The SJC Provides Further Guidance on Anti-SLAPP Motions

Issue January/February 2020 February 2020 By Catherine M. Scott
Complex Commercial Litigation Section Review
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Catherine M. Scott

On Sept. 23, 2019, the Supreme Judicial Court (SJC) issued its second decision in Blanchard v. Steward Carney Hospital Inc., 483 Mass. 200 (2019) (Blanchard II), and further explained its newly augmented standard for filing an “anti-SLAPP” motion under Massachusetts law, G.L. c. 231, § 59H. By way of background, the Legislature enacted the anti-SLAPP statute to counteract “SLAPP” or “strategic lawsuits against public participation,” which are “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1988). The anti-SLAPP statute provides a procedural remedy for early dismissal of these disfavored lawsuits, which is a special motion to dismiss that can be brought prior to engaging in discovery and is intended to dispose of claims that are based solely on a party’s exercise of its right to petition. Id.

The court first issued a decision outlining its augmented standard in Blanchard v. Steward Carney Hospital Inc., 477 Mass. 141 (2017) (Blanchard I). In Blanchard I, nine of the nurses who formerly worked in the adolescent psychiatric unit of Steward Carney Hospital brought suit for defamation (among other things) against the hospital and William Walczak, former president of the hospital, for statements he made to the Boston Globe and other employees concerning the reasons for those nurses’ termination. 477 Mass. at 144-145. The hospital filed an anti-SLAPP motion seeking early dismissal of the nurses’ defamation claims, which was denied in the trial court and appealed as a matter of right. Id. at 142-143.

Upon further consideration, the SJC issued a new standard for dismissal pursuant to an anti-SLAPP motion in Blanchard I and remanded the matter to the lower court for further consideration under the new standard. Id. at 161.

Under the new Blanchard I standard, at the threshold stage, the moving party (usually the defendant) must establish by a preponderance of the evidence that the allegations in the lawsuit are “solely based on [the moving party’s] own petitioning activities.” Blanchard II, 483 Mass. at 203. Under the newly augmented Blanchard II standard, once this threshold is met, the burden shifts to the non-moving party (usually the plaintiff) to demonstrate that dismissal is not required through one of two routes: (1) by establishing by a preponderance of the evidence that the moving party’s petitioning activity was, in essence, a “sham”; or (2) by establishing “such that the motion judge may conclude with fair assurance … that its suit [is] ‘colorable’; and that the suit was not ‘brought primarily to chill the moving party’s legitimate exercise of its right to petition,’ i.e., that [the lawsuit is] not retaliatory.” Id. at 203-204.

In Blanchard II, the lower court reconsidered the hospital’s anti-SLAPP motion under the new framework and again denied the motion. 483 Mass. at 201. The SJC affirmed the denial of the motion again, but took the time to explain how lower courts should analyze anti-SLAPP motions under the new framework. Id.

The newly issued framework to defeat an anti-SLAPP motion set forth in Blanchard I has caused the lower courts significant confusion, as the court provided little guidance as to how courts should determine whether the plaintiff’s lawsuit was “brought primarily to chill the moving party’s legitimate exercise of its right to petition.” 483 Mass. at 204. Recognizing this potential confusion, the Blanchard II court outlined several factors that could be used to make such a determination, including, but not limited to, the following: (1) “whether the case presents as a ‘classic’ or ‘typical’ SLAPP suit, i.e., whether it is a lawsuit [] directed at individual citizens of modest means for speaking publicly against development projects”; (2) whether the lawsuit was commenced close in time to the petitioning activity; (3) whether the anti-SLAPP motion was filed promptly; (4) the centrality of the challenged claim in the context of the litigation as a whole, and the relative strength of the nonmoving party’s claim; (5) evidence that petitioning activity was, in fact, chilled; and (6) whether the damages requested by the nonmoving party, such as attorneys’ fees, would burden the moving party’s exercise of the right to petition. Id. at 206-207 (internal quotations and citations omitted). The court recognized that in conducting this analysis, “these factors are not exhaustive; that no single factor is dispositive; and that not every factor will apply in every case.”

Though there is still significant legal ground to cover in understanding the SJC’s augmented framework, the court’s decision in Blanchard II provides some much-needed guidance to lawyers and judges alike. The more stringent standard will make these anti-SLAPP motions more difficult to win, but the intent of the court’s decision in Blanchard II was to weed out those lawsuits meant to chill petitioning activity, and allow those that are legitimate to move forward. Whether that occurs remains to be seen once the courts begin applying the Blanchard II factors to newly filed anti-SLAPP motions. 

Catherine “Cat” M. Scott
is currently an associate at Freeman Mathis & Gary LLP. She specializes in employment, professional liability and commercial litigation.