In Reichenbach v. Haydock, 92 Mass.App.Ct. 567 (2017), the Massachusetts Appeals Court clarified the evolving legal framework used to determine whether a case should be dismissed under G.L. c. 231, § 59H, the anti-Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute. The anti-SLAPP statute can be used to quickly dismiss claims, and win attorney’s fees, in a variety of situations in which the conduct underlying the lawsuit consists of protected “petitioning activity.” Under anti-SLAPP case law, petitioning activity includes a broad range of things. Bringing lawsuits or participating in public meetings where those actions are undertaken to influence, inform, or reach governmental bodies all are protected under the anti-SLAPP statute. In Reichenbach, the Court clarified that where a claim is based on a series or pattern of actions, the actions must be considered together. Where some of the actions are protected petitioning activity, claims involving those actions are subject to dismissal, but claims involving non-petitioning activities are not subject to dismissal.
The Anti-SLAPP Statute
As explained in our previous advisory regarding the important case Blanchard v. Steward Carney Hospital, 477 Mass. 141 (2017), the Massachusetts legislature adopted the anti-SLAPP statute in 1994 in order to combat “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 161 (1998). The statute was adopted, at least in part, in response to a case in which a developer sued several Massachusetts residents for signing a petition opposing a development in their town. Id. The case was eventually dismissed, but the residents incurred over $30,000 in legal fees. Id.
In an effort to protect Massachusetts residents’ exercise of their rights to petition the government, the legislature adopted the anti-SLAPP statute. The statute allows a defendant to bring a special anti-SLAPP motion to dismiss claims that are based on the defendant’s petitioning activity, which is defined by the statute as activities undertaken “in connection with an issue under consideration by a legislative, executive, or judicial body, or any other governmental proceeding.” G.L. c. 231, § 59H. When an anti-SLAPP motion to dismiss is filed, the lawsuit is put on hold until the judge rules on the motion. If the court grants the motion, the moving party is entitled to an award of attorney’s fees.
The ruling in Reichenbach clarifies when a lawsuit, or certain claims, may be dismissed under the anti-SLAPP statute because they are based “solely on petitioning activity.”
The Reichenbach Case
In 2008, the plaintiffs in the Reichenbach case (“Plaintiffs”) bought an oceanfront property with the plan to demolish the existing house and build a new residence. Defendants, nearby property owners (“Defendants”), engaged in a series of actions to prevent the construction of the new residence. The Defendants undertook protected petitioning activities (e.g., opposing the project at town conservation committee meetings, opposing and appealing approvals from the Massachusetts Department of Environmental Protection), and also allegedly engaged in unprotected nonpetitioning activities (e.g., obstructing access to Plaintiffs’ property, removing wooden boundary stakes installed by Plaintiffs).
In 2014, Plaintiffs completed their new residence and received their certificate of occupancy. In 2015, Plaintiffs brought this lawsuit, claiming that Defendants had deprived them of their constitutional right to enjoy their property in violation of the Massachusetts Civil Rights Act, G.L. c. 12, §§ 11H and 11I (the MCRA). Defendants sought to dismiss the lawsuit under the anti-SLAPP statute, asserting their actions constituted protected petitioning activity.
Holding: The Court held that because Plaintiffs’ claim under the MCRA was based on a series of actions (both petitioning and non-petitioning) that, considered in their totality, constituted threats, intimidation, or coercion, the claim could not be dismissed under the anti-SLAPP statute.
The Court cited Blanchard for the proposition that where individual underlying actions can each independently support a cause of action, a court should analyze the actions separately, and may dismiss certain claims, or parts of claims, that are based on petitioning activity. In Blanchard, the plaintiffs’ defamation claim was based on two separate actions, one based upon petitioning activity, and the other based upon non-petitioning activity. There, the Court separated out the claim as to these two separate actions, and held that the claim may be subject to dismissal under the anti-SLAPP statute in part, insofar as it was based on petitioning activity. In Blanchard, the Court remanded this piece of the plaintiffs’ claim to the lower court for a determination as to whether this piece of the claim was brought primarily to chill the defendants’ exercise of their petitioning activity, in which case it should be dismissed under the anti-SLAPP statute. The Court denied the anti-SLAPP motion to dismiss as to the other piece of the claim, which was based upon non-petitioning activity.
In Reichenbach, the Court held that, under Blanchard, Plaintiffs’ MCRA claim should not be dismissed under the anti-SLAPP statute because it was based on a series of actions that must be considered in their totality.
The Takeaway: Reichenbach clarifies the softening of jurisprudence concerning the anti-SLAPP statute, which has stood for many years as a strong disincentive to real estate developers and others who consider counter-suing parties who object to and appeal from various permits granted to the developer. The case holds that if a claim is based upon a series of actions (both petitioning and non-petitioning) the claims regarding non-petitioning activities could survive a motion to dismiss under the anti-SLAPP statute. That said, the jurisprudence surrounding the anti-SLAPP statute continues to evolve, and the potential for a motion to dismiss under the anti-SLAPP statute should still be carefully considered before bringing any claims that may be based, in whole or in part, upon protected petitioning activity