Massachusetts

To challenge a lawsuit as a SLAPP suit in Massachusetts, a defendant must show that the cause of action is based on the defendant’s exercise of his right of petition under the federal or Massachusetts Constitutions. Mass. Gen. Laws ch. 231, 59H (2011).

Under the statute, the petition right includes five categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements reasonably likely to encourage a governmental body’s consideration of an issue; statements reasonably likely to enlist public participation in an effort to bring about such governmental consideration; and any other statements protected by the constitutional right to petition the government.

However, the state’s highest court has limited this petition right definition to statements made on one’s “own behalf” and thus found the anti-SLAPP law inapplicable to a journalist’s objective, factual news report, even though the account concerned an issue under review by a governmental body and aimed to enlist public participation in the matter. Fustolo v. Hollander, 920 N.E.2d 837 (Mass. 2010).

The Massachusetts anti-SLAPP law allows a defendant to file a motion to dismiss the complaint, which the court will hear and decide “as expeditiously as possible.” Mass. Gen. Laws ch. 231, 59H. Discovery activities are placed on hold from the time the motion is filed until the court rules on it, although the judge, after a hearing on the matter, may order discovery to be conducted if the requesting party can show good cause for it.

The judge will grant the motion unless the plaintiff can show that the defendant’s claimed exercise of the petition right lacked any reasonable factual support or arguable basis in law and his acts caused actual injury to the plaintiff. In making this determination, a Massachusetts court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to dismiss and any sworn statements containing facts on which the assertions in those documents are based.

Massachusetts’ anti-SLAPP statute includes a provision allowing the state attorney general, on his own behalf or on behalf of any governmental body to which the SLAPP defendant’s acts were directed, to intervene to defend or otherwise support the defendant in the motion to dismiss.

Notably, a SLAPP defendant sued in federal court in Massachusetts may not be able to rely on the anti-SLAPP statute because the federal court there has held that the measure is a procedural rule that is inapplicable in federal court. Stuborn Ltd. P’ship v. Bernstein, 245 F. Supp. 2d 312 (D. Mass. 2003).

If the court denies the motion, the defendant is entitled to appeal that decision immediately. Fabre v. Walton, 802 N.E.2d 1030 (Mass. 2004). However, if it grants the motion, the court will impose costs and attorney fees on the other party. Mass. Gen. Laws ch. 231, 59H.