Prepared by:

Evan Fray-Witzer
Yurko & Perry, P.C.
100 City Hall Plaza, 5th Floor
Boston, MA 02108
E-mail efw@bizlit.com
(617) 723-6900

Allandale Farm, Inc. v. Koch, Norfolk Sup. Ct., Dortch-Okara, J., November 3, 1997

Complaint for abuse of process. The court found §59H inapplicable to a suit where a defendant, plaintiffs’ employee, counterclaims for abuse of process from a complaint seeking to remove him from plaintiffs’ residential property. Here, defendant’s counterclaim is not based on plaintiffs’ right to petition, but rather their purpose or intent in seeking the relief -- an allegedly unlawful scheme to coerce defendant into settling his employment claims -- "the perversion of the legal process through an ulterior motive or illegitimate purpose is clearly not protected by the statute."

Andover Liquors, Inc. v. Den Rock Liquors, Inc., 5 Mass. L. Rptr. No. 11, 239, Essex Sup. Ct., Whitehead, J., June 17, 1996

Antitrust claims. Held: §59H bars an action under the Mass. Antitrust Act based on allegations that the defendants conspired to avoid competition by organizing opposition to plaintiff's application for a liquor permit. The court granted the special motion to dismiss and awarded fees and costs to defendant even though it acknowledged that there may have been some merit to the antitrust claims.

Bisognano v. Jain, 4 Mass. L. Rptr. No. 30, 671, Middlesex Sup. Ct., Roseman, J., March 18, 1996

Complaint for abuse of process. Held: the party invoking §59H has the initial burden of presenting sufficient facts to demonstrate that the statute is applicable; counterclaims to a claim based on sexual harassment alleging that the plaintiff wrongfully attempted to coerce the settlement of the civil dispute between the parties by threatening to continue pressing for a criminal prosecution is not barred by the SLAPP statute.

Commonwealth v. Chatham Dev. Corp., 1996 WL 653899, Middlesex Sup. Ct., Neel, J., October 22, 1996

Complaint of discrimination. Held: MCAD finding of probable cause with regard to plaintiff's discrimination claims defeats any contention that plaintiff's claims are "devoid" of reasonable factual support or have no sound basis in law; the court allowed plaintiff's special motion to dismiss.

Dunkin' Donuts, Inc. v. Honey Dew Associates, Inc., Norfolk Sup. Ct., Bowen Donovan, J., January 18, 1996

Complaint for abuse of process, conspiracy, 93A. All parties filed special motions to dismiss. The court denied plaintiff's special motion to dismiss because defendant's claims against it were not based on plaintiff's right to petition and granted defendant's special motion to dismiss because defendant's appeal "falls squarely within a party's exercise of its right to petition" and plaintiff failed to show that defendant's right to petition was devoid of any reasonable factual support or any arguable basis in law.

Faes v. Bardsley, Worcester Sup. Ct., Lombardy, J., February 27, 1996

(site plan approval - defendant contends plaintiff brought this action against him because he exercised his right to petition the town for a special permit. Court holds that the legislative intent of §59H and lower court decisions to date do not support a reading of the statute that anyone appealing a decision of a board of appeals or special permit would be subject to a special motion to dismiss.

Gencarelli v. Fleming , Worcester Sup. Ct., Scheier, J., August 13, 1996

Action for trespass. Plaintiff claims defendant filed its complaint for trespass in retaliation against defendants for voicing their complaints to local officials alleging various wetlands violations. The court denied defendant's special motion to dismiss, holding that an action for trespass is not within the realm of actions intended to be precluded by §59H -- no communications of public concern and no exercise of right to verbally address grievances.

Genovese v. Gazette Publications, Inc., Norfolk Sup. Ct., Houston, J., May 20, 1997

Complaint of libel. Plaintiff brought suit against newspaper and two residents of housing project for statements made by the residents in letters to the BHA and by the newspaper with regard to plaintiff's ownership of troublesome rental properties. As to the letter, the court found that the BHA was a "governmental entity" and the submission of letter to it to initiate action was a written statement made to a "governmental proceeding" and therefore granted the special motion to dismiss. As to the newspaper article, the motion to dismiss was denied because allegedly disparaging comments about plaintiff as a landlord are not reasonably likely to enlist public participation.

Jordan v. Murray, Norfolk Sup. Ct., Dortch-Okara, J., June 29, 1995

Complaint of intentional interference with contractual relations and defamation. In an attempt to avoid the SLAPP label, plaintiffs based their complaint solely on the defendant’s communications with potential purchasers of land (who defendant sought to discourage) rather than on defendant's writing of letter s to the DEP, filings to the DEP or her participation in public hearings; the court saw through this tactic and granted the defendant’s special motion to dismiss.

MFP, Inc. v. Martin, Suffolk Sup. Ct., King, J., February 1996

Complaint of defamation, intentional interference with advantageous relations and contractual relations, and false light invasion of privacy. The court granted defendants’ special motion to dismiss, finding that defendants' actions of making statements to various newspapers regarding plaintiff's violation of FCC rules fell within the statute's definition of "right to petition," that plaintiff failed to establish that defendants' statements were devoid of any reasonable factual support or any arguable basis in law, and that plaintiff failed to make a showing of "actual injury".

MacLeod v. Rafferty, 5 Mass. L. Rptr. No. 11, 244, Worcester Sup. Ct., Kottmyer, J., June 17, 1996

Complaint of malicious prosecution. The court declined to award fees and costs under §59H after awarding summary judgment for defendant on malicious prosecution claim; therefore, the court did not reach the merits of the special motion to dismiss.

Margolis v. Gosselin, 1996 WL 293481, 5 Mass. L. Rptr. No. 13, 283, Middlesex Sup. Ct., Smith, J., July 1, 1996

Action for 93A and intentional interference with advantageous relations. Defendant filed a statement with the DEP to block plaintiff's development of land; the court held that §59H does not require that defendants seeking statutory protection be motivated by selfless public interests rather than by commercial gain and granted defendant's special motion to dismiss because plaintiff failed to meet burden of establishing that defendant's activity was devoid of any reasonable factual support or any arguable basis in law.

Municipal Management Assoc., Inc. v. Beauregard, 7 Mass. L. Rptr. No. 21, 494, Middlesex Sup. Ct., Quinlan, J., August 29, 1997

Complaint of defamation. Held: §59H does not protect a governmental official from claims of defamation based on the official's comments to a newspaper reporter as to why the plaintiff's contract for providing parking enforcement services had been terminated, because the statements were not part of an effort to petition the government or solicit public participation in a pending matter.

Nguyen v. Stafford, 7 Mass. L. Rptr. No. 3, 56, Middlesex Sup. Ct., Hamlin, J., July 28, 1997

Complaint of slander and invasion of privacy. Held: §59H applies to activities by a defendant in assisting a third party in obtaining relief in a judicial proceeding; therefore, the statute bars an action for slander and invasion of privacy based on the defendant's conduct in assisting a friend who obtained a protective order against the party asserting the tort claims.

Office One, Inc. v. Lopez, Norfolk Sup. Ct., Cowin, J., July 10, 1997

Complaint of interference with advantageous business relations, slander/defamation, and interference with contractual relations. Defendants made various statements to the FDIC and to unit owners in order to block plaintiff's access to limited number of assigned parking spaces; the court concluded that communication s to the FDIC constituted the exercise of defendants' right to petition and that plaintiff had not met its burden of showing the acts were devoid of any reasonable factual support or any arguable basis in law; as to statements to unit owners regarding the nature of plaintiff's business, these were also part of the larger effort to petition the government and the plaintiff again failed to meet its burden.

Cowin, J., September 30, 1997:
On defendant's motion for reconsideration of the above decision, the court concluded that the counts for (1) aiding and abetting the Trustee's breach of fiduciary duty and (2) civil conspiracy should also be dismissed, finding that this conduct was tied in with the count for breach of fiduciary duty (which was previously dismissed under §59H) and it would be unjust to protect the fiduciary based on the right to petition but not those who aided and abetted and conspired to breach the fiduciary duty.

Cowin, J., November 4, 1997
On defendants' motions for attorneys fees and costs under §59H, the court awarded over $100,000 in attorneys fees, but denied some fees and costs.

Prince v. Prince, Norfolk Sup. Ct., Black, J., September 30, 1997

Complaint of malicious prosecution, abuse of process, and intentional infliction of emotional distress. The court, in light of Duracraft, reaffirmed its prior ruling granting special motion to dismiss regarding actions of reporting Abuse Protective Order violations to police authorities; here, the plaintiff , in his motion, admits of his inability to prove a "sham" petition and acknowledges these activities were grounded in "reasonable factual support" or "arguable basis in law."

Roe v. Doe, Norfolk Sup. Ct., Black, J., February 14, 1997

Complaint of abuse of process and malicious prosecution. The court, noting that an Abuse Prevention Order cannot be modified without judicial authorization, held that plaintiff failed to meet his burden of showing that defendant's act of reporting violations of an Abuse Prevention Order was devoid of any reasonable factual support or any arguable basis in law.

Scanlon v. McHugh, Essex Sup. Ct., Whitehead, J., June 20, 1995

Complaint of fraud. Plaintiffs submitted a special motion to dismiss defendants' counterclaim alleging that the plaintiffs obtained petition signatures fraudulently; the court, although recognizing the standard set forth by §59H and finding that defendants failed to meet their burden under this standard , granted the motion but only as a 12(b)(6) motion to dismiss -- because defendants cannot allege that they suffered any personal loss, the court need not reach the SLAPP issue since the counterclaim is dismissible in any event pursuant to 12(b)(6)).

Sullivan v. Murphy, 5 Mass. L. Rptr. No. 3, 67, Essex Sup. Ct., Whitehead, J., April 22, 1996

Abuse of process claim arising out of a private dispute. Plaintiff sought a declaratory judgment as to her personal interest in certain real estate; this case supports a requirement that a SLAPP suit have some connection to an issue of public concern -- in a case where "the parties are litigating matters of purely private interest, the policies underlying the anti-SLAPP statute are not implicated."

Thomson v. Andover Bd. Of Appeals, 4 Mass. L. Rptr. No. 19, 411, Essex Sup. Ct., Whitehead, J., January 1, 1996

Complaint of defamation. Plaintiffs brought suit appealing issuance of a special permit to defendant; the court granted plaintiff's special motion to dismiss defendant's counterclaim for defamation, finding that the counterclaim was based on plaintiff's letters to the Boston Globe -- exercising their right to petition -- and defendant failed to show this petition was devoid of any reasonable factual support or any arguable basis in law.

Triplett v. Bonneau, Worcester Sup. Ct., Ball, J., July 9, 1997

Complaint of defamation, civil rights violations, malicious prosecution, abuse of process, intentional interference with advantageous relationships, invasion of privacy, and intentional infliction of emotional distress. Plaintiff, a police officer, brought suit against defendant, a police informant, for her statements given to other police officers implicating plaintiff in obstruction of justice (for which plaintiff was subsequently convicted). The court denied defendant's special motion to dismiss, stating that the circumstances of this case do not fall within the purpose of §59H -- there is nothing "strategic" about this lawsuit and there was no ongoing attempt to petition the government.

Wigwam Associates, Inc. v. McBride, 4 Mass. L. Rptr. No. 21, 461, Worcester Sup. Ct., Kottmyer, J., January 15, 1996

Complaint of defamation and intentional interference with contractual and advantageous relationships. Held: §59H does not bar claims by a developer against members of a homeowner’s association based on conduct aimed at interfering with further sales in order to coerce completion of promised improvements. The court denied defendant's special motion to dismiss stating that defendant's actions were not made in the context of petitioning the government as defendant's statements were made to private individuals only and were not reasonably likely to encourage consideration by a public entity or to enlist public participation.

Zoppo v. Foster, 1997 WL 197025, 6 Mass. L. Rptr. No. 25, 543, Norfolk Sup. Ct., Burnes, J., May 19, 1997

Complaint of libel and slander for written statements made by defendant in a letter to the Mass. DEP and oral statements before the Walpole Board of Selectmen. Held: under §59H the burden of production shifts to the nonmovant once it is established that the movant was engaged in the exercise of the right to petition the government. Further, the court likened the rules governing a special motion to dismiss to those governing a motion for summary judgment in that the nonmovant must establish through the use of affidavits that an issue of fact exists as to whether there was any legitimate purpose to the movant's government-petitioning conduct. Here, the court denied defendant's special motion to dismiss finding that plaintiff had met his burden of production under §59H.