The Massachusetts Supreme Judicial Court this week significantly augmented the ways a plaintiff’s claim can survive a special motion to dismiss brought under the state’s anti-SLAPP statute.

A special motion to dismiss is brought by a party—typically a defendant—who contends that a lawsuit or claim is “based on” the defendant’s exercise of their constitutional right to petition the government. If a defendant persuades a court that the plaintiff’s claim is “solely based on” protected petitioning activities, the special motion to dismiss ends the case at an early stage, unless the plaintiff can show the defendant’s petitioning activities were a “sham,” with no reasonable basis in law or fact, which is a difficult standard for a plaintiff to meet.

But after this week, plaintiffs now have another option for defeating a special motion to dismiss: showing that the plaintiff’s claim was not “brought primarily to chill” the defendant’s right to petition the government. The SJC announced this new standard, which focuses on plaintiff’s motivation for bringing suit rather than defendant’s petitioning activity, this week in Blanchard v Steward Carney Hospital, Inc., SJC-12141 (May 23, 2017). The new motive standard represents a significant development for both plaintiffs and defendants in what is often a critical early stage of high-stakes litigation in a variety of contexts, including zoning, permitting, and other real-estate disputes.

SLAPP suits and anti-SLAPP special motions to dismiss

A quick explanation of the anti-SLAPP statute is necessary to set the table for Blanchard. The legislature enacted the anti-SLAPP statute in 1994 to discourage “strategic litigation”—litigation brought not necessarily to win relief, but rather to intimidate parties from exercising their constitutional rights to free speech and to petition the government. (The acronym “SLAPP” stands for “strategic litigation against public participation.”)

To discourage such SLAPP suits, the statute provides a specific procedural remedy to parties faced with a SLAPP action in the form of a “special motion to dismiss.” The special motion to dismiss can be brought early in an action, prior to expensive discovery, and it can have a dramatic impact at an early stage. If a party bringing a special motion to dismiss persuades the court that the plaintiff’s action is a SLAPP suit, the claim is dismissed, and the party bringing the special motion to dismiss receives an award of attorneys’ fees from the plaintiff.

From the very first time it was called upon to apply the anti-SLAPP statute in a 1998 case, the SJC recognized that identifying SLAPP suits—i.e., lawsuits with no independent merit, brought solely to intimidate defendants—would be difficult for the courts. After all, as the court recognized in 1998 and again this week in Blanchard, the anti-SLAPP statute was intended to expedite the dismissal of meritless SLAPP suits, but both parties to a lawsuit have the equal right to petition the government for relief, and the special motion to dismiss could be used to dismiss a plaintiff’s meritorious claim. This possibility “has troubled judges and bedeviled the statute’s application,” Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 166–167 (1998), leading to this week’s new standard announced in Blanchard.

Since 1998, anti-SLAPP special motions to dismiss have been handled by the courts according to the following framework: The party bringing the special motion to dismiss—the party supposedly being targeted for her petitioning activity—has the initial burden of demonstrating that the claims she seeks to dismiss were “based on” her “petitioning activities alone and had no substantial basis other than or in addition to the petitioning activities.” Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. at 167-68.

If the party bringing the special motion is successful in showing the lawsuit is “based on” her petitioning activity alone, the burden then shifts to the plaintiff to show that the party bringing the special motion to dismiss lacked any reasonable factual basis or legal argument for her petitioning activity, and that this sham-petitioning activity caused the plaintiff injury. As a practical matter, few plaintiffs could show that a defendant’s petitioning activities were a sham; thus, the focus of most litigation was on the defendant’s threshold burden, the disputes over whether the defendant’s activities were protected petitioning activities, and whether the plaintiff’s claims were “based on” the defendant’s petitioning activities alone.

Blanchard

Now to the facts of Blanchard: Following reports of abuse in a hospital unit, several nurses lost their jobs. After the president of the hospital made statements, both to the Boston Globe and in an internal email to hospital employees, that could have been construed to say that the nurses had lost their jobs because of their involvement in the abuse, nine nurses sued the hospital and other parties alleging, among other things, defamation. The hospital defendants filed a special motion to dismiss under the anti-SLAPP statute, claiming that the nurses’ claim for defamation was based on the hospital’s lawful petitioning activities—to wit, the statements to the press and the internal email to employees. The trial court ruled against the hospital defendants, finding that they had not met their threshold burden of showing that the nurses’ claim was based on the hospital defendants’ petitioning activities. After a stop in the Appeals Court, the case was accepted by the SJC for further review.

The SJC first found that the hospital defendants had met their burden of showing that a portion of the nurses’ defamation claim was “based on” the hospital defendants’ petitioning activities. Specifically, the SJC found that the statements made to the Boston Globe had a “plausible nexus” with an investigation by the Department of Mental Health, based on the content of the statements, their context, and the likelihood that they would reach or influence DMH. The SJC, however, rejected the hospital defendants’ claim that statements made to hospital employees in an internal email constituted protected petitioning activity.

Under the traditional framework that has governed anti-SLAPP special motions until this week, the fact that the hospital defendants’ showed that a portion of the nurses’ defamation claim was “based on” the hospital defendants’ petitioning activities would have meant that the burden shifted to the nurses to show that the hospital defendants’ petitioning activities (i.e., their statements to the Boston Globe) were a “sham.” The SJC acknowledged that on the facts of the case, the nurses were unlikely to make such a showing, which, under the prevailing standard, would have meant the dismissal of their defamation claim as well as an award of attorneys’ fees for the hospital defendants.

Such a result, however, created a risk that a claim with merit would be dismissed at an early stage of the case. As the SJC put it, the “problem is whether the plaintiff nurses’ defamation claim is, in fact, a ‘SLAPP’ suit at all.” The SJC recognized that if the nurses’ claim for defamation was not, in fact, a SLAPP suit, dismissal was inconsistent with the legislative intent behind the statute, which was to expedite the dismissal only of SLAPP suits devoid of independent merit. The SJC also recognized that such a result would itself raise constitutional concerns, since it would impact the nurses’ rights to petition the government, which includes the right to seek redress in the courts, in this case to pursue an action for defamation. In other words, there was a risk that protecting one party’s right to petition the government would unconstitutionally curtail the other party’s right to petition.

These two concerns led the SJC in Blanchard to augment the traditional framework to give plaintiffs a second option to survive a special motion to dismiss. It remains true that where the party bringing the special motion to dismiss persuades the court that the plaintiff’s claims were “solely based on” the defendant’s petitioning activities, the burden shifts to the plaintiff to show that defendant’s petitioning activities lacked a basis in fact or law, and were a sham.

But now, said the SJC in Blanchard, “we hold that a nonmoving party’s claim also is not subject to dismissal as one solely based on a special movant’s petitioning activity if the nonmoving party can establish that its claim was not ‘brought primarily to chill’ the special movant’s legitimate exercise of its right to petition.” Translated, this means that a plaintiff facing a special motion to dismiss under the anti-SLAPP statute has two options: either demonstrate that the alleged petitioning activity is a “sham,” or show that the primary motivation for asserting the claim was not to “chill” the defendant’s exercise of its right to petition the government.

It remains to be seen what evidence a plaintiff could use to show a court that its motive in asserting a claim was not to chill the exercise of constitutional rights, what evidence a defendant could use to show that the plaintiff’s motive was to chill the defendant’s petitioning activities, or whether as a practical matter this new inquiry into plaintiff’s motives will blend into the threshold question of whether the plaintiff’s claim is “solely based on” defendant’s petitioning activity. The SJC remanded Blanchard and a second anti-SLAPP case, 477 Harrison Ave., LLC v. Jace Boston, LLC, SJC 12150 (May 23, 2017), to the trial court to give plaintiffs in both actions the opportunity to meet the new standard.

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