The Supreme Judicial Court (SJC) today issued two decisions which together make important changes in how Massachusetts courts apply the often troublesome SLAPP statute, M.G.L. c. 231, § 59H, enacted in 1994. While of general application, the SLAPP statute often surfaces in disputes over real estate development.
Today’s decisions are dense and will require further study, but at first glance Blanchard v. Steward Carney Hospital, Inc. (pdf) is the more dramatic of the two. Massachusetts courts have long recognized that, as drafted, the reach of the SLAPP statute is not limited to classic SLAPP suits – weak or baseless cases brought primarily for the purpose of chilling a defendant’s legitimate “petitioning activity” – but extends to virtually any claim asserted in response to petitioning activity. After over 20 years of decisions construing the statute, Blanchard directly addresses this scope issue. As the SJC puts it, “[u]nder current case law, the inquiry ends without permitting confirmation that the fundamental statutory concern [of the statute] is satisfied, much like the proverbial unacknowledged elephant in the room.” In Blanchard the SJC confronts the elephant by adding a new, alternative way for a plaintiff to avoid dismissal of its case via the statute’s “special motion to dismiss.” Currently, a defendant filing a special motion to dismiss must show that the plaintiff’s claims are solely based on the defendant’s petitioning activities. If the defendant makes this showing, the burden shifts to the plaintiff to show that the defendant’s petitioning activities lacked a reasonable basis in fact or law – often referred to as “sham petitioning.” Given the difficulty of making this showing, especially at the outset of a case, Blanchard gives the plaintiff a new way to avoid dismissal: by affirmatively showing that its case was not brought primarily to chill the defendant’s legitimate petitioning activities – in other words, that it is not a SLAPP suit. “To make this showing, the [plaintiff] must establish … that its primary motivating goal in bringing its claim, viewed in its entirety, was ‘not to interfere with and burden defendants’ … petition rights, but to seek damages for the personal harm to [it] from [the] defendants’ alleged … acts.'” The SJC instructs trial judges “in the exercise of sound discretion … to assess the totality of the circumstances pertinent to the [plaintiff’s] asserted primary purpose in bringing its claim.” Allowing consideration of the plaintiff’s subjective intent in bringing the case marks a sea change in Massachusetts practice under the SLAPP statute, and adds a new layer of complexity to special motions to dismiss.
The SJC’s second decision, 477 Harrison Ave., LLC v. JACE Boston, LLC (pdf), while less far-reaching than Blanchard, answers an important, previously unanswered question about the SLAPP statute: must the plaintiff show that all, or only some, of the defendant’s petitioning activities are baseless to defeat the defendant’s special motion to dismiss? As the SJC notes, the SLAPP statute is silent on this point, and that silence has caused confusion in the trial courts. Some courts have adopted an all-or-nothing approach, denying special motions to dismiss where the plaintiff shows that any aspect of the defendant’s petitioning activity was baseless. Looking to the Legislature’s intent in enacting the statute, the SJC in 477 Harrison Ave. clarifies that the statute protects only valid petitioning activity, so trial courts must examine each instance of the defendant’s petitioning activity separately. From here forward, a special motion to dismiss should be denied as to any activity that the plaintiff can show is baseless, and granted as to any activity that the plaintiff cannot show is baseless (which activity the statute presumptively protects), unless the plaintiff can make the alternative showing now authorized by Blanchard, i.e., that its case is not, in fact, a SLAPP suit, in which event the motion also should be denied.