had erred by skipping the first step of the inquiry and justifying discovery upon a “credible claim of injury caused by [St. Germain].”  Rather, first, St. Germain was correct in asserting that O’Gara’s suit concerned her police report solely as petitioning.  O’Gara had asserted that St. Germain was motivated by hostility, besides petitioning.  But the court concluded that whether or not she bore such motive was immaterial to the purely petitioning nature of the report.  Second, St. Germain was reasonable in believing her police report legally founded, despite the later dismissal of charges.  I.e., the police report was not a sham.

The case is O’Gara v. St. Germain, No. 15-P-1711 (Mass. App. Ct. May 11, 2017) (Justia).


Four incidents of alleged abuse or neglect of patients in a unit of the Steward Carney Hospital in Boston resulted in a mass dismissal of unit staff, including nurses.  Discussing the employment shake-up publicly in email to hospital staff and in statements to The Boston Globe, with a state investigation still underway, hospital administrators were vague on particulars.  The state later blamed three incidents on only one mental health counselor, and the fourth incident on staff, the latter conclusion the subject of ongoing legal contest.  Plaintiff nurses sued the hospital for defamation, and the hospital responded with an anti-SLAPP special motion. 

The Supreme Judicial Court, per Justice Barbara Lenk on May 23, reached a mixed result and remanded, furthermore finding occasion to tighten the requirements for an anti-SLAPP motion to succeed. 

Again illustrating the broad construction of petitioning activity, on the first step of the anti-SLAPP test, the hospital successfully asserted that the nurses’ lawsuit concerned statements to the press solely as protected petitioning, because the statements were “‘made to influence, inform, or at the very least, reach governmental bodies—either directly or indirectly’” (quoting precedent).  “The key requirement of this definition of petitioning is the establishment of a plausible nexus between the statement and the governmental proceeding.”  The Court held that statements to the Globe passed muster as indirectly aimed at state investigators  However, email to hospital staff, intended only for internal circulation, did not pass the test.

Here the Court steered off the road.  Initially the Court was flummoxed: what to do with a split outcome between allegedly defamatory statements?  Recall that the defendant must show that plaintiff’s suit concerned “solely” defendant’s petitioning activity.  What happens when some statements are petitioning and some are not?  Perhaps the anti-SLAPP motion must fail, because the defendants’ activity was not, then, purely petitioning.  Or perhaps the petitioning activity alone, here the Globe statements, advance to the second step of the test, burden shifting for the plaintiff to prove sham.  If plaintiff cannot prove sham petitioning, defamation might be dismissed in part.  The design of the complaint cannot be dispositive, for plaintiffs could evade anti-SLAPP by parsing counts.

That issue, however, proved to be only the crest of a hill concealing the drop off of a cliff.  For then the Court plunged into angst over the very enterprise of the anti-SLAPP analysis.  If a defendant cannot prove that the lawsuit is about solely petitioning activity, can the lawsuit not be a SLAPP?  Inversely, if a defendant proves that the lawsuit is about solely petitioning activity, and the petitioning was not a sham, does it follow necessarily that the lawsuit should be dismissed as a SLAPP?

Suppose, the Court proffered (quoting Illinois precedent), that defendant “‘spread malicious lies about an individual while in the course of genuinely petitioning the government for a favorable result.’”  The defendant passes muster under step one (if the statements are not parsed).  And the plaintiff cannot show sham under step two.  Case dismissed.  Yet “[i]f a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts and, thus, does not constitute a SLAPP, it is irrelevant whether the defendant[’s] actions were genuinely aimed at procuring favorable government action, result, or outcome.”

Thus the Court exposed a basic constitutional dilemma in anti-SLAPP: The plaintiff has a right to petition, too; plaintiff’s lawsuit is a constitutionally protected petition to the judiciary.  I would add, ignorance of this fact is why anti-SLAPP statutes, if not properly reined in by the courts, unfairly overcorrect in defendants’ favor.  One can argue that this operation of anti-SLAPP is a prophylactic protection for the petitioning rights of the defendant, thereby demanding that we tolerate dismissal of some meritorious causes of action—like the problematic “actual malice” rule of public-figure defamation.  But that argument fails to explain why the defendant’s petition right is superior to the plaintiff’s.

To solve this problem and mitigate its constitutional dilemma, the Supreme Judicial Court added a second way for the plaintiff to prove its way out of anti-SLAPP dismissal in step two of the test.  Recall that plaintiff bore the burden of prove sham petitioning by the defendant (and actual injury).  Well now the plaintiff may prove sham petitioning or plaintiff’s “suit was not ‘brought primarily to chill’ the [defendant]’s legitimate exercise of its right to petition.”  Thus, recalling the “malicious lies” example above, suppose furthermore that the plaintiff cared not one way or the other about the matter of defendant’s petition to the government.  Plaintiff rather was concerned with the malicious lies, however the matter was decided.  “A necessary but not sufficient factor in this analysis will be whether the [plaintiff]’s claim at issue is ‘colorable or … worthy of being presented to and considered by the court,’ … i.e., whether it ‘offers some reasonable possibility’ of a decision in the party’s favor.” 

On remand, then, the nurses would be able to avoid anti-SLAPP dismissal on the Globe statements, as well as the email, by showing the Globe statements a sham petition—unlikely—or by showing “that their defamation claim, viewed as a whole, is nonetheless not a ‘SLAPP’ suit.”  If they cannot meet their burden either way, then the hospital will be entitled to dismissal as to the Globe statements, the case over the email persisting.

The change is a dramatic one.  So modifying the plaintiff’s burden on step two of the test forces the trial court to confront head on the undisguised, central question of the anti-SLAPP inquiry.  Notwithstanding precedents that eschew focus on a plaintiff’s motives, the analysis inevitably steers the court back to ask whether the plaintiff is aggrieved by the hurtfulness of what the defendant did, or by the defendant’s aim to influence government.  For my money, one might as well ask that question at the start and be done with it.

The case is Blanchard v. Steward Carney Hospital, No. SJC-12141 (Mass. May 23, 2017) (Justia).


Justice Lenk issued a second opinion on anti-SLAPP for the Supreme Judicial Court the same day, May 23.  The case better fits the prototype anti-SLAPP mold in being a dispute over property development.  The Court remanded for application of its new Blanchard standard (case (2), immediately above).

In 2011, the plaintiff purchased a five-story brick building, 477 Harrison Avenue, Boston, to redevelop it for residential use.  Defendant JACE Boston owned neighboring 1234 Washington Street, which shared a wall with the Harrison property.  Defendant intended at some point to redevelop its property, too, and a competition ensued.  The parties disputed redevelopment plans in years of administrative process and litigation.  Finally in 2014, plaintiff sued defendant in superior court for abuse of process and for violation of Mass. Gen. L. ch. 93A, § 11, a broad state prohibition on unfair competition.

Upon defendant’s anti-SLAPP motion, the trial court determined that the defendant could not meet its step-one burden to show that the lawsuit was about solely petitioning activity, without other substantial basis.  The Court rather found that the abuse of process claim passed muster under step one, concerning solely defendant’s petitioning.  On step two, the plaintiff could not show that defendant’s petitioning, with respect to the abuse of process claim, was entirely a sham, that is devoid of factual and legal basis.  Nevertheless, under the newly announced Blanchard standard, the plaintiff on remand must be afforded the opportunity to resist dismissal by proving that its lawsuit is not a SLAPP—that is, “the motion judge may conclude with fair assurance,” “‘that [plaintiff’s] primary motivating goal in bringing its claim, viewed in its entirety, was “not to interfere with and burden defendants” … petition rights, but to seek damages for the personal harm to [the plaintiff] from [the] defendant[’s] alleged … [legally transgressive] acts.’”

Faced with “the novel issue as to whether all or only some of a [defendant’s] petitioning activities must be shown to be illegitimate in order to defeat a special motion to dismiss,” the Court decided that the plaintiff must “show that the entirety of its abuse of process claim is not a ‘SLAPP’ suit” to resist dismissal in full.  Otherwise, dismissal (and fees) are granted only for the “portion of the abuse of process claim arising out of the defendant[’s] protected petitioning activities.” 

The case is 477 Harrison Avenue v. JACE Boston, LLC, No. SJC-12150 (Mass. May 23, 2017) (Justia).

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