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).

(2) The Case of “‘It’s Too Late, Doctor Bob.  We’ve Lost Him’”

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).

(3) The Case of a Beautiful Day for a Neighbor

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).

[UPDATE, Nov. 11, 2019: The SJC today issued another installment in 477 Harrison saga.  Remanding, the Court determined that abutters' counterclaims were retaliatory, not substantive, so should not be sustained against the developer.  I'll say again, anti-SLAPP was not designed to protect developers in land feuds, much less to generate multiple interlocutory dispositions, and this case speaks directly to the pathology of anti-SLAPP.]

Court holds no duty/no cause in rape case against state

Sovereign immunity and affirmative duty were at issue in a state tort claims act case of tragic facts decided 3-2 upon rehearing in the Massachusetts Appeals Court on April 12.  Pedagogically, the case well illustrates the famous interchangeability of duty and causation, my favorite articulation of which appeared in then-Circuit Judge Scalia’s footnote 4 in Romero v. NRA, 749 F.2d 77, ¶ 10 (D.C. Cir. 1984).  On the nuts and bolts, the case well reiterates and demonstrates the strict application of the no-affirmative-duty rule under the state tort claims act, even in a famously progressive jurisdiction.

Plaintiff Jane J. alleged rape by a male patient while they both occupied the recreational TV room of a locked unit of the Tewksbury State Hospital.  The court engaged solely with the question whether failure to segregate male and female patients in the rec room legally caused the rape under the state tort claims act.  Holding no cause, the court, per Justice Diana Maldonado, affirmed summary judgment for the Commonwealth.

Here illustrated in 1907, the Tewksbury State Hospital is on the National Register of Historic Places.

The classic American case of (no) affirmative state duty for law students studying due process in constitutional law is DeShaney v. Winnebago County, 489 U.S. 189 (1989).  The U.S. Supreme Court rejected liability for state failure to intervene and prevent fatal child abuse.  The case essentially restated the peculiarly American “no duty” doctrine of common law for the context of “constitutional tort.”  Thus the rule of no affirmative duty manifests across the contexts of common law, due process, and sovereign immunity.  The doctrine of federal law is replicated in the states, though may be varied by statutory interpretation when claims are controlled by state waivers of sovereign immunity in tort cases.  In this Massachusetts case, statutory interpretation of the state claims act molded the question into one of causation—though the DeShaney question nonetheless constitutes the heart of the inquiry.

Arguments focused on state claims act Mass. Gen. L. ch. 258, § 10(j).  In relevant part (a list of exceptions omitted here), the section maintains sovereign immunity against “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”  Thus the problem of affirmative duty is phrased in terms of “original[] cause[],” and the appeals court set out to determine whether non-segregation could be said to have been an “original cause” of the rape.

In the court’s interpretation, original cause is “strict,” requiring “‘an affirmative act [not a failure to act] … that creates the “condition or situation” that results in harm’” (quoting precedent; court’s added text; my italics).  The court recounted a series of cases rejecting recovery under § 10(j), including one case that held state lifeguards having negligently abandoned their posts was not the original cause of a drowning.  That result pertained even though the argument for an intact causal chain was stronger for lack of an intentional and criminal intervening actor.  Jane J.’s claim could not survive such strict examination.

Justice Gregory Massing, joined by Justice Peter Rubin, filed a vigorous dissent predicated on special relationship duty arising from involuntary commitment, or alternatively, on the merits, arguing in the latter vein that the “hospital ‘materially contributed to creating,’ and did not merely fail to prevent, the condition that resulted in the plaintiff’s being attacked in the common room.”

The case is Jane J. v. Commonwealth, No. 15-P-340 (Mass. App. Ct. Apr. 12, 2017) (Justia).

Book Review: The Experimental Society by Marshall S. Shapo

Catching up on reading since the close of the spring semester, I just finished Professor Marshall Shapo’s The Experimental Society (Transaction Publishers (now Routledge) 2016) (385 pp.) (publisher, Amazon, SSRN abstract, author interview) (385 pp.).  I highly recommend the book, which is fit for general audiences, besides lawyers and law students.

The experiment of the book’s title refers loosely to the American mix of free market and tort litigation, which works out the rules for what is allowed and not allowed in our society.  The dynamic is most plain in product liability.  A manufacturer brings to market a new and useful product, such as asbestos.  Later it’s learned that the product poses a grave risk to human health.  In extracting accountability for physical injury, the tort system regulates the continued use of asbestos.

What this system ill accounts for is its human toll.  The tort system is a balancing act.  Extreme regulation (vetting?) of everything new—a drug, a car, or a method of cleaning floors—would make research and development prohibitively expense and smother innovation.  Injury and death would result from drugs never developed, or safety innovations never deployed.  At the other extreme, diminished accountability would sanction the prioritization of profit over life.

Civil conflict resolution—our litigation system—threads, marks, and forever revises the boundary between right and wrong.  But our dependence on that system presupposes optimal, if not ideal, efficiency.  In reality, our tort system is rife with inefficiencies.

The starkest of those inefficiencies might be time.  I just takes too long to reach a conclusion in U.S. litigation—months, years, and sometimes decades.  While the wheels of justice grind, injured persons are not made whole, and new victims are claimed.  Another inefficiency is “transaction costs,” that is, the cost of dispute resolution, which is compounded by time.  Our drive for just and precise outcomes means that lawyers, experts, and litigation soak up a disproportionate amount of resources—if a matter can be litigated at all—re-victimizing the injured plaintiff and penalizing a defendant that might or might not have done anything wrong.

But inefficiencies get worse still, as the tort system tends to perpetuate socio-economic inequalities and irrational discriminations.  A poor community, less able to accomplish political organization or campaign contribution, cannot finance tort litigation to combat the impact of industrial pollution as effectively as a wealthy community can.  Even after wrongdoing is established in tort litigation, awards turns on loss, meaning that the working poor and the unemployed have less to recover than the injured doctor or lawyer.  These socio-economic effects exaggerate systemic prejudices of race and gender.  Moreover, bias can be perpetuated in fact-finding through judge and jury in a case.  And bias finds its way even into law itself, such as in liability standards that favor the alienation of real property—and therefore those who can afford it.

The Experimental Society examines the real social impact of our litigation system as hall monitor.  Shapo engages briefly with the familiar territory of product liability for asbestos and cigarettes.  But with that historical foothold, the book ranges widely to examine contemporary risks, such as bisphenol A (BPA) and vaping.  Shapo moreover expands his inquiry well beyond straightforward product liability.  He engages at length with environmental contamination, examining fracking, oil spills, and nuclear accidents.  He considers threats to the food supply, such as mad cow disease with its mysterious pathology.  Shapo also thinks expansively about experiment, embracing in his analysis both the deliberate experimentation of human clinical trials and the inadvertent yet ultimate experiment of climate change.

This encyclopedia of troubling experiments under way in our world delineates one axis of Shapo’s inquiry.  Meanwhile he draws a second axis, which traces the anatomy of risk and rules.  About the first half of the book explicates case studies to the end of broadly defining risk and experimentation.  The latter half of the book dives deep into dispute resolution, considering how this broad range of experimentation in our society has generated various standards, rules, and remediation systems in workplace safety, consumer protection, and mass tort litigation.  Shapo’s end-game, reached in the final chapters, considers the interplay of our experimental society with cultural and moral factors—for example, our values with respect to personal responsibility, risk-utility economics, and technological determinism.

As the back cover of The Experimental Society reminds us, Marshall Shapo—the Frederic P. Vose Professor at Northwestern University Law School, and, disclosure: my lead co-author on the casebook Tort and Injury Law, and a treasured mentor—has been writing about injury law for half a century.

Yet however much the product of an elder statesman in tort law, The Experimental Society is boldly contemporary.  The book is a one-stop shop for anyone who wants to tour the leading edge of risk, health, and law.  The relevant science and technology, business and economics, and law and policy all are laid out in plain language to engage any reader interested in the human condition.

The Experimental Society disappointed me in one respect only: it offers no answer.  The reader should be warned that the book ends with only the urgent question it raises, where the balance should be struck in our tolerance of risk.  This is not The Secret, with the promise to invigorate your fortunes; nor Hidden Figures with its revelatory moral tale; nor the latest blueprint to fix our democracy.  The Experimental Society isn’t selling answers.

Though I was disappointed not to find at the book’s end that Shapo’s wealth of experience could map out The Better Way, that expectation was foolhardy on my part.  However skilled a researcher and writer, Shapo is after all a teacher.  He recounts in the book a Socratic game he played with his eight-year-old granddaughter to demonstrate for her, of all things, Ken Feinberg’s predicament in compensating economic loss after the BP oil spill.  In good American fashion, the girl favored compensation precisely and fully for everyone who suffered injury.  Shapo didn’t tell her that that, ultimately, would be impossible; he showed her.

And that’s what The Experimental Society does: it shows us a problem that is inherent in the human social condition.  It turns the problem over, so we can see it from every angle.  Risk, it turns out, is not antagonistic to life; risk is an indispensable condition of life.  Risk yields reward, and reward makes life worth living.  How do we manage that risk to maximize reward, and what costs are we willing to tolerate in its pursuit?  Shapo knows that that’s an ancient problem—older than Deuteronomy 19:5.  So in The Experimental Society, he does the best a teacher can: to restate an eternal question for a new age.

Don't take transparency for granted; FOIAs are always under fire

The 91st General Assembly of the state of Arkansas is winding down; the deadline to file new bills passed two days ago.  Unexceptionally among the states, this flurry of furious lawmaking always entails a range of assaults on the state freedom of information act (FOIA).  In fact, this spring season after the bill deadline is especially hazardous for transparency advocates, because pending bills and so-called "shell" bills, filed but devoid of content, can be quickly amended and rushed through committee with monstrous consequences.  The Arkansas Project, which favors transparency in state government, has written about the FOIA activity in this session, lately here and here.

It happens that this year also has seen the publication of the sixth edition of the treatise, The Arkansas Freedom of Information Act (U. Ark. Press), on which I am privileged to be co-author with Professor Robert Steinbuch and lead author John Watkins, professor emeritus.  Steinbuch has been especially vocal in the media on FOIA, making the case for transparency and holding legislative feet to the fire of public accountability, lest legislators undermine the law.  He penned in jest a cartoon, which he's given me permission to publish here:

Last year the federal FOIA turned 50, and the Swedish Press Freedom Act, oft regarded as the first FOIA in the world, turned 250.  This year, alongside its contemporaries in many states, the Arkansas FOIA turns 50.  Amid all the changes of our technological and populist age--no matter whoever is wiretapping whom--let's hope that Steinbuch's cartoon is only a lampoon at legislators' expense, and not a portent for government transparency and accountability at any level.

Lawyers, read carefully: 'Presentment' held defective under state tort claims act

Flickr photo by bradlee9119 per Creative Commons license

A cautionary tale from the Massachusetts Appeals Court yesterday, per Justice Peter Sacks, reminds lawyers to read statutes carefully.


Plaintiff was among five persons (perhaps family, based on the names of four) injured in a Massachusetts Bay Transportation Authority (MBTA) bus accident.  Her lawyer filed a claim with the "MBTA Claims Department," the transmittal asking that the claim be referred to the appropriate authority.  The MBTA made settlement offers to the five, and only Plaintiff turned down the offer and opted to pursue litigation instead.

The Massachusetts Tort Claims Act requires presentment of a claim to the "executive officer" of the defendant state entity.  The trial court let the difference slide under a statutory exception allowing for correction of defective presentment upon the executive officer's actual knowledge of the claim.

The appeals court reversed, ruling that the exception must be construed narrowly.  Neither the attorney's request to forward nor logical inference was sufficient.  The court awarded the MBTA summary judgment.

The court acknowledged that the ruling is "a harsh result," especially considering that it probably mattered not at all to the MBTA claims process whether its executive received notice.

The case is Coren-Hall v. MBTA, No. 16-P-300 (Mass. App. Ct. Feb. 23, 2017), here at Mass.gov, here at Mass. Lawyers Weekly, and here at Justia.

[UPDATE, Dec. 17, 2018: In a December 2018 negligence case against the MBTA under the state tort claims act, the Supreme Judicial Court affirmed "that the MBTA had waived the affirmative defense of inadequate presentment by failing to plead it with the required specificity and particularity." The case is Theisz v. MBTA, No. SJC-12559 (Mass. Dec. 12, 2018).]