Supreme Judicial Court of Massachusetts Confirms Anti-Slapp Provisions Apply To “Protected Petition Activity”

On February 14, the Supreme Judicial Court of Massachusetts reviewed the application of the state’s “anti-SLAPP” law to challenges made against a blogged critique of Cardno Chemrisk, LLC (Chemrisk) and British Oetroleum (BP) in the case of Cardno Chemrisk, LLC v. Cherri Foytlin & Another, confirming that it protects pamphleteers/bloggers.

Following the 2010 Deepwater Horizon Oil Spill, Chemrisk, a scientific consulting company, was engaged by BP to assess the toxic effects of the oil spill on cleanup workers. Chemrisk concluded that any exposures were “substantially” below the permissible limits set by the Occupational Safety and Health Administration (OSHA). Two environmental “activists” took exception to the conclusion, and produced a very critical review of Chemrisk’s report on the chemicals benzene, toluene, ethylbenzene, and xylene (collectively known as “BTEX”) and published their critique in the Huffington Post. They were critical of BP’s environmental record, and the reports Chemrisk prepared in the “Erin Brokovich case.”

Chemrisk demanded a retraction, and when this was not forthcoming, sued the activists for defamation in New York and Massachusetts. The New York litigation was dropped, and the Massachusetts litigation commenced in 2014. In 2015, the defendants filed a “special notice” to invoke the protective provisions of the Massachusetts “anti-SLAPP” law, but this motion was denied by the trial court which held that the defendant’s blog posting did not concern or advance the defendant’s own interests, but those of the cleanup workers.

The Supreme Judicial Court of Massachusetts has now ruled, in a unanimous opinion, that the lower court’s decision was erroneous, and that the Massachusetts “anti-SLAPP” law applies. The defendants were engaged in a “protected petition activity” which was the sole basis of the plaintiff’s defamation claim and, therefore, they met the threshold burden imposed by the law. The burden then shifted to the plaintiffs to provide by a preponderance of the evidence that the allegations in the blogged article were devoid of any reasonable factual support or arguable basis in law,” and the plaintiffs failed to meet this test.

The case was remanded to the trial court to enter a judgment consistent with the Supreme Judicial Court of Massachusetts’ opinion, and the defendants were authorized to apply for reimbursement of their appellate fees and costs.