Duracraft All Over Again: The Supreme Judicial Court Adopts a “Simplified anti-SLAPP Framework”

by Emily C. Shanahan

The anti-SLAPP statute, G. L. c. 231, § 59H, is intended to provide immunity from suit to a party sued for exercising its constitutional right to petition the government.  The statute allows the party to seek early dismissal of such claims through the procedural device of a special motion to dismiss.  In Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., 493 Mass. 539 (2024), the Supreme Judicial Court (“SJC”) overruled the standard for evaluating special motions to dismiss articulated in Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141 (2017), and Blanchard v. Steward Carney Hospital, Inc., 483 Mass. 200 (2019) (together, “Blanchard”).  In particular, the SJC eliminated two central features of Blanchard:  (1) the “parsing” of claims at the first stage of the special motion to dismiss analysis and (2) the alternative path at the second stage of the analysis.  In Bristol Asphalt, the SJC announced a “simplified anti-SLAPP framework,” which effectively restored the Court’s original analysis under the anti-SLAPP statute announced in Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156 (1998) (“Duracraft”).  The SJC also clarified that on appeal, special motions to dismiss are to be reviewed de novo.

Background – The Anti-SLAPP Statute 

The anti-SLAPP statute creates a two-stage analysis of special motions to dismiss.  The proponent of a special motion to dismiss has a threshold burden of establishing that the claims against it are “based on” its petitioning activity.  If this burden is met, the special motion to dismiss must be granted unless the opponent demonstrates that the special motion proponent’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.  See G.L. c. 231, §59H.

The SJC first interpreted the anti-SLAPP statute in Duracraft, holding that the statute’s words “based on” meant the proponent of the special motion to dismiss must show that the claims against it are based on its “petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.”  427 Mass. at 167-68.  The SJC explained that its interpretation of “based on” “should serve to distinguish meritless from meritorious claims, as was intended by the Legislature.”  Id. at 168.

For close to twenty years, Duracraft remained the standard applicable to special motions to dismiss until Blanchard which introduced changes to both the first and second stages of the special motion to dismiss analysis.  At the first stage, Blanchard permitted the “parsing” of claims which were based on both petitioning and non-petitioning activity.  To the extent a claim was based on non-petitioning activity, the special motion to dismiss would be denied.  The portion of the claim based on petitioning activity would be evaluated at the second stage.  See Blanchard, 477 Mass. at 155.  At the second stage, Blanchard added an alternative path for a special motion opponent to avoid dismissal of its claims.  The opponent could either satisfy its statutory burden to show that the special motion proponent’s petitioning activity did not have a reasonable basis in fact or law, i.e., was a “sham,” or demonstrate, based on a number of factors, that its claim was not brought as a SLAPP suit.  Id. at 159, 160.

Analysis 

In Bristol Asphalt, the SJC reiterated its concern that because the anti-SLAPP statute does not provide an opportunity for the opponent of a special motion to dismiss to show “that its own claims are not frivolous,” the special motion opponent’s constitutional right to petition is infringed.  Bristol Asphalt, 493 Mass. at 550 (internal quotation marks and citation omitted).  The tension between the exercise of the right to petition by both the proponent and opponent of the special motion to dismiss gives rise a “constitutional problem and paradox.”  Id.  The SJC’s interpretation of the words “based on” in Duracraft and Blanchard was intended to resolve this tension and protect the parties’ respective First Amendment rights.

The SJC acknowledged in Bristol Asphalt that the Blanchard analysis had proven to be overly complicated and time consuming.  Bristol Asphalt, 493 Mass. at 553.  With respect to the first stage of the special motion analysis, the SJC overruled Blanchard to the extent it required “the motion judge [to] parse the factual allegations underlying each claim to determine whether a portion of the opponent’s cause of action could be construed as being based on the proponent’s petitioning alone.”  Id. at 554.  At the second stage, the SJC held that Blanchard’s alternative path “stray[ed] from the statutory language” and “involv[ed] consideration of an open-ended list of factors, thereby inviting subjective, if not unpredictable, decision-making.”  Id. at 553.  For these and related reasons, the SJC “eliminate[d] the second path set out in” Blanchard.  Id.

In place of the Blanchard approach , the SJC adopted a “simplified anti-SLAPP framework” for resolving special motions to dismiss which, in essence, restores the analysis in Duracraft.  Bristol Asphalt, 493 Mass. at 555.  Under this “simplified anti-SLAPP framework,” the proponent of the special motion must carry its threshold burden to “show that the challenged count has no substantial basis in conduct other than or in addition to the special motion proponent’s alleged petitioning activity.”  Id. at 555-56.  If the proponent fails to make this showing, the special motion to dismiss will be denied.  Id. at 556.  The SJC noted that the return to the traditional first stage analysis adopted in Duracraft “ensures that the incredibly powerful procedural protections of the special motion to dismiss are appropriately reserved for the narrow category of meritless SLAPP claims that the Legislature sought to target – namely, those based solely on legitimate petitioning activity.”  Id. at 556 (emphasis in original).  The special motion proponent that loses at stage one, however, has the opportunity during “the ordinary litigation process” to demonstrate that its petitioning activity is “entitled to protection from liability under the State and Federal Constitutions.”  Id.

In the event the proponent carries its first stage burden, the burden shifts to the opponent of the special motion to dismiss; the opponent can avoid dismissal only if it carries its burden to show that “the special motion proponent’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 (internal quotation marks omitted) (alteration in original).  The SJC sought to provide guidance on how this standard is satisfied in practice.  Id. at 557-59.  Among other things, where there are conflicting affidavits, “material, disputed credibility issues may not be resolved in the special motion opponent’s favor.”  Id. at 558.  As a result, a special motion opponent may be able to demonstrate that the proponent’s petitioning was a sham only when the proponent’s evidence of the merits of its petitioning is “quite limited.”  Id.  The SJC noted, however, that “when the special motion opponent has submitted evidence and argument challenging the reasonableness of the factual and legal basis of the petitioning, a special motion proponent cannot merely rely on speculation, conclusory assertions, or averments outside of its personal knowledge for the court to identify reasonable support.” Id.

The SJC also clarified that because both stages of the simplified framework “involve the application of a legal standard to documentary evidence alone,” the appropriate standard of review on appeal is de novo.  Bristol Asphalt, 493 Mass. at 561.

Looking Ahead

While the “simplified anti-SLAPP framework” articulated in Bristol Asphalt is intended to eliminate the complications introduced by Blachard, it too may give rise to new challenges.  Among other things, the elimination of parsing at the first stage of the analysis means that a claim based, at least in part, on potentially legitimate petitioning activity will survive a special motion to dismiss; during the course of the litigation, the parties and the trial court may need to litigate and decide the constitutional defenses of the special motion proponent.  With respect to the second stage, Bristol Asphalt leaves unresolved how a trial court should decide a special motion to dismiss where some, but not all, of the special motion proponent’s petition activity is demonstrated to be a “sham.”

Emily C. Shanahan is a litigator at Husch Blackwell LLP.  She was an author of an amicus brief filed on behalf of JACE Boston, LLC and Arthur Leon in Columbia Plaza Associates v. Northeastern University, SJC-13405.