SJC’s Blanchard Ruling Narrows Scope Of Massachusetts Anti-SLAPP Statute
Earlier this year, the Massachusetts Supreme Judicial Court (“SJC”) issued a landmark ruling that has the potential to shift the balance of power in many types of legal actions, particularly lawsuits involving common-law claims such as defamation and tortious interference with contractual relations.
In Blanchard v. Steward Carney Hosp. Inc., 477 Mass. 141 (2017), the SJC expanded parties’ ability to avoid the reach of the so-called Massachusetts “anti-SLAPP” statute, which provides a means for litigants to obtain swift dismissal of legal claims against them prompted solely by litigants’ protected “petitioning activities,” such as lobbying elected officials or making public statements on a controversial issue. One important result is that employers should have greater leeway to assert counterclaims, where appropriate, in lawsuits brought against them by former employees or other parties.
Background: The Massachusetts Anti-SLAPP Statute
Under the Massachusetts anti-SLAPP (Strategic Litigation Against Public Participation) law, which was enacted in 1991, a party to a lawsuit facing civil claims that “are based on said party’s exercise of its right to petition under the constitution of the United States or of the commonwealth” has the statutory right to file a special motion for expedited dismissal of those claims. If granted expedited dismissal, the moving party is also entitled to an award of its reasonable attorneys’ fees.
The primary purpose of the Massachusetts anti-SLAPP statute (codified as Mass. Gen. L. ch. 231 § 59H) is to provide parties with a swift and cost-effective remedy when claims (often under theories of defamation, malicious prosecution, or intentional/tortious interference with contract) have been asserted against them primarily for the purpose of chilling their right to petition. The prototypical example is where a group of individuals speaks out against a real estate developer’s proposed plans and are then sued by the developer for defamation, tortious interference or similar claims, apparently prompted directly by their public statements. In such cases, the special motion to dismiss provided for under the statute can be a potent remedy (and deterrent to frivolous claims).
Anti-SLAPP motions can arise in other contexts as well. For example, where a former employee makes public statements alleging that the employer violated the law in some manner, the employer might be tempted to respond with counterclaims for defamation or the like. If the former employee can show that those counterclaims are based solely on his or her petitioning activities (i.e., the public statements), the former employee may be able to obtain swift dismissal of the counterclaims, along with an award of his or her attorneys’ fees.
Previous Standard For Anti-SLAPP Special Motions
In evaluating a special motion to dismiss under the anti-SLAPP statute, Massachusetts courts have followed a judicially created standard that closely mirrors the text of the statute, and that was first articulated in the SJC’s ruling in Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156 (1998). Under Duracraft, in order for a special anti-SLAPP motion to be granted, the moving party must first establish that the claims against it are based on its petitioning activities alone and have no substantial basis other than those petitioning activities. If the moving party makes that showing, the burden then shifts to the non-moving party, who must then establish that the moving party’s petitioning activity was merely a “sham” – i.e., lacking in any reasonable basis in fact or law.
The Duracraft standard has been highly advantageous for many litigants facing defamation and similar claims. Duracraft has provided a mechanism whereby, with little or no discovery, courts can swiftly dismiss claims designed to chill the expression of opposing viewpoints, particularly by less well-heeled individuals and entities who may not have the means to engage in a lengthy court battle.
However, as a number of courts have noted, Duracraft, by its very efficiency, has the potential to be over-inclusive, pulling within its sweep legitimate claims that, though based on an opposing party’s non-sham petitioning activities, are aimed at remedying actual harm caused by the moving party, rather than chilling legitimate petitioning activity.
The Blanchard Decision
With this backdrop, the SJC’s recent Blanchard ruling revises the Duracraft standard in a way that will likely make it more difficult for parties to obtain expedited dismissal of SLAPP claims.
The Blanchard case arose out of events that occurred at Steward Carney Hospital in the spring of 2011. After reports of abuse in the adolescent psychiatric unit at the hospital, Carney’s president fired all of the unit’s registered nurses and mental health counselors. Soon thereafter, and while the Massachusetts Department of Public Health (“DPH”) was considering revoking the hospital’s license to run the unit, the hospital made two separate statements, one to hospital employees and the other to the Boston Globe, both of which could be read to imply that the employees had been fired at least in part for their culpability for the incidents that had taken place within the unit.
Nine of the fired nurses filed suit against the hospital and related parties, asserting, in part, claims for defamation based on the hospital’s statements. The defendants responded by promptly filing a special motion to dismiss the defamation claims pursuant to the anti-SLAPP statute. The defendants argued that the plaintiffs’ claims were based solely on petitioning activity – here, the hospital’s exercise of its right to petition the DPH in an attempt to keep its license. The trial court denied the special motion to dismiss, but the state Appeals Court reversed that decision. Subsequently, the SJC agreed to consider the issue.
In its decision, the SJC recognized that if it were to apply the existing Duracraft standard, the motion should likely be granted. After all, the plaintiffs’ defamation claims – at least to the extent they were based on statements made to the Boston Globe – arose directly from the hospital’s attempts to keep its DPH license. Further, it would likely be impossible for the plaintiffs to establish that the hospital’s activities in petitioning the DPH were merely a “sham.”
Based on those factors, the SJC opined that the Blanchard case did not have the “classic indicia of a ‘SLAPP’ lawsuit” and that the existing Duracraft framework “does not provide adequate means to distinguish between meritless claims targeting legitimate petitioning activity and meritorious claims with no such goal.” In other words, courts should not construe the anti-SLAPP statute in a way that leaves parties with no potential remedy when they are harmed by an opponent’s false or misleading statements in the course of otherwise protected petitioning activity.
In order to address these concerns and avoid early dismissal of cases in which “legitimate petitioning activity forms the basis of a meritorious adverse claim that is not primarily geared toward chilling such petitioning,” the SJC announced a new, augmented framework for analyzing anti-SLAPP special motions to dismiss:
- At the first stage, as under Duracraft, the moving party must demonstrate that its opponent’s claims are based solely on the moving party’s petitioning activities.
- At the second stage, in order to defeat the special motion to dismiss, the non-moving party must establish either:
- That the moving party’s petitioning is without a reasonable basis in fact or in law – in other words, that the petitioning is a sham; or
- That each of the non-moving party’s claims in question was not primarily brought for the purpose of chilling the moving party’s legitimate petitioning activities.
The SJC then remanded the case to the Superior Court for further consideration based on this new standard.
Implications Of The Blanchard Ruling
The new standard announced by the SJC in Blanchard allows for greater nuance than the prior Duracraft standard, in recognition that not all claims based on an opposing party’s petitioning activities are meritless.
Massachusetts employers, among other parties, may well benefit from this new standard. For instance, if another party – such as a former employee or a business competitor – makes false or misleading public statements about an employer that may result in harm, the employer should have a greater ability to have resulting legal claims heard by a court.
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If you have questions about the impact of the Blanchard ruling – either with regard to a specific litigation matter or more generally – please feel free to contact one of our experienced litigators. We would be happy to help.