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About the Massachusetts Anti-SLAPP Law

Massachusetts Law

MGL c.231 s. 59H Strategic Litigation Against Public Participation

Federal Law

42 USC 14501 et seq. Volunteer Protection Act of 1997

Selected Case Law

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.

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 do not 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, burden then shifts to the nonmoving party to show that moving party's claim has no basis, either in fact or in law, and 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 had not 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."

Fustulo 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.

Kobrin v. Gastfriend, 443 Mass. 327, 821 NE2d 60 (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.

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.

Other Web Sources

The Anti-SLAPP Resource Center, The First Amendment Project. Substantive site includes how to protect yourself, how to defend yourself against a SLAPP, and sources for assistance.

Print Sources

"Anti-SLAPP Law Can't Be Used in Federal Court," 31 Massachusetts Lawyers Weekly 1229 (February 24, 2003).

"Anti-SLAPP Protection Extends to Cyberspace," 31 Massachusetts Lawyers Weekly 1115 (February 10, 2003).

Massachusetts Municipal Law, MCLE, 2002, chapter 7.

Massachusetts Practice, vol. 10A (Procedural Forms Annotated) West Group, 1990 with supplement, sec. 2388, vol. 37 (Tort Law) Thomson/West, 2005 with supplement, sec. 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).