Massachusetts law about anti-SLAPP

A compilation of laws, cases, web sources, and print sources on Strategic Litigation Against Public Participation (SLAPP) in Massachusetts.

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Massachusetts law

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MGL c.231, § 59H Strategic litigation against public participation (SLAPP)
Allows a defendant who believes he has been targeted because of the exercise of his right to petition to file a special motion to dismiss early in the process. Special motion to dismiss may be filed within sixty days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.

Federal law

42 USC §§ 14501 et seq. Volunteer protection act of 1997

Selected case law

477 Harrison Ave., LLC v. Jace Boston, LLC, 483 Mass. 514 (2019)
The steps in the framework used to decide if a case should be dismissed under the anti-SLAPP law must be applied sequentially.

Baker v. Parsons, 434 Mass. 543, 750 NE2d 959 (2001)
For the first time, the SJC decided that the non-moving party must show by a preponderance of the evidence that the moving party's petitioning activities are devoid of any factual support or any arguable basis in law.

Blanchard v. Steward Carney Hospital, Inc. (Blanchard I), 477 Mass. 141 (2017)
Communications by a hospital president to a newspaper were "petitioning activity, where the statements fairly could be said to have been closely and rationally related to a then-pending investigation by the Department of Mental Health (department) and in furtherance of the objective of the hospital's petitioning...however, an electronic mail message that the hospital president sent to all hospital employees concerning the termination of the plaintiff nurses' employment was not petitioning activity, where there was no showing that the message had reached the department or was reasonably likely to do so, and where nothing in the content of the message itself suggested that it was intended to influence the department."

Blanchard v. Steward Carney Hospital, Inc. (Blanchard II), 483 Mass. 200 (2019)
"The judge could conclude with fair assurance that the plaintiffs' claim was colorable and that it was not brought primarily to chill the defendants' legitimate exercise of their right to petition (i.e., the claim was not retaliatory)."

Commonwealth v. Exxon Mobil Corp., 489 Mass. 724 (2022) 
The anti-SLAPP statute does not apply to civil enforcement actions by the Massachusetts Attorney General.

Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 691 NE2d 935 (1998)
This was the first appellate level decision in Massachusetts to address the contents of the anti-SLAPP statute. The court confirmed that the anti-SLAPP statute could be used to protect petitioning activities that don't involve themselves in matters of public concern.

Duracraft Corp. v. Holmes Products Corp., 42 Mass. App. Ct. 572, 678 NE2d 1196 (1997)
Stated that once a party brings a claim under the anti-SLAPP statute, the burden then shifts to the nonmoving party to show that the moving party's claim has no basis, either in fact or in law, and the moving party's claim has actually injured the nonmoving party.

Fabre v. Walton, 436 Mass. 517, 781 NE2d 780 (2002)
Walton had obtained and then extended a 209A restraining order against Fabre. Fabre sued, alleging that Walton had obtained the order to harass him, and hadn't been abused. Walton moved to dismiss the suit. Invoking the Anti-SLAPP statute (c.231 sec.59H), the SJC ruled that Fabre's lawsuit would not be allowed to go forward without a "substantial basis" that the domestic violence claim was "devoid of any reasonable factual support," and that since the order had been extended, the claim must have had some factual support. Clarifying a procedural issue, the court also decided that defendants in such suits have a right to bring an interlocutory appeal to the Appeals Court, "regardless of the court in which the SLAPP suit was brought."

Fustolo v. Hollander, 455 Mass. 861 (2010)
A newspaper reporter writing articles on an issue is not "a party [who] seeks some redress from the government," and thus is not exercising her "right of petition" within the meaning of the anti-SLAPP statute.

In the Matter of Hamm, 487 Mass. 394 (2021)
The "anti-SLAPP" statute, G. L. c. 231, § 59H, does not apply to an objection to a conservator's final account, filed under G. L. c. 190B, §§ 1-401 (e) and 5-418 (e), in the Probate and Family Court.

Kobrin v. Gastfriend, 443 Mass. 327 (2005)
Court held that Anti-SLAPP statute did not immunize a physician from liability for the statements he made about a psychiatrist in his affidavit as an expert witness on behalf of the Mass. Board of Registration in Medicine.

McLarnon v. Jokisch, 431 Mass. 343, 727 NE2d 813 (2000)
Anti-SLAPP statute was found to be applicable to a civil action alleging a violation of civil rights, malicious prosecution, alienation of affection, and intentional infliction of emotional distress arising out of protective orders against the plaintiff.

Office One, Inc. v. Lopez, 437 Mass. 113, 769 NE2d 749 (2002)
Court found that a condominium trustee's communication with the Federal Deposit Insurance Corporation (FDIC) constituted a petitioning activity that was protected under the Anti-SLAPP statute. As a result, the lower court's granting of defendants' special motion to dismiss and awarding of attorney's fees based on Anti-SLAPP provisions were affirmed.

Reichenbach v. Haydock, 92 Mass. App. Ct. 567 (2017)
Explains the Blanchard analysis in depth when a portion of the claim is based on petitioning activity. "'[W]hen ascertaining whether petitioning activity is the sole basis of a claim, the structure of the nonmoving party's complaint ordinarily cannot be dispositive of the matter' because, were the opposite rule to apply, plaintiffs could easily avoid the consequences of the anti-SLAPP statute by 'combining into a single count claims that are based on both petitioning and non-petitioning activities.'" 

Stuborn Limited Partnership, et al. v. Bernstein, 245 F.Supp.2d 312 (D. Mass., 2003)
Anti-SLAPP statute was held to be a state procedural rule that was inapplicable in federal court.

Vittands v. Sudduth, 49 Mass. App. Ct. 401, 730 NE2d 325 (2000)
"Strategic lawsuits against public participation" are defined as meritless suits that use litigation to intimidate opponents' exercise of rights of petition and speech.

Web sources

Public Participation Project
A coalition which is working to pass anti-SLAPP legislation in Congress. Public Participation Project also assists individuals and organizations working to pass anti-SLAPP legislation at the state level and offers a summary of laws and cases for each state. 

Print sources

LexisNexis practice guide: Massachusetts civil pretrial practice, annual, LexisNexis.
Chapter 6. Interlocutory relief: anti-SLAPP and single justice practice.

Massachusetts municipal law, MCLE, 2nd ed., loose-leaf, chapter 7.

Massachusetts tort law manual, 3rd edition, MCLE, loose-leaf, chapter 7, section 7.2.7

Tort law, 3rd ed., (Mass Practice v.37) Thomson/West, 2005 with supplement. Section 6.6. 

"Of sexy phone calls and well-aimed golf balls: anti-SLAPP statutes in recent land-use damages litigation," 36 Urban lawyer 375 (2004).


Last updated: October 14, 2022