From left: Matthew A. Kane and Payal Salsburg
Massachusetts’ so-called “anti-SLAPP” statute, G.L. c. 231, § 59H, presents a constitutional puzzle. The statute bars strategic litigation against public participation (SLAPP), i.e., a claim or “lawsuit brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Before the Supreme Judicial Court’s decision in Blanchard v. Steward Carney Hospital Inc., 441 Mass. 141 (2017), the statute required a court, on motion, to dismiss claims that the moving party demonstrated were “based on” petitioning activity, unless the non-moving party proved that the petitioning activity underlying the claim was a “sham,” i.e., “devoid of any reasonable factual support or any arguable basis in law,” and caused harm to the non-moving party. This was the framework adopted by the SJC in Duracraft v. Holmes Prods. Corp., 427 Mass. 156 (1998). As the SJC has long acknowledged, however, that valid petitioning activity can cause harm, too. In such a case, the injured party’s constitutional right to seek redress in the courts is no less important than the constitutional rights of the petitioning party.
In an effort to rebalance these competing constitutional interests, and, implicitly, to resolve potential constitutional infirmities within the statute itself, the SJC in Blanchard augmented the anti-SLAPP framework announced in Duracraft by adding a third test. The SJC held that, following a moving party’s threshold showing that a claim is “based on” petition activity, a nonmovant who is unable to demonstrate that the harmful petitioning activity underlying its claim was a sham, previously the only path to defeat an anti-SLAPP motion under Duracraft, might nevertheless still defeat an anti-SLAPP motion if it proves that the challenged claim was “not brought primarily to chill the movant’s legitimate petitioning activity.” Such claims are not “based on” petitioning activity, according to the SJC’s reinterpretation of the statutory language. To make this showing, the nonmoving party must prove to the motion judge, “with fair assurance,” that the primary motive underlying the claim was not to interfere with the moving party’s petitioning rights, but rather to seek redress for harm caused by allegedly unlawful conduct. The motion judge is directed to apply this “primary purpose” test based upon “the totality of the circumstances,” including “the course and manner of the proceedings,” pleadings and affidavits. A necessary but not sufficient factor in this analysis is demonstration that the challenged claims are “colorable.”
This augmented framework has significantly limited the utility of the anti-SLAPP statute. First, the “primary purpose” test has proven difficult (and, for litigants, expensive) to apply. One motion judge noted in his decision on an anti-SLAPP motion that the “parties have filed extensive affidavits and counter-affidavits, supplemented by voluminous exhibits, to support their arguments about the plaintiff’s primary motivation for filing its abuse of process claim. The sheer weight of the papers filed in this regard undermines the notion that the anti-SLAPP statute is being used in this instance as a quick remedy to frivolous litigation.”
Further, the “primary purpose” test implicates yet another constitutional concern — the potential to infringe on a claimant’s right to have their legal claims heard by a jury. Blanchard can fairly be read to invite the motion judge to weigh competing evidence and to determine issues of credibility in its application of the “primary purpose” test — even if it results in the final adjudication of legal claims without a jury. In Tut Liu v. Royal Care Inc., an employment discrimination case, the employer asserted counterclaims for abuse of process and tortious interference with advantageous relations based on allegations that the employee and a former HR consultant “systematically designed and executed a plan that included fabricating stories about” the employer to portray it as “racist” and “criminal.” The motion judge granted the anti-SLAPP motion of the employee and HR consultant, dismissed the counterclaims, and invited an application for attorneys’ fees under the statute. Applying the “primary purpose” test, the motion judge ruled that, “[T]he idea that [the HR consultant], employed on an interim basis, who left on professional and positive terms, would collude with [employee] to portray [employer] as racist and impermissibly discriminatory … for the purpose of creating a basis for a lawsuit is simply not believable and not supported by any credible evidence.” But Tut Liu appears to be an outlier. Most courts have demurred on fact questions, preferring to deny the anti-SLAPP motion and defer fact questions for resolution at trial. For example, in America’s Test Kitchen Inc. v. Kimball, the court denied an anti-SLAPP motion because, “If a jury were convinced that [movant] asserted baseless claims … in order to hinder [movant’s] ability to compete against [movant], it could find that [movant] committed the tort of abuse of process.” If the court must evaluate the nonmovant’s subjective intent, it follows that anti-SLAPP motions are now significantly harder to win.
The “primary purpose” test reinterprets the anti-SLAPP statute to better protect the nonmoving party’s constitutional right to seek redress for harm in the courts. On the other hand, the test has proven difficult and expensive to apply, and has made anti-SLAPP motions harder to win. As a result, Blanchard
may, and, for the well-advised client, should, have at least a deliberative — if not chilling — effect on the exercise of the constitutional right to petition. If that exercise might result in harm to another, be warned that the anti-SLAPP statute is a far less reliable shield against resulting claims.
Matthew A. Kane is a partner at Laredo & Smith LLP who represents banks and other financial institutions, businesses and individuals in an array of business law matters and disputes concerning consumer finance, employment, construction, real estate and general litigation as part of the firm’s business litigation practice. Kane has considerable experience in consumer financial services litigation, including mortgage and title litigation, civil check fraud, and fair debt collection matters. Kane successfully tries cases to verdict and argues before the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court, and appears regularly in every level of state and federal court across Massachusetts and Rhode Island.
Payal Salsburg is senior counsel to Laredo & Smith LLP. She focuses her practice in the areas of business litigation, corporate advice and counsel, and white collar criminal defense. She represents corporations, small businesses and individuals in connection with an array of matters, including contract and business disputes, False Claims Act litigation, and government and internal investigations. Salsburg also routinely advises closely-held businesses on corporate and employment matters.