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July 7, 2017

Legal Update
Dylan Sanders

First Circuit sends key Anti-SLAPP question to Massachusetts SJC

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A landscape architect is hired to assist a neighborhood association in opposing the proposed construction of a nearby house, and submits renderings of the house to the local conservation commission. The developer claims that the representations of the house are false and defamatory, and sues the firm. Can the landscape architect claim that the firm is engaged in constitutionally protected government-petitioning activities, and invoke the “Anti-SLAPP” statute that bars use of the courts to silence such activities?

This is the essence of a question the federal First Circuit Court of Appeals recently sent to the Massachusetts Supreme Judicial Court for its response in Steinmetz v. Coyle & Caron, Inc. The important constitutional and land-regulation issues in the case have drawn the attention of the American Civil Liberties Union and free-press advocates as well as developers and their opponents. The certification of the question to the state high court promises another important Anti-SLAPP decision close on the heels of the SJC’s decision in Blanchard v Steward Carney Hospital, Inc. earlier this year.

For all the weight of those issues, the plot is a simple one. The Steinmetzes filed a notice of intent with the Cohasset conservation commission in pursuit of their plans to build a house on a peninsula known as James Island. A group of neighbors, calling themselves the James Island Preservation Group, organized to oppose the construction of the house. The group’s attorney hired a Florida landscape-design firm, Coyle & Caron, to prepare renderings of the Steinmetzes’ proposed house for submission to the conservation commission, which the firm did. At least one of the renderings was posted on the Facebook page of the preservation group, as result of which, the Steinmetzes claimed, they were attacked and ridiculed on social media.

The conservation commission voted 4-2 to deny the Steinmetzes an order of conditions; the written decision said that the proposed driveway would harm a nearby salt marsh. The Steinmetzes then sued Coyle & Caron in federal court for negligence, defamation, and violation of the Massachusetts unfair business and consumer-protection statute Chapter 93A. They alleged that the renderings submitted to the conservation commission, and the one posted to Facebook, were false, fraudulent and defamatory depictions of the proposed project, and had what they termed a “dramatic” and adverse impact on the conservation-commission proceedings.

Coyle & Caron responded with a “special motion to dismiss” under the Massachusetts Anti-SLAPP statute. As we recently reported in another context, the Massachusetts legislature enacted the Anti-SLAPP statute in 1994 to discourage “strategic litigation” — lawsuits brought not so much to win relief as to intimidate parties from exercising their constitutional free-speech rights, including the right to “petition” the government.

To discourage such SLAPP suits, the statute provides a mechanism for parties faced with such an action–the “special motion to dismiss.” The motion can be made early in a case, before expensive discovery. If the defendant can persuade the court that the lawsuit is a prohibited SLAPP suit, the matter is dismissed, and the party who brought the suit must pay the other’s attorney’s fees.

Coyle & Caron argued that the Steinmetzes’ suit was a SLAPP action. The trial court agreed, and granted the special motion to dismiss.

On appeal, the First Circuit agreed with the trial court that Coyle & Caron met its initial burden of showing that the suit was based solely on protected “petitioning” activities: the renderings at issue had been submitted to the conservation commission as part of an effort to persuade that government body in its deliberations on the Steinmetzes’ permit application, and a landscape architect from Coyle & Caron had appeared at a conservation commission hearing to present the renderings.

Under the law governing dismissal of prohibited SLAPP suits, the burden then shifted to the Steinmetzes to show that the Coyle & Caron renderings lacked any basis in fact—that the “petitioning” activity was a sham. Again, the First Circuit agreed with the trial court that this burden had not been met; the firm’s renderings were based—whether accurately or not—on the publicly available design plans for the Steinmetz home.

The First Circuit also had no difficulty agreeing that the Steinmetzes had failed to demonstrate that their suit was brought for a legitimate purpose—that is, for a purpose other than primarily to chill petitioning activity. At least three of their claims, the court held, had no merit: the negligence and gross negligence claims, since Coyle & Caron could owe no legal duty of reasonable care toward the Steinmetzes; and the chapter 93A claim, since there was no commercial relationship between the Steinmetzes and Coyle & Caron. (The First Circuit disagreed with the trial court’s similar conclusion about the defamation claim, holding that it was colorable, but that in the event of a remand the trial court could nevertheless conclude that the claim was motivated by an intent to chill petitioning activity.)

What gave the First Circuit pause was whether Coyle & Caron, as a third-party contractor, was entitled in the first place to the protections of the Anti-SLAPP statute.

The text of the statute limits its protections to a person targeted in a legal action based on her own exercise of her right to petition the government. Decisions of the Massachusetts Appeals Court have extended the statute’s protections to certain third parties who assist in petitioning activity, such as attorneys for or employees of petitioners. And the Massachusetts Supreme Judicial Court has done the same both for organizations such as unions who support petitioning activities, and for a scientist who submits information to a government body that is considering a potential development. But the SJC has elsewhere suggested that the statute may not protect vendors whose role is limited to supplying services to petitioners, such as a consultant like Coyle & Caron.

The First Circuit therefore perceived uncertainty over the limits of protection for third parties under the Anti-SLAPP statute. And though neither party asked the court to do so, the court certified the following question to the Massachusetts SJC: “Can Coyle & Caron, a third party contractor that made submissions to a governmental body for the purpose of assisting in its private client’s petitioning activity, avail itself of special motion provision [of the Anti-SLAPP statute]?” If the SJC holds that the Anti-SLAPP statute indeed applies to Coyle & Caron, the negligence and Chapter 93A claims will be dismissed, with only the defamation claim subject to further consideration by the trial court on Coyle & Caron’s special motion to dismiss.

It will be interesting to see the SJC’s take on this critical question concerning the scope of the Anti-SLAPP law’s protections.