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Curt Dooling Explains Evolving Anti-SLAPP Standards

The Massachusetts Supreme Judicial Court continues to alter the standard by which G. L. c. 231, § 59H anti-SLAPP motions are decided by trial courts. The anti-SLAPP statute authorizes a party sued because of its petitioning activity to file a special motion to dismiss within 60 days of service of the complaint. Petitioning activity may range from testifying before a government agency to speaking publicly about an issue under consideration by a governmental body. The purpose of the anti-SLAPP statute is to protect individuals from harassing litigation and from the burden of defending against retaliatory lawsuits.

Pursuant to the SJC’s 1988 Duracraft test, the moving party (defendant) had to first demonstrate that the nonmoving party’s (plaintiff) claims were solely based on its own petitioning activity. Id. If the moving party met this initial burden, the non-moving party could defeat an anti-SLAPP special motion to dismiss by showing that the moving party’s petitioning activities were “sham petitioning.”

The SJC altered the Duracraft standard in 2017 in Blanchard v. Carney Hospital, 477 Mass. 141 (2017) (Blanchard I). In Blanchard I, the SJC modified the burden-shifting test by adding a second part to the analysis once the moving party made a showing that the non-moving party’s claims were solely based on petitioning activity. If the nonmoving party couldn’t show that the petitioning activity was a “sham,” the nonmoving party could defeat a special motion to dismiss by showing that the challenged claims were not primarily brought to chill legitimate petitioning activity.

Due to numerous conflicting decisions from the trial courts and from the Appeals Court, the SJC recently clarified the Blanchard I standard in Blanchard v. Steward Carney Hospital, Inc., 483 Mass. 200 (2019) (Blanchard II). In Blanchard II, the SJC held that if the non-moving party can’t show that the petitioning activity was a “sham,” the nonmoving party could defeat a motion to dismiss by showing that its primary goal in bringing its claim was not to interfere with defendant’s petition rights, but to seek damages for the defendant’s alleged acts.

Because Blanchard I provided little guidance on how courts should determine what claims were brought to chill petitioning activity and what claims were legitimate, Blanchard II established specific factors to be used by lower courts: (1) whether the claim was a classic SLAPP suit brought against citizens for speaking out on development projects; (2) whether the lawsuit was commenced close in time to the petitioning activity; (3) the timing of the anti-SLAPP motion; (4) 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 actually chilled; (6) whether the damages requested by the nonmoving party would burden the moving party’s exercise of the right to petition.

Attorney Curt Dooling has successfully litigated numerous anti-SLAPP cases and has prevailed at the Appeals Court on anti-SLAPP cases twice in the last two years in Dever v. Ward, 92 Mass. App. Ct. (2017) and Dever v. Ward, 96 Mass. App. Ct. 1108 (2019).

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