One claim at a time: The inherent problems with piecemeal application of the anti-SLAPP statute

Issue Vol. 11 No. 1 January 2009 By Heidi A. Nadel

When the Supreme Judicial Court issued its anti-SLAPP decision earlier this year in Wenger v. Aceto,1 the buzz in the legal community focused on the implications of the decision on the tort of abuse of process. In the midst of the discussion of whether Wenger dealt another — perhaps fatal — blow to abuse of process claims, an even farther reaching aspect of the decision went virtually unnoticed. The Supreme Judicial Court, without discussion of the issue, blessed the use of the anti-SLAPP statute on a claim-by-claim basis by ordering dismissal of only two of the three claims asserted in the Wenger complaint. Some Superior Court judges had already dabbled in a claim-by-claim anti-SLAPP analysis, but Wenger firmly opened the door for piecemeal application of the anti-SLAPP statute. While attorneys and courts are comfortable with partial motion practice and dismissal of less than all claims under Rules 12 and 56, importing these concepts to the anti-SLAPP context undermines the very purpose for which the Legislature created the statute and produces haunting constitutional and practical problems.

I. Legislative intent to dispose of frivolous SLAPP suits

In 1994, the Legislature enacted the anti-SLAPP statute, G.L. c. 231, §59H, to address what it perceived as “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”2 The target of the anti-SLAPP statute is the meritless, disfavored SLAPP suit filed to deter citizens from exercising their right to petition or to punish them for doing so.3 The objective of a SLAPP suit is not to win, but to intimidate an opponent’s exercise of petitioning rights.4 The relevant inquiry under the anti-SLAPP statute should be whether the lawsuit, not a single claim, should be dismissed. When a lawsuit is based on something more or other than petitioning activity, it is — by definition — not a SLAPP suit and it should be permitted to proceed.

When the Supreme Judicial Court examined the anti-SLAPP statute for the first time in Duracraft Corp. v. Holmes Prod. Corp.,5 the Court acknowledged the constitutional “conundrum” created by the literal language of the statute: “By protecting one party’s exercise of its right to petition . . . the statute impinges on the adverse party’s exercise of its right to petition. . . .”6 The Court noted that although the purpose of the anti-SLAPP statute was “to dispose expeditiously of meritless lawsuits that may chill petitioning activity,” the language of the statute failed to track or implement this objective and, as written, ignored potential uses of the statute in litigation vastly different from the typical SLAPP suit.7

To avoid constitutional problems, the Court fashioned a two-prong inquiry for anti-SLAPP motions. The first prong of that inquiry requires a special movant “to make a threshold showing through the pleadings and affidavits that the claims against it are ‘based on’ the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.”8 It is only if the special movant makes this showing that the burden shifts to the non-moving party to make the showing set forth in the statute.9

The Court intended this two-part test to separate SLAPP suits from meritorious lawsuits and, consistent with legislative intent, to allow dismissal of only the former. When a complaint was based on something more than petitioning activity, the entire complaint was permitted to proceed.10 The Supreme Judicial Court in Duracraft was not faced with the question of how the language of the statute or the Legislature’s stated intent might be squared with an analysis that separately analyzed the basis for each claim of a complaint.

II. The statutory language tracks an “all or nothing” approach

If the Legislature intended the anti-SLAPP statute to be applied to only portions of a lawsuit, it did not evidence that intent in the language it used or the procedures it created in the statute. The statute itself speaks of the “case” and “the claims, counterclaims or cross claims,” (plural) against a party, and not of an individual claim or cause of action that is part of the larger case.11 This reading of the statute is consistent with the fact that the statute automatically halts all discovery proceedings until the court rules on the special motion. Consistently, the burden is on the party opposing the special motion to show “good cause” for why it should be allowed to conduct any “specified discovery.”12 Surely, a party should not be forced to file a motion to obtain discovery on its claims that are not the subject of an anti-SLAPP motion. Yet, the practical effect of the statute requires as much. There is no provision in the statute for a partial stay of discovery when a party files a partial special motion or when fewer than all of the claims have any real chance of being dismissed. The Legislature simply did not contemplate a partial motion or a partial win.

The statute’s mandatory fees and costs provision on its face also contemplates an award for a successful special motion and not a “bits and pieces” win. The statute provides: “If the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney’s fees, including those incurred for the special motion and any related discovery matters.”13 If a claim-by-claim analysis is allowed, a party who is only partly successful on a special motion would be entitled to fees and costs for only that portion of the work properly attributed to the successful parts of the motion. How to correctly apportion those fees and costs is likely to be a sorely disputed subject that will require additional litigation and perhaps appellate practice, yet the statute is entirely silent on this subject.14

In sum, the anti-SLAPP statute’s procedural mechanisms are designed to apply to a whole lawsuit and not to each of the claims asserted in a complaint.

III. The Wenger illustration

In Wenger, plaintiff Dr. Harold Wenger gave his former lawyer, Gregory Aceto, a check for $10,000 as payment for legal services already performed. When Aceto deposited the check in his bank account, the bank returned the check with a notation of “insufficient funds.” Aceto next demanded payment from Wenger in writing, accompanied by a threat that he would file an application for a criminal complaint if payment was not made. Wenger notified Aceto that he intended to assert malpractice claims against him. Two days later, Aceto walked into the Dedham District Court and swore out an application for criminal complaint against his former client for larceny by check. The clerk-magistrate considered the application, held an evidentiary hearing, found there was no probable cause for the complaint to issue and denied the application.15

Wenger filed suit for abuse of process, malicious prosecution and violation of 93A, alleging that the application for criminal complaint was “baseless and reckless and filed in a transparent attempt to collect a debt.”16 He coupled this with allegations that Aceto had intentionally mishandled his representation to harm him.17 Aceto filed a special motion to dismiss, alleging the claims against him were based solely on petitioning activity — the filing of the application for criminal complaint. The Superior Court denied the motion, reasoning that there was no arguable legal basis for the criminal complaint because the check was payment for past services and, therefore, did not involve an effort to obtain something of value.18 By the terms of the anti-SLAPP statute, once the Superior Court entered its order, the automatic stay of discovery lifted and discovery proceeded.19 At the same time, Aceto appealed and the Supreme Judicial Court sua sponte took the appeal from the Appeals Court.20

On appeal, the Supreme Judicial Court vacated the order denying the anti-SLAPP motion as to the abuse of process and malicious prosecution claims. The Court found that those claims were based solely on petitioning activity and that Wenger could not meet his burden of showing the application for criminal complaint was devoid of reasonable legal support by pointing to the fact that the clerk-magistrate found no probable cause to issue a complaint.21 The Court, however, affirmed denial of the anti-SLAPP motion with respect to the chapter 93A claim, finding that was a “different matter” because it was based on other allegations, including that Aceto “was negligent, committed legal malpractice, and breached fiduciary duties to [Wenger] in connection with his legal services.”22 As part of its order, the Supreme Judicial Court allowed Aceto’s request for attorney’s fees and costs to the extent they related to the special motion on counts one and two of his amended complaint.23 The Superior Court later awarded Aceto fees and costs associated with his special motion on counts one and two and for discovery that was conducted after the Superior Court’s denial of his special motion.24

So, what is the problem?

Wenger’s case was not a meritless SLAPP suit. For all of its discussion in Duracraft about SLAPP suits and legislative intent, the Court in Wenger nevertheless applied the anti-SLAPP statute to a case that simply did not fit within the description of the type of suit the Legislature intended to prevent. Even accepting the Supreme Judicial Court’s ruling that two of the three claims Wenger asserted in his complaint were based solely on petitioning activity, the fact that the Court found that the chapter 93A claim was based on something more, fundamentally distinguished Wenger’s case from a frivolous SLAPP suit. As such, it simply cannot be said that Wenger filed his case merely to intimidate or chill Aceto’s exercise of his right to petition, and there is no basis to conclude that the case as a whole was meritless. There was no way for Wenger to predict that any of his claims would be subject to dismissal under the anti-SLAPP statute; an experienced Superior Court justice found that they were not. When all was said and done with the anti-SLAPP proceedings, Wenger was left with his chapter 93A claim ripe for further litigation. Dismissal of two of Wenger’s three claims did not terminate the case, did not even necessarily narrow the scope of discovery needed to adjudicate it, and did not further the Legislature’s purpose in enacting the anti-SLAPP statute.25

Applying the procedural mechanisms of the statute in Wenger allowed Aceto to significantly interrupt Wenger’s ability to pursue all of his claims, including the chapter 93A claim, which ultimately survived both the Superior Court’s anti-SLAPP ruling and an appeal. As it turns out, there was no basis for Aceto to seek anti-SLAPP dismissal of the chapter 93A claim, yet discovery on all claims was stayed until the Superior Court entered its order denying the anti-SLAPP motion and an expensive and lengthy appeal on all claims followed.

The encroachment on Wenger’s right to petition went even farther than it might have in a typical case. After he defeated the anti-SLAPP motion in Superior Court, Wenger was finally able to conduct discovery on his claims. As it turns out, however, he did so at his own peril. The statute allows for fees and costs associated with the special motion to dismiss and “related discovery,” which is undefined.26 Once the Supreme Judicial Court reversed the Superior Court on counts one and two, the Superior Court awarded Aceto attorneys’ fees and costs associated with the discovery conducted after the Superior Court’s ruling. If the Superior Court’s fee award in Wenger stands after appeal, the message to litigants will be that it is unsafe to proceed with discovery until the appeal process is completed for fear that some or all of the Superior Court ruling may be reversed. Partial dismissal makes this problem even more difficult. In such instances, parties are forced to litigate not only how much of the work done on a special motion itself should be awarded when only some claims are dismissed, but such things as how much of each deposition taken was spent dealing with the dismissed versus surviving claims. Like Wenger, litigants likely will find themselves in front of the appellate courts more than once just to resolve anti-SLAPP issues.27

IV. Conclusion

The Wenger case is only one illustration of the problems with a piecemeal anti-SLAPP approach, and it is by no means a perfect example. To date, the courts have not squared the language and purpose of the anti-SLAPP statute with a claim-by-claim application of the statute and its sweeping procedural mechanisms. Despite its noble beginnings, the statute has already become — somewhat ironically — a costly and abusive litigation device which has undoubtedly spawned far more litigation than it has saved.28 Although the Supreme Judicial Court has rejected a literal reading of the statute and has tried to balance competing petitioning rights, by silently endorsing piecemeal application of the statute, the Court has given litigants yet one more way to use the anti-SLAPP statute to delay and obstruct meritorious lawsuits.29



1. Wenger v. Aceto 451 Mass. 1 (2008). SLAPP stands for “Strategic Litigation Against Public Participation.”

2. Preamble to 1994 House Doc. 1520. See also Kobrin v. Gastfiend, 443 Mass. 327, 331 (2005) (Legislature enacted the anti-SLAPP statute “to provide a quick remedy for those citizens targeted by frivolous lawsuits based on their government petitioning activities.”).

3. “’SLAPPS are by definition meritless suits.’” Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 164 (1998) (quoting Barker, Common Law and Statutory Solutions to the Problems of SLAPPS, 26 Loy. L.A. L. Rev. 395, 399 (1993)). The statute’s legislative history reveals that the typical mischief that the anti-SLAPP statute was intended to remedy was lawsuits directed at individual citizens of modest means for protesting development projects. Plante v. Wylie, 63 Mass. App. Ct. 151, 156 (2005) (citing Kobrin, 443 Mass. at 336 and Office One, Inc. v. Lopez, 437 Mass. 113, 121-122 (2002)).

4. Duracraft, 427 Mass. at 161 (citing Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-17 (1994) (in turn, citing Pring, SLAPPS: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 5-6, 9 (1989))).

5. 427 Mass. 156 (1998).

6. Id. at 166.

7. Id. at 163, 166.

8. Id. at 167-168.

9. Id. at 168.

10. See, e.g., Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 748-49 (2002) (opposition to redevelopment project before town boards was protected petitioning activity; harassing signs and threats to disrupt project were not; entire complaint permitted to go forward); Garabedian v. Westland, 59 Mass. App. Ct. 427, 432 (2003) (enlisting neighborhood opposition to development project protected; harassing truck drivers and intimidating them was not; entire complaint allowed to go forward).

11. M.G.L. c. 231, §59H.

12. Id.

13. Id.

14. In Fabre v. Walton, the Supreme Judicial Court recognized a right of interlocutory appeal from the denial of a special motion to dismiss. 436 Mass. 517, 521-22 (2002).

15. Wenger, 451 Mass. at 2-3 & n.4.

16. Id. at 8 (quotations omitted). Wenger originally filed abuse and process and malicious prosecution claims, but amended as of right to add a chapter 93A claim.

17. Id.

18. Id. at 7.

19. M.G.L. c. 231, §59H.

20. Wenger, 451 Mass. at 2.

21. Id. at 8. The Court explained that the law did not definitively foreclose the ability to seek a larceny by check based on past services. Id.

22. Id. at 8-9.

23. Id. at 9 n. 10. In accordance with this ruling, Aceto later obtained some portion of the fees and costs he sought relative to his appeal.

24. Order dated August 28, 2008 (Sanders, J.), Wenger v. Aceto, Civil Action No. 2008-00156 (Norfolk Superior Court). The matter of fees is currently on appeal. See Wenger v. Aceto, Appeals Court No. 2008-P-1780.

25. Indeed, while the Supreme Judicial Court found that the abuse of process and malicious prosecution claims were distinct, the facts underlying the chapter 93A claim were part and parcel of the process-related torts and provided proof of the coercive nature of Aceto’s filing. In Adams v. Whitman, 62 Mass. App. Ct. 850 (2005), the Appeals Court recognized that process-based torts are, by definition, based on petitioning activity, but held that where the process invoked is itself coercive or promotes and ulterior advantage, an abuse of process claim will survive the first prong of the anti-SLAPP analysis. Id. at 857. Wenger’s claims reflect precisely the criteria set forth in Adams. The chapter 93A claim placed Aceto’s application for criminal complaint in the context of an attorney who charged too much money for work that was substandard, persistently placed his own interest above those of his client, engaged in a pattern of misrepresentation concerning both the quality and amount of the legal work he did, and then dragged his client into a criminal proceeding when the client did not pay the bill. In the face of these allegations, the abuse of process claim could not be deemed meritless. See id. at 856 (citing Carroll v. Gillespie, 14 Mass. App. Ct. 12, 26 (1982) (initiating process alone was so coercive and promoting of ulterior advantage that it supported an abuse of process claim).

26. M.G.L. c. 231, §59H.

27. These problems can never truly be addressed unless those seeking to invoke the anti-SLAPP statute face some potential downside if they file frivolous special motions. Until that time, there is nothing to stop parties from filing blanket special motions even when they know that less than all (or maybe none) of the claims are based on petitioning activity. In some states, fees are available to an opposing party where an anti-SLAPP motion is found to be frivolous. See, e.g. Cal. Civ. Proc. Code §425.16(c).

28. A search for “anti-SLAPP” in Massachusetts federal and state cases in LEXIS yielded 155 results. This number includes only those cases that are published on LEXIS and does not account for unpublished or unwritten decisions of the Superior Court that are not in the LEXIS database.

29. Certainly, there is a strong temptation to allow parties to seek and obtain dismissal of fewer than all claims under the anti-SLAPP statute when, for example, a plaintiff tacks onto its complaint a single factually-distinct claim based solely on petitioning activity. Fundamentally, however, the anti-SLAPP statute as conceived of, and as written in its current form, was not designed to provide for partial dismissal and as shown in Wenger is ill-suited for it.

Heidi A. Nadel is an attorney at Todd & Weld LLP, where she focuses her practice on complex commercial litigation and civil rights matters.  She was named an “Up & Coming Lawyer” by Massachusetts Lawyers Weekly in September 2008. Nadel has litigated anti-SLAPP issues extensively.