Supreme Judicial Court Issues Ruling Changing the “anti-SLAPP” Statute Practice

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The Massachusetts Supreme Judicial Court issued a decision in Blanchard v. Steward Carney that fundamentally changes how Massachusetts courts will apply the anti-SLAPP (strategic lawsuit against public participation) statute.  

The anti-SLAPP statute, G.L. c. 231 § 59H, was enacted “to counteract SLAPP suits, defined broadly as ‘lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  A movant seeking relief under the statute must show that the claims against her are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.  

Once the movant establishes that the claims are based solely on the petitioning activity, the burden moves to the nonmoving party to show by a preponderance of the evidence that the moving party’s activity had no reasonable factual or legal support and that the nonmoving party suffered damages.

However, the Court reasoned that the “anti-SLAPP statute is meant to subject only meritless SLAPP suits to expedited dismissal, yet it nonetheless may be used to dismiss meritorious claims not intended primarily to chill petitioning.”  As such, the Court augmented the framework set forth in the Duracraft case “by broadening the construction of the statutory term ‘based on.’”  The Court held that a plaintiff can avoid dismissal by showing that its claim was not “brought primarily to chill” the defendant’s exercise of its right to petition.
Now, plaintiffs’ claims may survive a special motion to dismiss by showing that their case was not brought primarily to chill the defendant’s petitioning activities.  The Court instructed trial judges “to assess the totality of the circumstances pertinent to the [plaintiff’s] asserted primary purpose in bringing its claim.”  Rather than reviewing a case based on objective factors, trial courts are now instructed to examine the plaintiff’s subjective motivation.

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