On June 5, 2024, the Massachusetts Bar Association’s Complex Commercial Litigation Section held a panel discussion on the Supreme Judicial Court’s revisiting — yet again — of the analytical framework that has developed around G.L. c. 231, § 59H, commonly known as the anti-SLAPP statute. Brendan Kelley of Conn Kavanaugh Rosenthal Peisch & Ford LLP moderated the panel, which featured Superior Court Justice Rosemary Connolly and Mitchell Perne of Demeo LLP. The topic of conversation: the SJC’s recent companion decisions in Bristol Asphalt, Co. v. Rochester Bituminous Products, Inc., 493 Mass. 539 (2024), and Columbia Plaza Assocs. v. Northeastern Univ., 493 Mass. 570 (2024).
The anti-SLAPP statute is a notoriously wooly beast that has confounded efforts by the judiciary to discipline it and by litigants to effectively manage it to predictable outcomes. The statute’s purpose is simple and salutary: to protect the constitutional right to petition the government for relief, whether legislative, judicial, administrative or otherwise, by establishing a procedure for obtaining the early dismissal of claims that seek to chill that activity by imposing on it the debilitating cost of expensive lawsuits. These debilitating lawsuits are the target of the statute: SLAPP suits, or strategic litigation against public participation.
Achieving this purpose in practice has proven less simple. One reason is the amount of judicial attention that must be dedicated to the mechanism by which the statute operates: a “special motion to dismiss” the claims that violate the statute. As the SJC recognized in Bristol Asphalt, the “special motion to dismiss is strong medicine.” 493 Mass. at 555. It offers the moving party a chance of summarily disposing of claims regardless of their merits and mandatory attorney’s fees if the moving party prevails, all under a presumption in favor of dismissal, unless the opposing party can “prove a negative,” i.e., that the underlying petitioning activity is “devoid of any reasonable factual support or any arguable basis in law.” The deck is stacked against the opposing party.
Another reason for the statute’s difficult application is its broad definition of petitioning activity. The definition goes beyond constitutionally protected petitioning activity to protect speech “even if it involves a commercial motive, with only a limited relationship to issues of public concern.” Id. at 549. This broad definition will often put competing petitioning rights on both sides of the special motion to dismiss in conflict. The moving party argues that the claims it seeks to dismiss chill its petitioning activity, while the opposing party is forced to defend its own petitioning activity in seeking judicial relief. To boot, the special motion to dismiss automatically stays the case, forcing the trial court to wrestle with the high stakes of a special motion under the mounting pressure to decide the motion before any additional progress can be made in the litigation.
Not surprisingly, therefore, the SJC has taken several runs at providing a framework for the efficient, balanced and consistent resolution of special motions to dismiss. Its first effort came in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998), which adopted a construction of the anti-SLAPP statute that excluded its application to claims with a “substantial basis other than or in addition to the petitioning activities implicated.” This framework governed special motions to dismiss for 20 years until the SJC adopted an “augmented Duracraft framework” in Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 (2017) (Blanchard I) and Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200 (2019) (Blanchard II). In the augmented framework, trial courts had to parse claims to isolate the portions that should be dismissed as violating the statute while preserving those portions that did not violate the statute, and opposing parties had a “second path” for defeating special motions to dismiss, namely, showing that its claims were “colorable” and “not raised for the primary purpose of chilling the special motion proponent’s legitimate petitioning activity.” Bristol Asphalt, 493 Mass. at 552. This augmented framework attempted to level the playing field between moving and opposing parties so as to avoid the statute’s application to meritorious claims.
But just as the statute’s salutary intentions proved difficult to administer, the SJC’s evolving efforts to guide its application proved increasingly complicated and burdensome for courts and litigants alike. In Bristol Asphalt, the SJC paid another visit to this framework with an eye on simplifying the framework. In the simplified framework, the moving party must “make a threshold showing through the pleadings and affidavits that the claims against it are ‘based on’ the party’s petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.” At the threshold, the moving party no longer benefits from the requirement that the trial court parse each claim for dismissible versus non-dismissible portions. If the moving party cannot establish that the claim, in its entirety, is based on petitioning activity alone, it fails at the threshold. In the companion case, Columbia Plaza, the elimination of the requirement to parse through claims meant that the special motion to dismiss failed at the threshold. See 493 Mass. at 579.
If the moving party fails at the threshold, then the special motion to dismiss is denied. If the moving party makes this showing, the burden shifts to the opposing party to show that the moving party’s exercise of its right to petition “was devoid of any reasonable factual support or any arguable basis in law” and “caused actual injury to the special motion opponent.” Bristol Asphalt, 493 Mass. at 557. This is the only way the opposing party can defeat the special motion to dismiss once the burden shifts to it. It no longer has the benefit of the “second path” that required trial courts to discern the subjective motives of the opposing party in bringing the claims to begin with.
In short, the SJC abandoned Blanchard I and II in favor of the original Duracraft framework. One more important feature of the simplified framework: the standard of review on appeal is de novo review for both stages of the inquiry. The resolution of the questions raised by a special motion to dismiss is to be “based entirely on a documentary record” for which the trial judge receives “no special deference.” Id. at 560. Time and practice will tell if the Duracraft framework got it right from the start, or will require yet more innovation down the road. One thing is for sure, which is the SJC has opted to chisel away the judicially supplied framework to expose more of the actual language from the statute (“based on said party’s exercise of its right of petition” and “devoid of any reasonable factual support or any arguable basis in law”). This could be viewed as simplification and clarification. Or it could be viewed as an invitation to the legislature to pay its own revisit to the language of the anti-SLAPP statute.
Derek B. Domian is a litigation director with the Boston office of Goulston & Storrs PC. Domian has conducted numerous trials and appeals in state and federal courts as well as arbitrations and mediations. His practice focuses on complex commercial and real property disputes. Domian sits on and previously chaired the Massachusetts Bar Association’s Complex Commercial Litigation Section Council.