This article, written by attorneys Sara Virks and Aaron Rosenberg, was origibally published by New England Biz Law Update and can be found here.
In its recent decisions in Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., 493 Mass. 539 (2024) (“Bristol”), the SJC makes its intention clear: to go back to a simpler framework when addressing anti-SLAPP litigation reminiscent of that found in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998) (“Duracraft”). In doing so, it has removed two aspects of its previous anti-SLAPP analysis framework. Specifically, it has eliminated the “second path” for defeating the special motion to dismiss as laid out in Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 (2017) (“Blanchard I”), and overruled the parsing out of factual allegations underlying each claim to determine whether the petitioning activity on its own would support the underlying cause of action, as laid out in Blanchard I and Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200 (2019) (“Blanchard II”).
Anti-SLAPP litigation can arise in a variety of contexts, from the employment context, where an employee may be claiming discrimination allegations, to land use disputes, where the average citizen has spoken out against a private entity, such as a developer. In order to silence the employee or average citizen, the employer, or private entity, may threaten to initiate, or actually initiate, a claim against them, such as defamation. As such behavior became more prevalent, its practice was dubbed “Strategic Litigation Against Public Participants,” or SLAPP. To cure this disease of SLAPP, the Massachusetts anti-SLAPP statute was born. However, if SLAPP was a disease that needed a cure, the SJC nevertheless classifies the remedy of the special motion to dismiss as “strong medicine.” Bristol, 493 Mass. at 555. The anti-SLAPP statute not only allows dismissal of claims against an opposing party by claiming that the opposing party’s claims against them are based solely on their right to petition, but also provides for the mandatory award of attorney’s fees, as well as a stay on all discovery proceedings until the special motion is decided.
In Bristol, the SJC admits that the evolution of anti-SLAPP rules as laid out in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998), and added to in Blanchard I and Blanchard II, have contributed to complicating anti-SLAPP analysis. In Duracraft, the Court “adopted a strict construction of section 59H’s reference to claims ‘based on’ a party’s petitioning activity” that “would exclude its applicability to claims with a substantial basis other than or in addition to an individual’s exercise of the right to petition.” Bristol, 493 Mass. at 555. However, the Court found that this construction “continued to invite its misapplication to meritorious claims…” Bristol, 493 Mass. 541.
To remedy this misapplication and allow for broader use, the Court in Blanchard I and Blanchard II created two new rules to be applied within the anti-SLAPP framework. In Blanchard I, the Court laid out an alternative means for defeating a special motion, the so-called “second path,” Bristol, 493 Mass. at 552, which required the special motion opponent to show “that the opponent’s claims … were not raised for the primary purpose of chilling the special motion proponent’s legitimate petitioning activity.” Id. To succeed under this approach, the Court would consider several “open-ended” subjective factors, such as “the relative strength of the [special motion opponent]’s claim” and “evidence that the petitioning activity was chilled…” Id. Too often this resulted in decisions that were “unpredictable” and not easy to interpret in practice.
In Blanchard I and Blanchard II, the Court “substantially augmented the Duracraft framework, requiring that the factual allegations supporting challenged claims be parsed, so as to allow portions of such claims to be dismissed, and inserting an additional multi-factor test to evaluate the subjective motivation of those bringing the challenged claims.” Bristol, 493 Mass. at 541. A special motion proponent could request the dismissal of a portion of a special motion opponent’s claim “so long as the petitioning activity could have independently served as the sole basis for the claim.” Bristol, 493 Mass. at 551. Though this allowed for practitioners to take a broader approach as to what include in their special motions to dismiss, it forced motion judges to waste valuable time discerning whether, under each claim, the petitioning activity on its own would support the underlying cause of action. Id.
In the wake of Bristol, the “second path” and the parsing process have been eliminated, resorting back to the “necessarily narrow and strict construction of the [anti-SLAPP] statute” as adopted in Duracraft. Based on the SJC’s new guidance, practitioners should expect to see courts no longer just trimming the fat from anti-SLAPP litigation by parsing out individual, challenged claims, but placing entire cases on the chopping block in order to allow for leaner approaches to prevail. Strong medicine indeed.