Auditors are people too. They make mistakes and when they do, they can be sued and held liable for them. Sometimes.

But what if a company sues its independent auditor for failing to find a company employee's fraud in its annual audits?

Should an auditor escape liability if agency law holds the company responsible for its employee's fraud?

Most courts say yes.

The Supreme Judicial Court will answer this question in Massachusetts this year in

Merrimack v. KPMG. The Court's focus is on whether it should create an "auditor exception" to the in pari delicto defense. Or at least that is the issue it solicited amicus briefs on.

What is in pari delicto?

The in pari delicto doctrine bars a plaintiff who participated in wrongdoing from recovering damages or any loss resulting from the wrongdoing. Choquette v. Isacoff, 65 Mass. App. Ct. 1, 3 (2005). It reflects an equitable and policy judgment that courts should "not lend aid to parties who base their cause of action on their own immoral or illegal acts." Id. at 4. The doctrine does not create an absolute bar to recovery. If both parties engaged in misconduct, the "less guilty" party may be able to recover damages or obtain equitable relief. Id. (quoting Council v. Cohen, 303 Mass. 348, 354 (1939), and Berman v. Coakley, 243 Mass. 348, 350 (1923)).

“In pari delicto” translates to "in equal fault.” It comes from a long-standing equitable maxim, “in pari delicto potior est conditio defendentis,” that can be translated as “[i]n a case of equal or mutual fault, the position of the [defending party] is the better one.” Baena v. KPMG LLP, 453 F.3d 1, n.5 (1st Cir. 2006) (quoting Black’s Law Dictionary).

What's Happening with Merrimack College v. KMPG, LLC?

The facts.

Merrimack's financial aid director awarded fake federal Perkins loans to non-existent and dead students and to existing students who had never applied, all allegedly to give the college access to more federal money and to make it appear as if the school had a balanced financial aid budget (and allegedly to save her own job).

After Merrimack discovered the fraud and the financial aid director pleaded guilty to federal criminal charges of wire and mail fraud, Merrimack sued KPMG. Merrimack alleged that KPMG noticed discrepancies in the school’s Perkins loan records during its annual audits but did not follow up on them and failed to discover the fraud.

What's happened so far?

KPMG invoked the in pari delicto doctrine in its motion for summary judgment. It argued that agency law attributed the financial aid director’s fraud to Merrimack and that Merrimack was, therefore, more at fault than KPMG and should not be entitled to recover damages from KPMG for negligence.

The trial court (Salinger, J.) agreed.

First, the court held that Merrimack was legally responsible for the financial aid director's fraud because she committed it squarely within the scope of her employment and intended, at least in some part, to benefit the college.

Second, the Court held that the “intentional misconduct by Merrimack's agent in authorizing fraudulent Perkins loans [was] far more serious than KPMG's failure to ferret out that fraud when auditing Merrimack's finances.” As a result, the court concluded that Merrimack's claims against KPMG were therefore barred by the in pari delicto doctrine.

The trial court expressly refused to recognize an “auditor exception” to the in pari delicto doctrine on public policy grounds because, it held, the “proposal would ‘creat[e] a double standard whereby the innocent stakeholders' of the outside auditor 'are held responsible for the sins of their errant agents while the innocent stakeholders of' the entity injured by its employee's fraud 'are not charged with knowledge of their wrongdoing agents.’” (quoting Kirschner v. KPMG, LLP, 938 N.E.2d 941, 958 (N.Y. 2010) (applying New York law)). The court explained that Merrimack had not shown a “compelling public policy justification for letting entities that were injured by the deliberate fraud of their employees sidestep the in pari delicto doctrine and shift responsibility to an independent auditor that negligently failed to discover the fraud.” The court also noted that only one state - New Jersey - had recognized an auditor exception and that other states had considered and rejected such an exception.

Merrimack appealed.

The appeal is now fully briefed. In addition to the parties' briefs, the American Institute for Certified Public Accountants (AICPA) and the Massachusetts Society of Certified Public Accountants filed an amicus brief in January in support of KPMG.

The brief argues that the Court should not recognize an auditor exception because, among other reasons: (1) management, not the auditor, is responsible for preventing and detecting fraud; (2) to recognize an exception would allow the company to shift the cost of its own employee's wrongdoing entirely to the auditor and reduce the company's incentive to hire honest employees and to monitor their behavior; and (3) auditors already have plenty of incentives to do their jobs right.

Amicus Announcement.

Last month, the SJC invited amicus briefs in the case on the question of whether it should recognize an "auditor exception" to the in pari delicto doctrine to allow a client to assert a claim for negligence against an independent auditor that fails to detect fraud or misconduct by the client's employee in connection with annual audits. So far, no new amicus briefs have been filed.

What's Next?

According to the SJC docket, the Court plans to hold oral argument in May, but has not yet set a specific date.

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*Note: an earlier battle in the case stemmed from KPMG's efforts to invoke an arbitration agreement in an engagement letter that post-dated the audit work at issue in this case. The Appeals Court affirmed the trial court's refusal to order arbitration on the grounds that nothing in the later engagement letter indicated that its terms were intended to be retroactive. The SJC denied FAR.

The Supreme Judicial Court in its recent decision in Koshy v. Sachdev (SJC-1222)issued its first interpretation of the Massachusetts G.L. c. 156D, section 14.30, the Massachusetts corporate dissolution statute, and held that a 50% shareholder who had demonstrated “true deadlock” could proceed with a petition for involuntary dissolution.

The Massachusetts Supreme Judicial Court issued two anti-SLAPP decisions today and significantly changed ("augmented") the two-pronged anti-SLAPP analysis it adopted in 1998 in Duracraft Corp. v. Holmes Prods. Corp.

Before today, it was fairly wide accepted that:

(1) anti-SLAPP analysis was conducted on a claim by claim basis, i.e., the initial question was whether any single claim was based solely on petitioning activity and, if so, if the petitioning activity was devoid of a reasonable factual or arguable legal basis; and

(2) if a claim was based solely on petitioning activity, the only way (and virtually impossible way) to overcome an anti-SLAPP motion was to prove, by a preponderance of the evidence (without discovery and on paper only) that the petitioning activity was devoid of a reasonable factual or arguable legal basis.

Then came The decision has a little something for everyone. The background of the case is discussed here and here.

The two most pivotal points from today's decision are:

(1) claims as alleged by plaintiffs are no longer taken as they are pled; if a claim could have been pled separately as two or more claims, with any claim based solely on petitioning activity, then an anti-SLAPP movant can meet its burden of showing that a claim (or a hypothetical separate claim) is based solely on petitioning activity;

BUT

(2) a non-moving party can defeat an anti-SLAPP motion even if a claim (or the hypothetical claim) is found to be based solely on petitioning activity by showing EITHER that the petitioning activity is devoid of a reasonable basis in fact or arguable basis in law OR that its claim (seen as a whole - perhaps as pled?) was not brought to chill petitioning activity.

This is a significant departure from Duracraft both in favor of moving parties and i n favor of non-moving parties, all in an effort to balance competing constitutional rights. Time will tell if this helps litigants and courts navigate the anti-SLAPP maze that is Massachusetts law or only complicates it further.

In Blanchard there was a defamation claim based both on statements to the Boston Globe and in an internal email. The trial court and the SJC found that the Boston Globe statements were petitioning activity and the email was not. The SJC agreed that since the claim could have been alleged as separate defamation claims, one based on the Boston Globe statements and one based on the email, the defendants met their burden of showing that the hypothetical defamation claim based only on the Boston Globe statements was "based solely" on petitioning activity.

The anti-SLAPP motion was properly denied as to the hypothetical separate claim based on the email statements.

With respect to the Boston Globe statements, the SJC thus remanded and the plaintiffs now must attempt to show that the Globe statements are without reasonable basis in fact or arguable basis in law or "failing that" that their claim "viewed as a whole" (as alleged, apparently, to include both the Globe and email statements) was not aimed at chilling petitioning activity. If they can make either showing, the motion will be denied. If not, it will be allowed as to the Globe statements portion of the defamation claim.

also issued today. In that case, which is also discussed in more detail here,the SJC found that the moving party had established that an abuse of process claim, but not a 93A claim, was based solely on petitioning activity. The Court noted that while the trial court had not reached the second phase of the anti-SLAPP analysis, it was clear from the record that only some of the petitioning activity that made up the abuse of process claim could be found to be without basis in fact or law (noting that before Blanchard, this meant that the non-moving party could have proceeded on the abuse of process claim, but only as to the petitioning activity that was without basis).

BUT, the Court applied Blanchard and remanded to allow the non-moving party to show that the abuse of process claim as a whole was not filed to chill petitioning activity.

For more - Join us at the Boston Bar Association on June 6, 2017 at 12:30 for

Register here.

And stay tuned. The fun never ends.

The Supreme Judicial Court clarified the burden a shareholder must meet to obtain corporate records under chapter 156D, section 16.02(b) last week in Using a Russian proverb, an analog to a well-known Biblical verse, and a biting observation about the underlying litigation, the Court added some color to the somewhat mundane topic of statutory shareholder inspection rights.

Ultimately, the Court held that (1) the trial court, which had applied a standard derived from Delaware law to the inspection request and dismissed the shareholder's complaint for court-ordered inspection after a one day bench trial, imposed too stringent of a burden on a shareholder who sought records to "investigate his allegations" in his previously-rejected derivative demand that the board of directors had committed a breach of its fiduciary duty of oversight with respect to the company's financial reporting and insider stock sales and (2) the shareholder's request for inspection far exceeded the scope of permissible inspection under the statute.

Defendant Vertex Pharmaceuticals, Inc. develops and manufactures drugs for treatment of serious diseases.

Plaintiff is a shareholder in Vertex.

In the Spring of 2012, Vertex issued a press release announcing the interim results of a "phase two" study regarding the effectiveness of two of its drugs to treat cystic fibrosis. The announcement suggested a medical breakthrough. The company's stock price rose.

3 weeks later, Vertex issued a new press release, which suggested the phase two study did not reflect a medical breakthrough. The company's stock price declined.

In between the first and second press releases, Vertex officers and directors sold $37 million in corporate stock.

The Derivative Demand.

In November 2012, plaintiff wrote to the Board of Directors detailing alleged "false and misleading statements" in the first press release and identifying officers and directors he contended had wrongfully engaged in insider trading before the second announcement. He demanded that the Board initiate litigation against the responsible parties.

The Board established a special committee of independent directors to investigate the plaintiff's allegations and retained outside counsel to assist in the investigation. Ultimately, the Board informed plaintiff that the committee had completed its investigation and reported findings to the Board and that a majority of independent directors had determined there was no wrongdoing that that a lawsuit as not in the company's best interests.

The Inspection Request.

The shareholder then made a written inspection request seeking access to the seven categories of corporate records "to investigate potential wrongdoing, mismanagement, and breaches of fiduciary duties" by the Board or others.

He sought records and minutes of all Board and special committee meetings, the special committee's report and all drafts, all documents distributed to the Board or special committee, all documents regarding he phase two study results, copies of all policy and procedure manuals and documents describing internal control practices for selection and oversight of contractors to perform trials and studies, and calendars to show number and duration of Board and special committee meetings

The Board rejected the request, stating that (1) it was not made for a proper purpose because it sought records to investigate wrongdoing, but "failed to present a credible basis to infer there were legitimate issues" warranting further review; (2) there was no proper purpose for the request because it sought discovery in support of the derivative demand allegations when such discovery would be unavailable even if the shareholder had commenced a derivative lawsuit since the company would be entitled to dismissal; (3) the request was overbroad and beyond the statutory scope; and (4) the Board made a good faith determination that disclosure would adversely affect the corporation and its business.

The records lawsuit

The shareholder sued.

After more than two years and after a one day bench trial the trial court dismissed the lawsuit with prejudice.

Although recognizing that the shareholder's right to inspection would be limited to 16.02 records, the trial court "concluded that the plaintiff was not entitled to inspect even this narrow swath of records because he had failed to meet his burden of showing a proper purpose."

The judge concluded that where a shareholder seeks to inspect corporate records under section 16.02(b) to investigate allegations of corporate wrongdoing, the shareholder "must present some evidence of wrongdoing." Since there was no evidence calling into question the independence or diligence of the special committee, the shareholder failed to meet this standard.

The trial judge also reasoned that if the plaintiff had filed a derivative lawsuit, it would be subject to dismissal and all discovery would be stayed pending dismissal, so the shareholder would not be entitled to the same materials in discovery.

The SJC's Decision.

The SJC opened its explanation of its decision with the following observation: "Viewed from the perspective of the appellate bench this was an expensive litigation war of attrition that was fought over nearly nothing."

The Court nevertheless vacated the dismissal and remanded for further proceedings consistent with its opinion.

First, the Court ruled that the 7 categories of records demanded "far exceeded" the scope of records within the right of inspection under section 16.02(2).

The Court concluded that the only records within those categories that may be subject to inspection were "excerpts of minutes or comparable records that reflected the actions taken at meetings of the board of directors or meetings of the special committee." As the Court explained, the drafters made clear that inspection rights extend to votes or actions on relevant matters, not to reports, discussion or decisions not to act.

Second, the Court ruled that the trial court erred in using the Delaware standard to determine if the shareholder had a proper purpose because Delaware's statute allows for inspection of "books and records" generally and, therefore, of a greater scope of records than the Massachusetts statute.

The Court explained that "[t]he inverse of the Biblical adage that to whom much is given, much is expected is that to whom less is given, less is expected."

The Court went on, "Where a shareholder seeks corporate books and records under [section] 16.02(b) and claims a proper purpose of investigating corporate wrongdoing or mismanagement, the shareholder demonstrates a proper purpose where he or she identifies particular facts and circumstances that permit a reasonable inference that the requested books and records would possibly reveal information that would tend to indicate the existence of corporate wrongdoing or mismanagement.

Where a shareholder has made a derivative demand, based on allegations of inider trading after an inaccurate press release, the shareholder had a proper purpose in asking to inspect the excerpts of the original minutes of the Board meetings and special committee meetings that reflect the actions taken at those meetings regarding the requested derivative action.

As the Court noted, the shareholder's is entitled to "trust, but verify", as the proverb goes. The shareholder's desire to verify actions by the special committee and the Board in response to his allegations is a purpose that is "reasonably relevant to the demanding shareholder's interest as a shareholder."

The Court also rejected any connection between the right to inspect and the availability of discovery in a derivative lawsuit, noting that the statute makes the right to inspection independent of any other right to obtain records. It also did not address the scope of any remaining common law right to inspection since that issue was not before it.

This blog is for informational purposes only, does not create an attorney-client relationship or any relationship and is not legal advice and should not be relied upon as such. Please read our disclaimer.

(c) 2017 Cross Nadel LLC and www.crossnadel.com. All rights reserved.

The Appeals Court issued today issued

Facts

Gillette filed a lawsuit against former employees who it claimed gained access during their employment to Gillette's confidential information and trade secrets, and one of Gillette's competitors, ShaveLogic, which hired the former employees. Gillette alleged that the former employees misappropriate trade secrets and other confidential information to develop a wet-shaving razor for the benefit of their new employer, ShaveLogic.

ShaveLogic counterclaimed, alleging that Gillette filed its lawsuit in bad faith.

Gillette moved to dismiss, arguing that its filing of the lawsuit was petitioning activity protected by the anti-SLAPP statute, G.L. c. 231, section 59H, and was protected by the litigation privilege. The trial court (Sanders, J.) denied the motion. Gillette filed an immediate, interlocutory appeal.

Anti-SLAPP

The Appeals Court affirmed the trial court's denial of the anti-SLAPP motion. It confirmed, as the parties agreed, that the conduct at issue on the abuse of process claim was Gillette's petitioning activity and moved on to the second phase of the anti-SLAPP analysis, namely whether ShaveLogic proved by a preponderance of the evidence that the petitioning activity was without reasonable basis in fact or arguable basis in law and caused actual injury. The Court concluded that the trial court could have condluced" that ShaveLogic had met this burden and affirmed denial of the anti-SLAPP motion.

First, the Court confirmed that appellate review "is limited to determining whether the judge committed an abuse of discretion or other error of law" and also actually applied that standard. While this has been the standard of review since at least 2001 when the SJC established it in Baker v. Parsons, Courts often seem to give lip service to the standard: they recite it, cite Baker, but then engage in what looks an awful lot like de novo review.

The Gillette Court, however, not only cited, but stuck to the abuse of discretion standard and asked itself whether on the record before it, the trial court "could have" reached the conclusion it reached, namely that ShaveLogic, as the non-moving party met its burden to show the petitioning activity lacked reasonable basis in fact and caused actual injury.

The Court explained that ShaveLogic had put in affidavits of the former employees who all denied working on projects at Gillette involving the wet razor's elements and denied using any confidential information they obtained while working there. ShaveLogic also provided an affidavit from another individual who asserted he had invented the design for the wet razor a year before the former GIllette employees joined ShaveLogic and backed up the assertion with design drawings.

Gillette offered only an affidavit from its lawyer that stated Gillette had sent pre-litigation letters threatening a lawsuit and filed the lawsuit in good faith to protect its intellectual property and investment in confidential product development. But Gillette admitted at oral argument that various elements of the razor were in the public domain since 1919 and others were publicly known before the individual defendants joined Gillette. The Court agreed with the trial judge that the complaint was "bare bones" and contained "only conclusory allegations" about the individual defendants' misappropriated confidential information.

The Court found that on this record the trial "judge was within her discretion to find by a preponderance of the evidence that Gillette's complaint lacked a reasonable basis in fact."

Second, the case is noteworthy because it joins only a few other cases that not only deal with the second part of the anti-SLAPP analysis, but find the petitioning activity to be without reasonable basis. Ever since the SJC issued Fabre v. Walton in 2004 and even more so since it decided Benoit v. Frederickson in 2009, and reinforced the notion that competing affidavits will end with anti-SLAPP dismissal, it has been even more difficult for a party to overcome an anti-SLAPP challenge if the claims challenged were based on petitioning activity. The finding of petitioning activity was often the death knell for a case.

The SJC in Van Liew recently made it seem at least possible that non-moving party might meet the burden of showing petitioning activity was devoid of reasonable basis in fact or law, but dealt with political speech used as a basis for an anti-harassment order. Gillette deals with the issue in the context of a business dispute.

Finally, any anti-SLAPP decision that involves an abuse of process claim is worth reading particularly given concerns over the years that the statute had obliterated the claims.

Litigation Privilege

Speaking of concerns of not obliterating an abuse of process claim, not quite as clear as its anti-SLAPP discussion is the Court's litigation privilege discussion. Alongside its anti-SLAPP motion, Gillette filed a Rule 12(b)(6) motion to dismiss, predicated in part on the litigation privilege. The Court confirmed that denial of a motion to dismiss based on the litigation privilege is immediately appealable as anti-SLAPP decisions are, but that review is de novo. The Court, however, accepted as "sound" the trial court's distinction between "speech" and "conduct" in the litigation privilege context and concluded that the privilege did not apply because it was not the statements themselves, but the conduct of sending letter and filing a lawsuit making the statements.

Applying the speech/conduct distinction, the Court affirmed denial of the counterclaim based on the litigation privilege. The Court explained that ShaveLogic did not contend that statements in a pre-litigation letter or in Gillette's complaint were defamatory or actionable themselves, but rather those "statements are evidence that might support ShaveLogic's claims of other misconduct", namely Gillette's conduct of sending pre-litigation letters threatening a baseless lawsuit and filing the baseless lawsuit.

The distinction between speech and conduct, while an understandable effort not to broaden the privilege and to keep alive the possibility of asserting claims based on litigation conduct, the distinction seems artificial: Of course sending letters and filing lawsuits is conduct, but liability for abuse of process attaches due to the content of the letters and the lawsuit. Under the speech/conduct distinction, the litigation privilege would bar a defamation claim based on the content of the letters and lawsuit, but would not bar other claims based on the exact same letters and lawsuit.

Another avenue the Court could have, but did not take, to reject the litigation privilege was within its acknowledgement that the privilege only attaches to statements preliminary to litigation "if they relate to a proceeding that is contemplated in good faith and that is under serious consideration" or are made in a good faith proceeding. The Court could have, given its other rulings, applied this exception here, but declined to "explore [the] precise contours" of these principles.

The SJC yesterday ruled in blog post

The case stemmed from a 2013 blog post authored by two environmental activists that appeared on the Huffington Post blog. The post criticized BP and one of its experts, ChemRisk, for scientific data and opinions ChemRisk presented in the multi-district federal lawsuit against BP stemming from the 2010 oil spill disaster, particularly ChemRisk's opinions that the spill was far smaller than alleged (1.7 million barrels smaller) and that exposure to cleanup workers was below permissible limits set by OSHA.

ChemRisk sued the authors of the blog post for defamation in state court in Massachusetts, and the activists filed anti-SLAPP motions to dismiss (as well as typical failure to plead motions to dismiss). A Superior Court judge denied the anti-SLAPP motions, citing the SJC's earlier decisions in Kobrin v. Gastfriend, Fustolo v. Hollander, and Fisher v. Lint, and concluding that the blog post "did not concern or seek to advance the defendants' own interests, but rather those of the cleanup workers."

On appeal, the SJC took the case up on direct appellate review and reversed. The Court ruled that the blog post constituted petitioning activity, explaining that it fell into at least one of the "enumerated definitional categories" in the statute, and that the post's authors were petitioning for themselves.

First, the Court explained that the post "formed part of the defendants' ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and it close[d] with an implicit call for its readers to take action." So, the Court concluded, without more discussion of any of its past decisions or the context in which it has found and rejected claims of petitioning activity, "[t]he article falls squarely within the second clause of the statute," namely that it is a statement reasonably likely to enlist "public participation." In addition, because it was written "against the backdrop" of the MDL, referred to that litigation and the actions of one of BP's experts in the case, the Court concluded it also "may" be a "statement made in connection with an issue under . . . review by a . . . judicial body." (But what of Wynne v. Creigle, the "mirror image" rule, and the limitations the appellate courts have placed on protections for statements to the press?).

The SJC also disagreed with the Superior Court judge and found that the post's authors were sufficiently speaking for themselves and advancing their own interests to qualify as petitioning activity. The Court distinguished Kobrin (as involving a contracted government expert witness), Fisher (as involving a government employee) and Fustolo (as involving a journalist tasked with objectively reporting on the news), and concluded that unlike the defendants in those cases, the activists and authors here had their own independent interest in their cause (much like the bird expert in Baker v. Parsons). The Court explained that "[n]othing [in the history of the statute or constitutional petitioning] suggests that the right of petition protected by the anti-SLAPP statute is limited to seeking redress of purely personal grievances."

Concluding that the defendants met their burden to show the claims against them were solely based on their petitioning activity, the burden shifted to ChemRisk to show, by a preponderance of the evidence, that their petitioning activity was devoid of reasonable basis in fact or law - a burden, the Court ruled, ChemRisk did not seriously attempt to meet.

The Boston Globe reported on the decision today, which, as reflected in the Globe article, has been heralded by some as important to protect petitioning rights of those demanding or opposing government action at this particular time. But while the end result - dismissal and protection of the activists' speech - are certainly laudable, one cannot help but wonder if the Court here heeded its own constitutional warning in Duracraft Corp. v. Holmes Prods. Corp., or its own acknowledgment that our anti-SLAPP statute (unlike some in other states) extends to petitioning, but not to all first amendment conduct.

And while it is difficult to argue with the fact that the blog post in ChemRisk should be protected by the First Amendment, using the petitioning clause and the anti-SLAPP statute to immunize it opens the already wide anti-SLAPP door even more. The opinion seems result oriented and without recognition of how broadly it will be read, used and applied. The litigation within litigation the anti-SLAPP statute creates is already rampant and the ChemRisk decision only promises to increase the number of motions filed - meritorious or not.

The risk in the anti-SLAPP context is all on the claimant/non-moving party because attorneys fees are only available to a prevailing movant (and not to a party who successfully opposes such a motion), and the precedents are far from consistent and far from clear. Of course, ChemRisk ultimately lost because it did not meet its own burden to show the challenged statements in the blog post were devoid of reasonable basis in law or fact, and the Court explained that ChemRisk did little to meet its burden in this case. Perhaps the problem is that while this analysis works in ChemRisk, in general, it is little consolation for a non-moving party that it might escape dismissal by making this showing given the preponderance standard, the early stage at which the showing must be made, the lack of a jury to make credibility and factual findings, and the way the SJC has interpreted the standard to date.**

So we have another anti-SLAPP decision from the SJC, but like many of the anti-SLAPP decisions before it, the actual line drawn by ChemRisk and how it will be applied in the future remains unclear and to be seen.

*For example, the Court has previously ruled that a website that operated like an electronic "town green" to which third parties could contribute content qualified as petitioning activity in Macdonald v. Paton, but a website created by a lawyer who criticized a collection company and sought clients to join the lawyer as a party and to hire him to represent them did not qualify as petitioning activity in Cadle v. Schlichtmann.

here. In federal court, Judge Young has ruled that the preponderance standard and the second prong of the analysis as interpreted by our state courts, would violate the Seventh Amendment right to trial by jury for claims typically afforded a jury in federal court. The same problems exist but have not been acknowledged in state court under article 15 of the Massachusetts Constitution. <<Read More>>

***And for those wondering, this blog post is, of course, intended to be petitioning activity as it seeks to affect and effect government action - namely for the courts or the legislature to clarify the statute's application, to do so in a manner that actually ensures the statute does not impinge too much on competing constitutional (petitioning, jury trial, due process, etc.) rights and to create a disincentive for litigants to use the statute as a litigation tactic when it does not really apply, all while, of course, protecting the sacred petitioning right the statute seeks to protect. Godspeed.

2016 was another big year in anti-SLAPP litigation – with the Appeals Court issuing a slew of Rule 1:28 decisions, the Supreme Judicial Court granting Direct or Further Appellate Review to consider issues ranging from the proper procedure for appealing the allowance of an anti-SLAPP motion to whether the Duracraft Corp. v. Holmes Prods. Corp. “no substantial basis” test allows parsing and dismissal of portions of a single claim, and at least one federal district court judge altering the Supreme Judicial Court’s test significantly as applied to anti-SLAPP motions filed in federal court to avoid Seventh Amendment jury right problems.

And 2017 already promises to continue the life-of-its-own trend of anti-SLAPP litigation.

Be warned, this is a long post.

Spoiler Alert: The anti-SLAPP statute remains constitutional as is in state court (so far), but not necessarily in federal court; abuse of process claims are still confusing; and, above all else, there is no such thing as a sure thing in anti-SLAPP law.

CHAPTER ONE: STATE COURT

This is what happened last year. More or less.

At the SJC, the Court issued a decision in Van Liew v. Stansfield, confirming that an appeal from the allowance of an anti-SLAPP motion (just like an interlocutory appeal from the denial of an anti-SLAPP motion) is always taken to the Appeals Court, and that defendant’s application for harassment order, although successful initially on an ex parte basis, was still devoid of reasonable basis because it complained only of protected speech, mostly political speech, and was vacated after an evidentiary hearing.

The Court also granted FAR and heard oral argument in Blanchard v. Steward Carney Hospital, Inc., in which the trial court denied an anti-SLAPP motion to dismiss defamation claims based on statements the hospital and its president made to the press and in internal emails during the course of a regulatory review, and the Appeals Court reversed in part, parsing the defamation claim and dismissing so much of it as was based on press statements. The Appeals Court in Blanchard reasoned the press statements were made in the context of taking action to satisfy regulators and retain the hospital’s license and thus petitioning while the emails were not, and the defamation claim could have been brought as separate defamation counts based on the separate statements.

And the Court granted DAR in 477 Harrison Avenue, LLC v. Jace Boston, LLC (SJC-12150), which raises the questions, among others, of whether the Appeals Court’s decision in Keystone Freight Corp v. Bartlett Consolidated, Inc., (which held that abuse of process claims can survive anti-SLAPP challenges where evidence of ulterior motive is supported by conduct independent of the petitioning activity) can be squared with the SJC’s repeated rulings that motive is irrelevant in the first phase of the anti-SLAPP analysis, and that only a substantial basis other than petitioning activity can save the claim, where the only conduct that could possibly constitute an abuse of process is, well, use of process (i.e., petitioning). The case also may (or may not) also address the issue of whether the preponderance standard applied to the burden on the non-moving party violates the Article XV jury trial right. The SJC heard argument in 477 Harrison Avenue this morning. If you missed it, you can watch the argument once it is added to the archives.

The Appeals Court also issued a series of Rule 1:28 decisions that confirmed (roughly):

He said/she said affidavits will result in anti-SLAPP dismissal. “Even when the only evidence in support of a factual claim underpinning petitioning activity is the affidavit of the defendant [the party seeking dismissal], . . . notwithstanding his own affidavit to the contrary, a plaintiff will be unable to meet his burden of demonstrating that the petitioning activity had no reasonable basis in fact. . .” Agin v. Plamondon, 15-P-992 (Rule 1:28 Decision) (Aug. 5, 2016). The Agin panel cited the SJC’s 2009 decision in Benoit v. Frederickson as confirming this. And that, of course, is one of the fundamental problems with Benoit.

Majority rules rule. Agin again. Plaintiff appealing allowance of an anti-SLAPP motion to dismiss argued the statute was void for vagueness, and violated plaintiff’s own right to petition, to due process and to a jury trial under article XV of the Massachusetts Declaration of Rights. The panel disposed of the vagueness challenge by merely stating it was “clear enough” as interpreted in Benoit. Plaintiff’s other constitutional arguments hearkened back to Justice Cordy’s concurring opinion in Benoit, raising constitutional concerns about the need for credibility determinations to deal with competing affidavits on the second phase of the anti-SLAPP analysis. To that, the panel said, this case does not raise that issue, but if it did, that was only a concurring opinion and so the panel would still affirm dismissal and leave it to the SJC to decide. Which it won’t, at least not in this case. No Dar/No FAR.

If you do something bad and then sue someone, and they sue you back, the anti-SLAPP statute might apply. Or it might not.

In Allied Waste Servs. of Massachusetts, LLC v. Imperial Distributors, Inc., 15-P-966 (Rule 1:28 Decision) (Sept. 16, 2016), the Court affirmed the denial of an anti-SLAPP motion to dismiss an abuse of process counterclaim filed by defendant KLT Industries, Inc. after discovery. Allied and KLT were competitors in the waste removal and recycling business. Allied had a contract with Imperial to provide such services, and the contract contained successive, three-year, auto-renewed terms and a liquidated damages clause. After three years, Imperial called it quits with Allied to get the same service for less from KLT, but Allied refused to go, refused to remove its equipment, forbid Imperial from doing so and reminded Imperial of the liquidated damages provision. Imperial then had Allied’s equipment removed and hired KLT. Allied sued Imperial and KLT. KLT did its due diligence and then counterclaimed against Allied for abuse of process and 93A violations. The Court affirmed denial of Allied’s anti-SLAPP motion, finding that KLT’s allegations were aimed at Allied’s “broader effort to interfere with competition that arise substantially from alleged conduct [refusing to remove equipment, and attempting to force Imperial to reconsider switching to KLT particularly in light of the liquidated damages provision] that preceded and was separate from the filing of the lawsuit.

But then in Knapp v. Powicki, 15-P-798 (Rule 1:28 Decision) (Sept. 29, 2016), the panel affirmed allowance of an anti-SLAPP motion to dismiss a malicious prosecution claim, where the plaintiffs had pursued a baseless claim of a right of first refusal against the defendant allegedly to force her to transfer her property to them, had trespassed on her property and cut down a tree, threatened to sue her, set up a camera to take pictures of her in her home and created a dirt pile feet from her house. The Court found that “even if these facts could be considered evidence of malice,” the trial court judge had found that the plaintiff had a good faith belief in the right of first refusal, the claim had survived summary judgment, and a jury (although ruling against them on the question of whether they had an easement) found that they had a good reason to believe the cut down tree was on their own property (nothing about the cameras or dirt pile, though). FAR was since denied.

Given the uncertainty of how an abuse of process claim may play out, let’s hope 477 Harrison Avenue brings some clarity to the situation.

Anything worth having is worth fighting for (or, don’t give up 2/3 of your attorneys’ fees without a fight). The panel in Franks v. Mitchell, 15-P-858 (Rule 1:28 Decision) (Jul. 5, 2016) vacated the trial court’s anti-SLAPP fees order and remanded the matter to the trial court to try again. The trial court had allowed an anti-SLAPP motion, highly complimented the moving party’s lawyers’ work, and then cut their time by more than two-thirds, and reduced their hourly rates, all without explanation or findings, when awarding their fees. The panel said no go and instructed the trial court on remand to consider the “deterrent and reimbursement” purposes of the anti-SLAPP statute, the important underlying interests it seeks to protect, and the public interest in attracting capable counsel which is undermined by “parsimonious fee awards.” The panel left room for the trial court to consider typical fee-shifting factors, but warned that the judge should support any reduction of hourly rates with sufficient findings.

Bad-mouthing your ex (justified or not) to your friends at a party is not petitioning activity. In Girard v. MIT, 14-P-1800 (Rule 1:28 Decision) (Aug. 11, 2016) Mr. Girard sued Dr. Girard (his ex-wife) and MIT (where she worked) for defamation, among other things, based on statements Dr. Girard made first privately to her friends at a private party and then to police. The trial court allowed Dr. Girard’s anti-SLAPP motion, finding that while her statements to friends were not petitioning activity, those statements were not a substantial basis for Mr. Girard’s claims because they did not cause the harm he sued over (apparently, her statement to the authorities did). On appeal, the panel said, hold up, and reversed. The panel explained, “The motion judge’s consideration of the element of causation at this early stage was premature.” Since Dr. Girard made her statements privately to her friends with no expectation that they would contact law enforcement on her behalf, even if they “mirrored” statements later made to police, they were not made “in connection with” a pending government review or proceeding. It’s not over yet. FAR application pending.

CHAPTER TWO: THE FEDS

It was also a bit of a mixed bag this past year in federal court anti-SLAPP practice in the USDC-Mass. Without trying to capture each nuance, reading or interpretation, here are some highlights.

While all of the district court judges who ruled on it this past year and, in fact, all who have ruled on the issue since the First Circuit’s decision in 2010 in Godin v. Schencks, 629 F.3d 79, 85 (1st Cir. 2010) (holding Maine anti-SLAPP statute applies in federal court), agree that the Massachusetts statute applies in federal court, one district court judge (Gorton, J.), ruled that the statute does not apply to federal law claims such as civil rights claims under 42 U.S.C. §1983, Jobs First Independent Expenditure Political Action Committee v. Coakley, 14-14338-NMG (Nov. 11, 2016), and two other judges issued starkly contradictory rulings about the constitutionality of applying the statute, as the SJC has interpreted it, in federal court.

Judge Casper first ruled in Steinmetz v. Coyle & Caron, Inc., 15-CV-13594-DJC (Jul. 29, 2016) that anti-SLAPP statute is just fine, it is not unconstitutional and it applies in federal court. Steinmetz was a landowner in Cohasset who submitted an application to the Cohasset Conservation Commission to build a single family home on his property. A local preservation group opposed. Coyle & Caron, Inc., a landscape firm, prepared renderings of plaintiff’s proposed construction and submitted and presented the renderings to the Commission, at least one of which also made its way to the preservation group’s FaceBook page. After the Commission rejected plaintiff’s application, he sued the landscape firm, claiming it had worked with the preservation group to prepare and present false, fraudulent and defamatory renderings of his proposed construction. The firm filed an anti-SLAPP motion to dismiss, which the plaintiff opposed by arguing the anti-SLAPP statute does not apply in federal court (rejected: seeGodin), does not apply to “disinterested expert witnesses” (rejected: see hodgepodge of case law from SJC and Appeals Court) and is unconstitutional because it violates plaintiff’s jury right under the Seventh Amendment and state law. Judge Casper rejected the constitutionality challenge, citing the fact that the SJC has ruled on the statute several times and thus “implicitly” found it constitutional.

On the constitutionality question, Judge Young begged to differ. In Hi-Tech Pharmaceuticals, Inc. v. Cohen, 16-10660-WGY (Sept. 22, 2016), Judge Young raised the question and requested briefing from the parties on whether enforcement of the anti-SLAPP statute, as interpreted by the Supreme Judicial Court, might violate the Seventh Amendment jury trial right in civil cases if applied in federal court, concluded it would, and then reduced the burden of proof to be applied to the non-moving party on the second prong of the anti-SLAPP test in federal court to avoid an unconstitutional result. Judge Young set out the two-step anti-SLAPP analysis: First, a moving party must “make a threshold showing through pleadings and affidavits that the claims against it are based on . . . petitioning activities alone. . .” If the moving party makes this showing, the burden shifts to the non-moving party to “demonstrate that the defendant’s petitioning conduct lacked any reasonable factual support of any arguable basis in law.” (quotations omitted). With respect to this second phase of the analysis, Judge Young explained:

The precise burden on a plaintiff at this step is a somewhat contentious matter and is of great concern to this Court. In Baker v. Parsons, 434 Mass. 543 (2001), the Supreme Judicial Court held that the applicable standard at this stage is a fair preponderance of the evidence -- that is, "to defeat a special motion to dismiss made pursuant to [the Massachusetts anti-SLAPP statute], the nonmoving party . . . must show by a preponderance of the evidence that the moving party's petitioning activities were devoid of any reasonable factual support or any arguable basis in law." Id. at 544.

Id. at pp. 6-7 (footnotes omitted).

The problem, as Judge Young framed it, is that to determine if the non-moving party has met a preponderance standard that the moving party’s petitioning conduct lacked any reasonable basis in fact or law would require the Court to decide which of the affidavits submitted by the parties in connection with the motion it believed. Id. at 10-11. This would “require [the] Court to make factual findings and credibility determinations that the Constitution reserves to a properly constituted jury of the people” and would “necessarily impinge on the parties’ Seventh Amendment right to a jury trial.” Id.

To avoid this type of unconstitutional application of the statute, Judge Young thus ruled that to overcome a special motion to dismiss pursuant to the Massachusetts anti-SLAPP statute, the non-moving party “need make only a prima facie showing that the defendant's petitioning conduct lacked a reasonable basis in law or fact.” Id. at p. 12 (“Imposing a low bar on plaintiffs at the second step of the anti-SLAPP analysis also comports with the purpose of such legislation, which is only to prevent meritless suits from imposing significant litigation costs and chilling protected speech.” (quotations omitted)).

Judge Young recognized that limitations on jury trials created by anti-SLAPP statutes are the product of state jurisprudence, and even dropped a footnote expressing the poignancy of the issue here given the fact that Massachusetts has long prided itself on providing even greater protections for citizens than the federal bill of rights, but noting that the right to trial by jury right nevertheless is seemingly somewhat less robust in state court (referring to the anti-SLAPP statute and 93A actions).

While this may be true in 93A cases and for certain other statute-created causes of action, article XV of the Massachusetts Declaration of Rights (this state’s counterpart to the Seventh Amendment which the Massachusetts Courts interpret in line with Seventh Amendment jurisprudence) grants and protects a broad jury right in civil cases excepting cases in equity and other types of claims traditionally reserved to judges.

The interesting question then is what will happen when the SJC entertains a ripe constitutional challenge under article XV. The Appellee in 477 Harrison (relying heavily on Judge Young’s opinion in Hi Tech) but it is unclear whether the issue is properly before the Court (Appellants ), and whether the SJC will reach it at all.

Two other points of interest from the D. Mass decisions.

In Jobs First, Judge Gorton also waded into the murky abuse of process waters, refusing to apply the anti-SLAPP statute to dismiss the abuse of process claim brought by plaintiffs a political action committee because it alleged “other conduct” to support the claim, namely the defendant state representative’s statements to the press and press release that discussed his application for criminal complaint under G.L. c. 56 §42 (later deemed unconstitutional on its face by the SJC) against the PAC after it released brochures and statements criticizing his legislative record in connection with his (later successful) re-election. Judge Gorton stated, “Just as the SJC removed 'aggressive lawyering' from the protection of § 59H, so too does this Court conclude that Mannal's campaign activities are not protected by [the anti-SLAPP statute].” Id. at p. 10.

Commercial Motives. And in Shire City Herbals, Inc. v. Mary Blue d/b/a Farmacy Herbs et al, 15:30069-MGM (May 12, 2016), Judge Mastroianni, rejected plaintiff’s argument based on the SJC’s decision in Cadle Co. v. Schlichtmann, 448 Mass. 242 (2007) , that defendants’ activities were commercially motivated and, therefore, outside of the ambit of the anti-SLAPP statute. In Shire City Herbals, plaintiff had obtained federal registration for the trademark FIRE CIDER®, which it used to describe and market a tonic made from apple cider vinegar and other ingredients. Plaintiff sued defendants, individuals who sold similar tonics referred to, generically, as “fire cider” after they took steps to cancel the trademark registration and to boycott plaintiff, including through their websites and Facebook pages on which they also promoted and sold their competing products. Mindful of the anti-SLAPP’s broad scope and protection, and viewing the defendants’ activities in their “over-all context”, the Court concluded that defendants’ “goal from the start was to cancel the Fire Cider Mark, and their activities took place in the context of achieving that goal. . . [their] actions and statements in this case are, at the very most, petitioning activities with some commercial effects, and are not commercial activities in and of themselves.”

EPILOGUE: Expected 2017 Anti-SLAPP Decisions and the 130 Day Rule

More anti-SLAPP decisions are already on the horizon for 2017. The SJC is expected shortly to issue the Blanchard decision. The 130 day rule calls for a decision within 130 days of argument, or in Blanchard, by around St. Patrick’s Day, (give or take). Of course, the Court may and not infrequently does “waive” the rule in certain cases, so the deadline is only as firm as the Court’s conviction to stick to it. Nevertheless, the clock, such as it is, has also now started ticking on 477 Harrison Avenue, in which the Court heard argument this morning.

Never a dull moment. Relatively speaking.

*This is not legal advice in any way shape or form. It may or may not even be correct or complete. It is for informational purposes only and should not be relied on for any purpose.

On April 5, 2016, the Supreme Judicial Court heard argument in The Shrine of Our Lady of LaSalette v. Bd. of Assessors of Attleboro (SJC-12021). The case addresses the application and interpretation of the property tax exemption applied to religious houses of worship in G.L. c. 59, §5, Clause Eleventh, and raises First Amendment freedom of religion issues and potentially sweeping consequences for churches and other faith-based organizations. Yesterday afternoon, the Court issued a notice that the quorum of Justices that heard argument in the case did not reach a majority decision, and that the case will be re-argued before the Court as now composed.

The composition of the Court has changed significantly since the April 5 argument. . With Justice Botsford sitting this case out, half of the quorum to hear this case is new. What this means for the outcome of the case is difficult to predict, but the stakes for houses of worship are high.

The Shrine of Our Lady of LaSalette has existed in Attleboro, Massachusetts since 1953. After years of recognizing the Shrine as tax-exempt in large part, recently, the Town Tax Assessors have changed their tax strategy with respect to the Shrine and have decided to tax the Shrine significantly based on the Assessors' own determination of which of the Shrine's activities qualify as religious worship and which do not.

The Shrine paid the tax under protest, sought an abatement, which was denied, and appealed the Assessors' denial to the Appellate Tax Board. The Appellate Tax Board confirmed the Assessors' decision that portions of the Shrine's property were not tax exempt, and the Shrine appealed.

The SJC took the case on direct Appellate review in December 2015, and sought amicus briefs on the issue of whether the statute's exemption for "houses of religious worship" applies to portions of a taxpayer's property used for "fundraising, charitable, and 'ecospiritual' activities that the taxpayer maintains are part and parcel of its overall religious mission. . ." After hearing argument on April 5, 2016,, on August 23, 2016 the Court issued a notice waiving the 130 day rule, and then entered notice on thedocketyesterday afternoon that no decision had been reached.

The docket does not yet reflect a new argument date, but the Court has stated it does not seek additional briefing.

So now we wait. Again.

In case you missed it, last Monday (9/6) was what Chief Justice Gants called "Opening Day" at the Supreme Judicial Court as the justices of the state's highest court took the bench for the first time in the September session - with three new faces among them - Justices Graziano, Lowy, and Budd. With two more justices - Justice Botsford and Justice Hines - scheduled to retire in 2017, the Court is undergoing a significant transition over a relatively short period. To be seen is how the Court's new makeup will affect the policy and rulings that come out of the Court.

The first case up before the newly configured Court was George v. George, a family law case that raises the question of "whether a judge, on a complaint for modification of an alimony judgment that predated the Alimony Reform Act, may properly deviate from the durational limits of G.L. c. 208, § 49, on the basis that the alimony provisions of the parties' separation agreement, which were merged into the judgment, were inextricably connected with the property division provisions of the agreement, which survived the judgment." The SJC took the case sua sponte from the Appeals Court and solicited amicus briefs (although the docket does not show any having been received).

Opening week at the Court also brought argument in 18 other cases, including a dozen criminal cases with issues ranging from sufficiency of the evidence, standard of proof (e.g., Commonwealth v. Maguire: what is the standard of proof necessary to convict for the crime of "open and gross lewdness"?) and rulings on motions to suppress, to statutory interpretation (e.g., Commonwealth v. LeBlanc: can a defendant be convicted of falsely reporting a crime to a police officer when the report was to employees of the sheriff's office? andCommonwealth v. Gernich: can a defendant be convicted of leaving the scene of an accident where the accident happened on a private way not on a public road?) and requirements for instructions to the grand jury (Commonwealth v. Grassis: must Commonwealth instruct grand jury about mitigating circumstances or defenses when seeking murder indictment where there is evidence of mitigating circumstances or defenses "sufficiently strong that the integrity of the grand jury would have been impaired if it were withheld").

The Court also heardIn re Chism, which raises the question of whether exhibits in a motion to suppress hearing (here, a videotaped confession) are judicial records to which the public (in this case, intervenor, the Boston Globe), has a right of access, either under the First Amendment or as a common right of access subject to the "good cause" impoundment standard. The appeal is from an order of a single justiceof the SJC (Duffly, J.), which reversed the Superior Court's order allowing access to the videotaped confession.

Oral argumentswere active, with the new Justices jumping right in with questions.

While the SJC did not sit it session in July and August, it continued to issue decisions throughout the summer. Still, a number of noteworthy and significant cases argued back in the early spring are still pending after the Court issued orders waiving the 130 day rule, including cases we have written about before: Partanen v. Gallagher (parental rights of non-biological, unmarried same sex parent), Shrine of Our Lady of LaSalette v. Board of Assessors of Attleboro (application and interpretation of the property tax exemption applied to religious houses of worship) and Commonwealth v. Laltaprasad(can a judge depart from mandatory minimum sentences for conviction for possession of drugs with intent to distribute).

Stay tuned. Every week is a big week at the SJC.

Decisions

The Appeals Court is Paperless. Mostly.

Recognizing the efficiency and other interests served by e-filing (not to mention the savings in space and trees), in February 2015, the Supreme Judicial Court issued an order authorizing the Appeals Court (and certain other courts) to conduct e-filing pilot projects.

Even before that, the Appeals Court required e-filing of some documents and motions, but briefs, appendices and some other documents still had to be filed the old fashioned way.

But in March 2016, the Appeals Court entered the digital era with full scale e-filing capability and requirements. Following the SJC's order, the Appeals Court issued an Order Concerning Electronic Filing PILOT project to commence registration for and e-filing in the Appeals Court, and along with it, Interim Electronic Filing Rules.

There is a lot to know. Here are five tips to get you started.

1. To e-file, you have to register through Massachusetts Odyssey File and Serve, set up and run by Tyler Technology, third party vendor. Each firm must register and each attorney/filer must be added to the account. Directions are available here.

2. You can e-file almost everything you had to paper file before, including briefs, appendices, docketing statements, motions, Rule 16(l) letters, and much more. It cost $7 per transaction ("envelope") and e-filing counts as service on opposing counsel registered for e-filing (by registering, you automatically consent to receiving court notices only by email and service of all e-filed documents only electronically through Odyssey). You do not need to file paper versions of these documents unless the Court tells you to.

3. E-filing is only for civil cases. You cannot e-file in criminal cases. You also cannot e-file impounded material or in impounded cases.

4. The Appeals Court website has many resources to help you with e-filing. A good place to start is the E-filing FAQs. There, under Firm Set Up And Administration, you will find PDFs with screen shots showing each step of the Odyssey registration process. You will also find all of the following (and more):

(and directions on how to resubmit a rejected filing)

(just to make

numbering your appendices easier)

5. When in doubt, get technical help. But do not call the clerk's office with technical questions. Call Tyler Support (1-800-297-5377). You can also contact them by email or live chat from within the Odyssey system by clicking on the "Contact Us" button in the "Help" section. From personal experience, they are responsive and on point.

E-filing is here. No more need - in public civil cases anyway - for color covers, copies upon copies, or worrying about velo binding versus rings. It's a good thing.

On June 30, 2016, the SJC granted Further Appellate Review on the parties' cross-petitions in Blanchard v. Steward Carney Hospital, Inc.

The case raises questions about the scope of anti-SLAPP protection for statements made to the press and whether the anti-SLAPP statute allows (or constitutionally could allow) parsing and dismissal of only a portion of a single claim when the claim is based in part on petitioning activity and in part on other conduct.

Blanchard is a defamation case filed by nurses against their former employer, the defendant hospital, and its president that arose from statements the president made in an internal email and to the press regarding an investigation about complaints about abuse and neglect of patients at the hospital. The internal email stated that terminated employees (which included the plaintiff nurses) had "not been acting in the best interest of the patients, the hospital, or the community [they] serve" and that "[a]s a result, [he has] terminated the employment of each of the individuals." The Boston Globe quoted the hospital president who described an internal investigation report that recommended "to start over on the unit [in which the plaintiff nurses had worked" and "described 'serious concerns about patient safety and quality of care'" and stated, "We will have top notch employees replace those who left." The plaintiff nurses were terminated, but were not those whose conduct was at issue in the investigation.

After the trial court denied defendants' special motion to dismiss under the anti-SLAPP statute, the Appeals Court affirmed in part and reversed in part. There was much to dislike about the decision.

The Appeals Court concluded that the hospital president's statements to the Boston Globe constituted protected petitioning activity because they were made in the context of scrutiny from the regulatory licensing agencies and public pressure on those agencies to close the unit and withdraw its license. By contrast, the Appeals Court concluded that the hospital president's internal email to hospital staff did not because while the email may have been part of the overall strategy to address unit conditions with hopes of influencing regulators, there was nothing to indicate the email itself had been provided to regulators or that regulators were told about it.

The Appeals Court reversed the trial court's denial of the special motion to dismiss insofar as it had allowed the entire defamation claim to survive, and concluded that while the claim survived, it could not be based on the hospital president's statements to the Globe, only on his internal email.

The decision extended anti-SLAPP protection for press statements far beyond the "mirror image" rule in Wynne v. Creigle and beyond what has been recognized before by allowing protection for statements made to the press about an internal investigative report by outside counsel.

The panel also for the first time applied the anti-SLAPP statute to dismiss only a portion of a single claim notwithstanding the SJC's holding in Duracraft v. Holmes Prods. Corp., that a party seeking dismissal based on the anti-SLAPP statute must show that a claim is "based solely" on petitioning activity even to move on to the second prong of the anti-SLAPP analysis. Until Blanchard, an anti-SLAPP motion produced an "all or nothing" result at least as to each single claim, to avoid the constitutional "conundrum" identified in Duracraft that the anti-SLAPP statute creates since early dismissal of a lawsuit itself infringes upon petitioning activity.

Blanchard is one to watch at the SJC given the proliferation of anti-SLAPP motions and the litigation within litigation the statute has created in the last two decades. T

On May 3, 2016, the Supreme Judicial Court will hear argument in Nancy Chadwick v. Duxbury Public Schools et al, SJC-12054, and will be poised to decide whether the Commonwealth recognizes a union-member testimonial privilege that protects communications between a union member and his or her union representative made in the course of a grievance procedure.

For unions, union members, and labor and employment lawyers on both sides, the issue raised is significant. The SJC's ruling could effect how union union members communicate with their union representatives in the future and what communications are subject to discovery in discrimination and other lawsuits employees/union members file against their employer.

The case in a nutshell

Chadwick, a former schoolteacher, sued the Duxbury Public Schools and other related parties in Plymouth Superior Court for employment discrimination. Chadwick was a teacher for Duxbury Public Schools from 2006-2015. For the last six of those years, she was also President of the Duxbury Teachers' Association and an affiliate of the Massachusetts Teachers' Association.

Chadwick suffered from PTSD and, in 2012, requested an accommodation for her PTSD, which included asking that contact with her immediate supervisor (whom Chadwick alleged was hostile and triggered PTSD episodes) be limited. Chadwick alleged that, in response, a different person was assigned to evaluate her, but that her immediate supervisor remained very much in contact.

During discovery in the discrimination case, a dispute arose regarding the discoverability of Chadwick's email communications with her union representatives. The school moved to compel and Chadwick cross moved for a protective order. Judge Yessayan refused to recognize the union communications privilege, denied the motion for protective order, allowed the motion to compel and ordered Chadwick to produce her emails with her union representatives. On Chadwick's petition to a Single Justice, Justice Grainger affirmed Judge Yessayan's order, but stayed the production order for seven days to allow Plaintiff to seek further review, which she did.

The SJC pulled the case up

Once Chadwick docketed her appeal in the Appeals Court, the SJC sua sponte took the matter up, and solicited amicus briefs on the issue of "Whether Massachusetts will recognize a union-member testimonial privilege, such that the plaintiff in this case, in her underlying employment discrimination action against her employer, would not be required to produce in discovery communications between herself and her union representatives related to her case." Interests on both sides answered the call and filed briefs.

On the plaintiff's side, Chadwick and amici argue that a privilege should be recognized and is needed to ensure full, frank and open communication between union members and union representatives in grievance proceedings and that discovery of those communications would amount to interference with Chadwick's ability to seek assistance from the union.

On the defendants' side, Duxbury School Committee and the other defendants and amici argue that Chadwick has not produced evidence showing the communicationsn were confidential and, moreover, any privilege is unwarranted, not supported by the case law and should be left to the Legislature to determine.

Read the briefs - Chadwick's Brief, Duxbury Public School's Brief, Amici Mass. Teachers Assoc. et al. Brief(in favor of recognizing the privilege) and Mass. Assoc. of School Committees et al. (against recognizing the privilege)

Watch the argumentlive or after it is completed in the archives

Stay tuned.

It was standing room only in Courtroom One at the John Adams courthouse in Boston last Tuesday morning, as the justices of our highest Court stepped from behind the curtain to hear argument in a full slate of cases, raising fascinating issues including the proper application of tax exemptions for religious organizations, the scope of parental rights of unmarried same sex couples, and whether judges have discretion to depart from mandatory minimum drug sentences.

The justices have some hard questions to answer. Now we wait.

Karen Partenan v. Julie Gallagher (SJC-12018)

Parental rights of non-biological parent in unmarried same-sex couple where the couple agreed to have children together and to use artificial reproductive technology and donor sperm to do so.

Karen Partanen filed a Verified Complaint in Equity pursuant to G.L. c. 215, § 6, G.L. c. 209C, and G.L. c. 46, § 4B, in which she asked the family and probate court to declare her to be the full legal parent of the two minor children born through assisted reproductive technology to her same-sex partner, Julie Gallagher, during the couple's 13 year relationship and pursuant to their plans to start a family, and to grant her shared custody of the children.

The trial court dismissed the complaint, concluding that Partanen did "not meet the statutory requirements for presumed/legal parentage under G.L. c. 46, § 4B or G.L. c. 209C," because she was neither the children's biological parent nor married to Gallagher. Partanen appealed and sought direct appellate review, which the SJC granted on December 17, 2015.

In a separate case, Partenan sued in equity for a declaration that she was a "de facto parent" pursuant to G.L. c. 215, § 6 and for shared custody of the children. Gallagher stipulated that Partenan is a de facto parent under the statute and, in a case of first impression, the probate and family court made detailed factual findings (including that Partanen and Gallagher were a couple for approximately 13 years, agreed to have children together, participated in assisted reproductive technology together toward that end, that Partanen was present for the children's births, received them into the joint home with Gallagher, supported and parented the children, who knew her "as mommy"), and ultimately awarded Partanen joint legal and physical custody of the children. Gallagher has appealed that decision separately.

The case currently before the SJC asks the Court to recognize Partanen's full parental status, and argues, among other things, that granting Partanen the "full parental rights and responsibilities", while maintaining "the nomenclature of 'de facto parent'" would "create a new status that is equal to ['parent'], yet separate from it." and a "stigma of exclusion." Partanen Briefp. 50 (internal quotation omitted). The case raises serious constitutional questions as well practical issues for parents and children, biological, married and non-married.

Mary Bonato, of GLAD (the lawyer who argued successfully in the Supreme Judicial Court in 2003 in favor of same sex marriage in Massachusetts, and in the United States Supreme Court in 2015 in favor of same sex marriage across the nation), represents (along with co-counsel) and argued on behalf of Partanen. Attorney Jennifer Lamanna, new to the case, argued for Gallagher.

The argument remained focused mostly where it should have been: on concern for the children and their rights, with a few exceptions, and a couple of somewhat surreal forays into how the method by which a child is conceived might affect unmarried' parents' rights.

The Shrine of Our Lady of LaSalette v. Bd. of Assessors of Attleboro (SJC-12021)

The application and interpretation of the property tax exemption applied to religious houses of worship that could significantly impact how local assessors treat religious organizations for property tax purposes generally.

The Shrine of Our Lady of LaSalette has existed in Attleboro, Massachusetts since 1953. After years of recognizing the Shrine as tax-exempt in large part, recently, the Town Tax Assessors have changed their tax strategy with respect to the Shrine and have decided to tax the Shrine significantly based on the Assessors' own determination of which of the Shrine's activities qualify as religious worship and which do not.

The Shrine paid the tax under protest, sought an abatement, which was denied, and appealed the Assessors' denial to the Appellate Tax Board. The Appellate Tax Board confirmed the Assessors' decision that portions of the Shrine's property were not tax exempt, and the Shrine appealed.

The SJC took the case on direct Appellate review in December 2015, and sought amicus briefs on the issue of whether the statute's exemption for "houses of religious worship" applies to portions of a taxpayer's property used for "fundraising, charitable, and 'ecospiritual' activities that the taxpayer maintains are part and parcel of its overall religious mission. . ." While the primary appellate issue relates to interpretation of the G.L. c. 59, §5, Eleventh (a tax statute exempting houses of religious worship from assessments of local taxes), First Amendment freedom of religion issues and potentially sweeping consequences for churches and other faith-based organizations are at stake.

Full disclosure: this firm submitted an on behalf of an interfaith collection of 12 religious organizations in support of the Shrine, and raising concerns about religious freedom and autonomy given the ATB's suggestion that local tax assessors have the power to reach into religious organizations and determine what constitutes religious worship for any particular group.

Commonwealth v. Laltaprasad (SJC-11970)

Whether a judge may depart from the mandatory minimum sentences for a conviction for possession of drugs with intent to distribute (and, essentially, for conviction of other offenses with some exceptions).

A jury convicted Imran Laltaprasad of possession of (less than 5 grams) of cocaine and heroin with an intent to distribute. Due to recidivist enhancements, the minimum sentence for his offenses is typically 3.5 years. The Superior Court imposed a sentence of 2.5 years given its findings of mitigating circumstances, including the relatively small amount of drugs involved and Laltaprasad's extreme medical condition resulting from an earlier attack on his life.

The Commonwealth appealed, arguingthat a 1996 law, G.L. c. 211E, section 3(e), which states on its face that judges may "impose a sentence below any mandatory minimum term" [with specific exception] when mitigating circumstances exist does not allow departure from the mandatory minimum sentence in this case because section 3(e) was contingent upon the enactment of sentencing guidelines, which have not been enacted. The Commonwealth relied on the SJC's 1995 decision in Commonwealth v. Russo, which predated the enactment of section 3(e), but interpreted its uncodified predecessor, in which the SJC ruled that judges could depart from mandatory minimums but only after sentencing guidelines were enacted.

Laltaprasad, represented by Matt Segal and others at the ACLU, argued that section 3(e) is plain on its face and it allows judges to depart from the mandatory minimum sentences, that Russo does not control because it interpreted an earlier, uncodified version of the law, that the legislature made other sections of chapter 211E expressly contingent on promulgation of sentencing guidelines, but did not do so with section 3(e), and that interpreting the statute to require adherence to the mandatory minimum in this case would violate statutory construction canons and raise constitutional issues.

The argument was lively and went long. While Justice Cordy and a few other justices appeared ready to apply Russo and to read section 3(e) to require promulgation of sentencing guidelines, and Justice Hines even referred to Laltaprasad's argument as "old wine in new skin", others seemed not so sure, although some appeared to wonder whether ruling on the statute itself would fully deal with the issue or merely set the statute up for constitutional challenges.

Stay tuned. Rulings in 120 days (give or take).

The Supreme Judicial Court today issued its opinion in Van Liew v. Stansfield, SJC-11905, another anti-SLAPP decision. This time, the Court reversed a district court judge's allowance of a special motion to dismiss under the anti-SLAPP statute filed by former Chelmsford Selectwoman sued for abuse of process and malicious prosecution after she sought (and obtained, temporarily) a harassment prevention order under G.L. c. 258E, section 3.

The SJC concluded that the special motion should not have been allowed because the defendant met his burden of showing that the alleged petitioning activity (seeking the harassment prevention order) was devoid of factual support and caused Van Liew actual injury.

The case arose out of a dispute between a Chelmsford planning board member, Colleen Stanfield, and, at the relevant time, a candidate for Chelmsford Selectman, Roland Van Liew. The two had history: Van Liew was active in the community and often disagreed publicly with Stanfield's positions.

When Van Liew ran for Selectman, he held a public "meet and greet," which Stanfield attended (she admitted, to "rattle Van Liew's cage"). During the meeting, Stanfield challenged publicly many of his positions. At the end of the meet and greet, Standfield approached Van Liew and asked him if he planned to participate in upcoming debates. Standfield claimed Van Liew threatened her ("I'm coming after you.") and that Stanfield told him he was "looking at a restraining order." Van Liew says he did not threaten her, but told her not to send anymore anonymous letters to his wife, to which, he claims, Stanfield responded, "you need a restraining order."

Stanfield promptly spoke to police and filed a request for a harassment prevention order under G.L. c. 258, section 3 in the District Court. An ex parte temporary order issued. At a full hearing, Van Liew testified as to her version of what occurred at the meet and greet, and identified a couple of instances in which Stanfield had called her "corrupt and a liar" and other names ("uneducated" and "stupid"). The court concluded the requirements of chapter 258, section 3 had not been met, that the speech at issue was political speech, and was not threatening in any way, and vacated the temporary order.

Van Liew filed suit against Stanfield asserting claims for abuse of process and malicious prosecution. Stanfield filed an anti-SLAPP motion, which the district court allowed (finding that she had been sued based on petitioning activity and that Van Liew had not met his burden to show the petitioning activity was devoid of reasonable factual basis). Van Liew appealed to the Appellate Division, which reversed, finding Van Liew had met his burden, and remanded for trial. Stanfield appealed to the Appeals Court, and the SJC transferred the cases on its own motion.

The Court first addressed the procedural issues of whether a party appealing the allowance of an anti-SLAPP motion can file an immediate appeal directly with the Appeals Court - answer: yes.

The Court noted that it had previously ruled in Fabre v. Walton in 2004 that regardless of where the case was commenced (which department of the trial court), a trial judge's denial of a special motion could be appealed directly to the Appeals Court. Citing concerns about "certainty, uniform treatment of similarly-situated litigants, and consistent development of the law relating to the anti-SLAPP statute," the Court confirmed that "any party in a case pending in the District Court who seeks to appeal from the denial or he allowance" of an anti-SLAPP motion "should file the appeal directly in the Appeals Court . . ."

With respect to the merits of the special motion, the Court disposed of the first prong of the anti-SLAPP analysis quickly, noting that there was no dispute that the the defendant Stanfield met her burden since Van Liew's complaint focused solely on her application for a harassment prevention order, which the anti-SLAPP statute cover.

With respect to Van Liew's burden to show that the petitioning activity was devoid of factual support and that it caused him actual injury, the Court looked at the requirements under chapter 258, section 3. It noted that the statute defines "harassment" as "three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property that does in fact cause fear, intimidation, abuse or damage to property." The court noted that this definition was crafted "to exclude constitutionally protected speech," and to limit the categories of constitutionally unprotected speech to two: "fighting words" ("must be a direct personal insult addressed to a person, and they must be inherently likely to provoke violence") and "true threats" ("direct threats of imminent physical harm").

The Court found that none of Van Liew's alleged words constituted fighting words or direct threats within the meaning of chapter 258, section 3, that they were largely political speech, and otherwise insufficient to constitute harassment. And "because Stanfield failed to present three or more acts of harassment, she was not entitled to a harassment prevention order." Van Liew thus met his burden to show that her request for such an order was "devoid of any factual support or any arguable basis in law" despite that a judge originally granted the request temporarily, given that the order was vacated after a full hearing that was the first time Van Liew was heard. Facts insufficient to support the order could not be cured by the fact that judge originally entered a temporary order.

Van Liew also met his burden to show the petitioning activity caused him actual injury, as he was required to hire a lawyer and to incur fees and costs.

Read our other anti-SLAPP alerts.

Today, I attended, by web, the MBA's Program - Feed Your Mind: Appellate Practice and Procedure. It was a practical and frank panel discussion of dos, don'ts and tips for better practice, briefs and argument. I have summarized them below. Disclaimer: These are my words and only my words based on what I heard, unless there are quotation marks. This is not a transcript (and, admittedly, my web session crashed once). Any commentary is just my own opinion. None of this is legal advice. Seriously? Come on.

From the Clerk's Office:

Assistant Clerk Patricia Malone, Esq. spoke and gave an array of helpful tips, some dos, don'ts and precautionary tales, and a few points of information.

You really, really, really should sign up for e-notification (form available here). Do it. Don't think about it. Just do it.

A notice of appeal should reference all orders or judgments from which you are appealing AND the date of each order or judgment.

If a post-judgment motion is filed within ten days of a judgment, any notice of appeal filed in the interim is void and a new notice of appeal must be filed after the trial court rules on the post-judgment motion.

When the record is assembled by the trial court and you receive notice of assembly of the record, the Appeals Court does not get "everything" - it gets notices of appeal, a copy of the docket and perhaps a few other things. Include everything that the panel needs to look at in the Record Appendix.

Docketing fees must be received by (not sent to) the Appeals Court on or before the tenth day after Notice of Assembly of the Record.

Docketing statements are important. They lay out a bit about the case and also are very important to flag the existence of impounded materials.

Notices of appeal are typically due 30 days after an order or judgment issues, unless a statute says otherwise. When the time is fixed by statute, the Single Justice cannot enlarge the time. Otherwise s/he can enlarge the time by up to a year.

File motions to enlarge the time to file a brief before the deadline to file the brief.

The clerk's office is looking at procedural defects (like a late notice of appeal) closely to attempt to deal with them before an appeal is fully briefed.

The judges do not like it when your brief is more than 50 pages. (They really don't like it. See below).

It is important to have your addendum in order because the judges really rely on them to quickly reference the order or judgment appealed from, and any applicable statutes or regulations.

Post-argument Rule 16(l) letters should not contain argument unless the panel at argument specifically requested that the parties provide a post-argument letter on specific points. If you send in a Rule 16(l) letter that contains argument, the clerks will alert the panel to this fact and the panel may strike it as a result. If the panel requested the letter, you should say so in the letter when you send it in. Otherwise, Rule 16(l) letters should be used for, well, what Rule 16(l) says they should be used for: citing additional authority, and no more.

A very practical tip when you plan to seek further appellate review, but need more time: file a motion to stay issuance of rescript, but you now need to [e-]file this motion in the SJC, not in the Appeals Court.

From the Court (Hon. William J. Meade):

Appeals Court Justice William J. Meade spoke with the obvious benefit of both his years of service on the court and years of practice as an appellate advocate before his appointment to the bench.

Tips for Briefs

Briefs should get to the point quickly and try to keep from writing a very long brief. (Wait, what? But sometimes longer briefs are better!). Justice Meade emphasized the importance of including a good introduction, especially in a complex case and underscored that the summary of the argument is important and can be used to steer the reader to the most important points. He even suggested including one whenever the argument is more than ten pages. (The rules require a summary of argument if the argument is more than 24 pages).

Each brief should have an accurate statement of the case, outlining what was alleged/charged, the status of all counts, etc. and each sentence should end with a citation.

Be honest, but persuasive in the statement of the facts. NEVER EVER write a fact statement that is merely a chronology of each witnesses' testimony.

Be aware of and address the standard of review. Deal with it.

The reply brief is not an opportunity to rehash or get in the last word. You do not have to file one. You can if there is a need to deal with a new issue, but Justice Meade pointed out, you may want to save that ammunition for oral argument.

Tips for Oral Argument

Speaking of oral argument, Justice Meade said it best: "It's not about you." It is about the panel. It's not your moment in the spotlight. It is a chance to convince three busy judges that you have the better argument.

Read the record, learn the record, know the record, live the record. You should be able to cite to the record accurately and quickly on important facts and events.

And be honest. "Don't lie to us," says Justice Meade. You will lose credibility with the judges and the court.

Arguing attorneys should know the important cases inside and out. The facts and the law.

Know who is on your panel. Research the panel members. Go watch an argument they are sitting on. Find out what they have written in the past. If it is on point, know it. Be able to talk about. If it seems bad for you, know how to explain it isn't bad for you. In other words, DO YOUR HOMEWORK.

And more homework. Moot your arguments, formally or informally, before the real thing. Even if you have argued many appeals before.

Do not make a lengthy recitation of the facts, repeat your brief or otherwise assume the judges haven't read the parties' submissions. They have. Move on. Get right to it.

If there is a straightforward way for the Court to rule in your favor, tell the panel right up front. For example, if there is a procedural defect, or the court can avoid reaching a constitutional issue or an issue argued by the other side was not raised below, tell them at the beginning of your argument.

Answer the judges' questions. Even the bad ones. Even the hard ones. Even the hypothetical ones. Don't fight the question. Never say, "I will get to that in a minute." Get to it now. And never try to avoid the question by saying, "that's not my case." The judges know that. They are trying to make law. They are testing the boundaries. And your arguments.

Do not interrupt or talk over the judges. No brainer.

Oh, um, don't read your argument! In fact, Rule 22(c) states, "Counsel will not be permitted to read, except briefly, from briefs, records, prepared statements, records or authorities."

Here is a good one. Do not argue to the panel like they are a jury. They are not robots, but they are not going to decide the case based on emotion. What you may find works at trial may signal lack of merit on appeal. Not every great trial lawyer is a great appellate lawyer. As Justice Meade points out, trial work and appellate work require different skill sets.

Do not overstate or self-assess your case. Let the facts and the law do the talking.

Do not engage in ad hominem attacks on your opponent. Appellate argument is "not a street fight."

Other things you may want to know:

Asst. Clerk Malone estimated that without party-requested extensions, the Appeals Court process from docketing to decision typically takes about a year. Once a case is fully briefed, it is usually heard within 4-5 months.

You can sign up to be on the Mass Appeals Court electronic mailing list to receive announcements of important items, including weather closings, amicus requests, the upcoming e-filing pilot program. You can sign up by sending an email to MassAppealsCourt-Join@jud.state.ma.us.

The Appeals Court recently began issuing amicus announcements.

The Appeals Court will soon be starting an e-filing pilot program. It will allow you to file your appeal and pay your docketing fee on line and to file various other papers as well. Each transaction will incur a $7 fee. Stay tuned for more.

Mass. R. App. P. 8 and 9 are being reviewed and possibly revamped.

The Massachusetts Supreme Judicial Court today in Katz, Nannis & Solomon,P.C. v. Levine, ruled that parties to an arbitration agreement that is subject to the Massachusetts Arbitration Act, G.L. c. 251 ("MAA"), cannot contract around the "exclusive grounds" for judicial review set forth in the MAA.

The Court concluded that the statute's plain language, legislative intent and policy considerations of preserving arbitration as "an expeditious and reliable alternative to litigation" all supported its decision. Allowing parties to modify contractually the limited grounds for judicial review under the MAA would, the Court explained, "spawn potentially complex and lengthy case-within-a-case litigation devoted to determining what the parties intended by the contractual language they chose."

The case stems from a dispute among four members of an accounting firm, Levine, Katz, Nannis & Solomon, P.C. that arose when three of the firm's members, Allen Katz, Lawrence Nannis and Jeffrey Solomon ("KNS") voted to terminate the fourth member, Bruce Levine as a shareholder and director of the firm, Levine disputed their ability to do so under the stockholders' agreement, left, started a competing firm, and took some of the firm's employees with him.

The stockholders' agreement provided that it was "subject to and governed by the laws of the Commonwealth of Massachusetts pertaining to agreements executed in and to be performed in the Commonwealth of Massachusetts." It contained an arbitration clause providing for "binding arbitration" of any dispute regarding "any aspect of the Agreement" before a single arbitrator apppointed by the American Arbitration Association.

The arbitration provision stated that the arbitrator's decision "shall be final," but stated that "in the event of a material, gross and flagrant error by the arbitrator, such decision shall be subject to review in court. . ." This provision, if enforced, would have expanded the scope of judicial review available under the MAA, which since its 1960 enacted has provided for judicial review only to determine if an arbitrator exceeded the scope of his or her authority, or decided the arbitration based on "fraud, arbitrary conduct, or procedural irregularity in nthe hearings."

Noting the the parties' agreement was governed by the MAA, the Supreme Judicial Court, following United States Supreme Court precedent in Hall St. Assoc., L.L.C. v. Matell, Inc., 552 U.S. 576 (2008), in which the Supreme Court ruled that parties could not contractually modify the "exclusive grounds" for judicial review in the FAA, ruled that parties cannot, through contract, "modify the scope of judicial review that is set out in sections 12 and 13 of the MAA.

The SJC explained:

The legislative intent forbidding contractual expansion of the statutory grounds for judicial review is demonstrated by comparing the language of the judicial review provisions, which are directives and not default provisions, with other provisions of the MAA that provide a statutory default in case the parties do not include a governing provision in their contract. One example the Court gave of a default provision to contrast was the provision in section 3 of the MAA, which states how an arbitrator is appointed if the parties have not provided a method of appointment in their contract. The Court's reading of sections 11 through 13 of the MAA comports with 56 years of court decisions interpreting the MAA, all of which have concluded that arbitration awards are subject to a very narrow scope of review on very limited grounds. "[S]trong policy considerations" support limiting the scope of judicial review, because, the SJC explained, "[a]llowing parties to expand the grounds for judicial review would undemrine the predictability, certainty, and effectiveness of the arbitral forum that has been voluntarily chosen by the parties." Slip op. at 17 (quotation omitted).

Remember that old quote, "If I had more time, I would have written a shorter letter"? It suggests that a shorter letter is more difficult, takes more time and is better. But shorter may not always be better. Less may not always be more. Sometimes more is, well, more.

Counsel Press recently blogged abouta proposed rule before the Committee on Rules of Practice and Procedure to shorten federal appeals briefs by 1000 words and a study by two law professors, Professor Gregory C. Sisk, University of St. Thomas School of Law (Minnesota), and Professor Michael Heise, Cornell Law School, that suggests longer briefs may be more winning briefs.

Yes, you read that right.

Longer briefs might sometimes be better - at least for appellants. According to the study's authors, longer briefs corresponded with a better chance for appellants in civil cases to obtain reversal:

"Brief length proved powerfully significant in our study and with substantial effect—for appellants. However, the direction of correlation was the opposite of the conventional judicial wisdom. Longer briefs by appellants were associated with a greater probability in achieving reversal, while exceptionally short briefs were much more likely to be filed in losing appeals. For this set of civil appeals, persuasive completeness may be more important than condensed succinctness."

And to think of the many hours I have spent cutting extra pages out of briefs!

Of course, Professors Sisk and Heise spoke of "persuasive completeness" as the optimum goal, not length for the sake of length. Wordiness is never good. And making a brief less wordy, more organized, precise, clean and on point, in fact, is more difficult, takes longer and, ultimately, yes, is better.

But "persuasive completeness" is sometimes difficult when margins are 1 1/2 inches on each side, font size is Courier or 14 point, and words, lines and pages are limited. Sometimes the case is complex and the facts and legal arguments require more explanation. In those cases, uncompromising page, word and other limits might actually impede the ability fully and fairly to present an argument on appeal in the most persuasive way possible.

Appellate courts are fastidious about word counts, page counts, line counts, text and footnote font sizes, margins, and a whole slew of formatting requirements. Briefs that do not comply are rejected and sent back for a do-over. I know what you are thinking: motion for additional words or pages. But those motions are not often met with enthusiasm.

While the Sisk/Heise study focused on a sampling of civil cases in the Ninth Circuit, its conclusions make sense generally. Particularly as an appellant, when you face the prospect of overcoming striking affirmance rates to convince the appellate court that the lower court made a mistake, a few more pages in a brief may help crystallize an important issue and may make all the difference to the questions asked at oral argument.

While the time it takes to read and digest briefs and the use of judicial resources is important, justice is paramount. Strict adherence to length and word count limits may actually have the exact opposite effect than intended. The rules should have enough play in them to allow each party to present a brief that comports with the type of "persuasive completeness" Professors Sisk and Heise envisioned.

"Sure, go ahead and cut my brief by 1000 words," said no appellate lawyer, ever.

FAQ

"Double spacing" under the Massachusets Rules of Appellate Procedure means "not more than three lines of text per vertical inch and not more than twenty-seven double-spaced lines on a page." Mass. R. App. P. 20(a)(3).

Karen Partanen v. Julie Gallagher

Parentage of woman whose same-sex partner gave birth to two children while the two women were a couple and had agreed to have children together

Karen Partanen filed a Verified Complaint in Equity purusant to G.L. c. 215, § 6, G.L. c. 209C, and G.L. c. 46, § 4B, in which she asked the family and probate court to declare her to be the full legal parent of the two minor children born through assisted reproductive technology to her same-sex partner, Julie Gallagher, during the couple's 13 year relationship and pursuant to their plans to start a family, and to grant her shared custody of the children.

The trial court dismissed the complaint, concluding that Partanen did "not meet the statutory requirements for presumed/legal parentage under G.L. c. 46, § 4B or G.L. c. 209C," because she was neither the children's biological parent nor married to Gallagher. Partanen appealed and sought direct appellate review, which the SJC granted on December 17, 2015.

In a separate case, Partenan sued in equity for a declaration that she was a "de facto parent" pursuant to G.L. c. 215, § 6 and for shared custody of the children. Gallagher stipulated that Partenan is a de facto parent under the statute and, in a case of first impression, the probate and family court made detailed factual findings (including that Partanen and Gallagher were a couple for approximately 13 years, agreed to have children together, participated in assisted reproductive technology together toward that end, that Partanen was present for the children's births, received them into the joint home with Gallagher, supported and parented the children, who knew her "as mommy"), and ultimately awarded Partanen joint legal and physical custody of the children. Gallagher has appealed that decision separately.

The case currently before the SJC asks the Court to recognize Partanen's full parental status, and argues, among other things, that granting Partanen the "full parental rights and responsibilities", while maintaining "the nomenclature of 'de facto parent'" would "create a new status that is equal to ['parent'], yet separate from it." and a "stigma of exclusion." Partanen SJC Brief at p. 50 (internal quotation omitted).The case raises serious constitutional questions and practical issues for parents and children, biological, marital and non-marital.

GLAD's Mary Bonauto and others are collaborating with attorney Patience Crozier and with Partenan's trial counsel, Elizabeth Roberts and Teresa Harkins La Vita, and on the appeal.

The SJC requested amicus briefs on all of the major legal issues raised by the case. Read Partanen's Blue Brief here. Gallagher's brief is due March 17, and the SJC has scheduled argument for April 5.

Nancy Chadwick v. Duxbury Public Schools et al.

Union-member testimonial privilege

Plaintiff, Nancy Chadwick, asks the Court to recognize a privilege for communications she had as a union member with her union representatives in connection with her discrimination complaint.

Chadwick, a former schoolteacher, sued the Duxbury Public Schools and other related parties in Plymouth Superior Court for employment discrimination. During discovery, a dispute arose regarding the discoverability of Chadwick's email communications with her union representatives. The school moved to compel and Chadwick cross moved for a protective order. Judge Yessayan refused to recognize the union communications privilege, denied the motion for protective order, allowed the motion to compel and ordered Chadwick to produce her emails with her union representatives.

On Chadwick's petition to a Single Justice, Justice Grainger affirmed Judge Yessayan's order, but stayed the production order for seven days to allow Plaintiff to seek further review, which she did. Once docketed in the Appeals Court, the SJC sua sponte took the matter up, and is soliciting amicus briefs on the issue of "Whether Massachusetts will recognize a union-member testimonial privilege, such that the plaintiff in this case, in her underlying employment discrimination action against her employer, would not be required to produce in discovery communications between herself and her union representatives related to her case."

No briefs yet. Keep an eye out for the Blue Brief on March 11, and the Red Brief on April 11.

Shrine of Our Lady of LaSalette v. Board of Assessors of Attleboro

Taxation of religious organization based on Assessors' determination that some of the organization's activities do not qualify as exercise of religion.

Many locals know LaSalette for its Christmas lights display and hot chocolate on cold winter nights, but to many Catholics the Shrine of Our Lady of LaSalette is much more. The Shrine has existed in Attleboro, Massachusetts since 1953. After years of recognizing the Shrine as tax-exempt in large part, recently, the Town Tax Assessors have changed their tax strategy vis-a-vis the Shrine and have decided to tax the Shrine significantly based on the Assessors' own determination of which of the Shrine's activities qualify as religious and which do not.

The Shrine paid the tax under protest, sought an abatement, which was denied, and appealed the Assessors' decision to the Appellate Tax Board. The Appellate Tax Board confirmed the Assessors' decision that portions of the Shrine's property were not tax exempt, and the Shrine appealed.

The SJC took the case on direct Appellate review in December 2015, and sought amicus briefs on the issue of whether the statute's exemption for "houses of religious worship" applies to portions of a taxpayer's property used for "fundraising, charitable, and 'ecospiritual' activities that the taxpayer maintains are part and parcel of its overall religious mission. . ." While the primary appellate issue relates to interpretation of the G.L. c. 59, §5, Eleventh (a tax statute exempting houses of religious worship from assessments of local taxes), First Amendment freedom of religion issues and potentially sweeping consequences for churches and other faith-based organizations are at stake.

Read the Briefs here: Bluebrief. Red brief due today. Argument is expected to occur in April.

The Massachusetts Appeals Court yesterday issued its decision in , another in a long series of appellate level cases involving the Massachusetts anti-SLAPP statute, General Laws chapter 231, section 59H. It is noteworthy for at least two reasons.

*The decision on its face extends anti-SLAPP protection for press statements.

The panel in Blanchard concluded that the defendant hospital president's statements quoted in the newspaper constituted protected petitioning activity within the protection of the First Amendment and the anti-SLAPP statute because (1) they were made in the context of regulatory and public scrutiny and in an effort to influence regulators, and although the statements were not made to the regulatory agencies, the regulators may have read or had access to them; (2) they were not unsolicited and they were "mirror images" of statements made in an investigative report by the hospital's outside counsel hired to help it address regulatory and licensing issues.

*The Court applied the anti-SLAPP statute to dismiss a portion of a single claim.

The anti-SLAPP motion in Blanchard sought dismissal of one count - defamation - of a multi-count complaint against the hospital, its president and others. Notwithstanding the well-established requirement that a claim be "based solely on" petitioning activity to qualify for anti-SLAPP dismissal, the Court parsed the defamation claim, dismissing so much of the claim that was based on the hospital president's press statements and allowing the rest of the claim, which was based on the president's internal email to hospital staff, to stand.

THE FACTS.

Plaintiffs were RNs working in the inpatient adolescent psychiatric unit at the defendant hospital. The hospital fired the plaintiff nurses after an investigation of complaints of abuse or neglect of patients in the unit having nothing to do with the plaintiff nurses and in response to a recommendation from outside counsel that all staff in the unit be replaced. After terminating the plaintiff nurses, the hospital president wrote an internal email to hospital staff stating, among other things, that certain "individual employees have not been acting in the best interest of the patients, the hospital, or the community [they] serve" and that "[a]s a result, [he has] terminated the employment of each of the individuals."

The next day, the Boston Globe ran an article stating that the hospital president had hired Scott Harshbarger to investigate a claim that an employee had sexually assaulted a teenager in the unit and that Harshbarger had recommeded "to start over on the unit." The Globe article quoted the hospital president's statement that the Harshbarger's report "described 'serious concerns about patient safety and quality of care.'" and reported that the hospital president further stated, "We will have top-notch employees replace those who left."

The Harshbarger investigation, the terminations, the email and the statements to the Boston Globe occurred at a time when the hospitial was under licensing scrutiny from the DMH, DPH, and DCF as a result of four complaints of abuse or neglect in the unit, again, having nothing to do with any of the plaintiff nurses. Later, a DMH report found wrongdoing by two staff members. In another Boston Globe article about the unit's problematic situation, the hospital president was quoted as stating, "[t]he Harshbarger report indicated that it wasn't a safe situation" and that he had based his decision to terminate the entire staff "on an investigation by [Harshbarger] and his law firm."

THE PROCEEDINGS.

The plaintiff nurses sued the hospital and its president for defamation, and other claims.The defendants filed a special motion to dismiss the defamation claim based on the anti-SLAPP statute. The trial court (Giles, J.) found that the defendants' press and email statements did not constitute protected petitioning activity and denied defendants' special motion to dismiss.

On appeal, the Appeals Court affirmed in part and reversed in part. The Court framed the central issue in the case as "whether, during a period of crisis when [the hospital] faced the loss of its license to operate an in-patient adolescent psychiatric unit (unit) because of purported patient abuse and neglect, statements quoted in the newspaper made by the president of the hospital, and an [email] the president sent to staff announcing the dismissal of unnamed employees in the unit under review, constituted protected petitioning activity."

The Panel's answer: Yes and No.

The Appeals Court concluded that the hospital president's statements to the Boston Globe constituted protected petitioning activity because they were made in the context of scrutiny from the regulatory licensing agencies and public pressure on those agencies to close the unit and withdraw its license. The Court reasoned that the hospital president's statements in that context were part of a "comprehensive approach to fixing the problems at the unit" undertaken "to ensure that the hospital retained its license and to prevent the unit from being closed." When viewed in this context, the Court explained, the hospital president's statements to the Globe "were designed to communicate to the regulatory agencies that the hospital was taking action to avoid losing its license to operate the unit." After all, the Court explained, it was clear that DMH "would be paying attention, or at least would have access to these articles."As the Court concluded: "With the agencies continuously monitoring the situation and the unavoidable publicity that developed around it, the media essentially became a venue to express the perspectives of each side; as such, the Boston Globe articles were available to, and likely considered by, the regulatory agencies."

Following Blanchard, statements to the media made in the midst of a public controversy or surrounding regulatory or other governmental issues, may now qualify for anti-SLAPP protection. The panel also extended the Wynne v. Creigel "mirror image" rule to press statements that were close to the report prepared by counsel for the defendant.

The Appeals Court went on to find that while the hospital president's statements to the Boston Globe did constitute protected petitioning activity, his email to hospital staff did not. This was so according to the Court because while the email may have been part of the overall strategy to address unit conditions with hopes of influencing the regulators, there was nothing to indicate the email itself had been provided to regulators or that regulators were told about it. The Court reversed the trial court's denial of the special motion to dismiss insofar as it had allowed the entire defamation claim to survive, and concluded that while the claim survived, it could not be based on the hospital president's statements to the Globe, only on his internal email.

The anti-SLAPP statute allows dismissal of a claim "based solely" on petitioning activity. This "based solely on" standard was the Supreme Judicial Court's effort to avoid constitutional questions surrounding the anti-SLAPP statute raised in Duracraft v. Holmes Prods. Corp., 427 Mass. 156 (1998). It requires a party seeking disimssal based on the anti-SLAPP statute to make a "threshold showing" that the complaint is based solely on petitioning activity and has no other substantial basis. The Supreme Judicial Court crafted this requirement to address the constitutional "conundrum" of how to protect a defendant's right to petition the government, while also protecting the plaintiff's right to petition by filing suit.

Recognizing that the nurses' defamation claim as a whole was not "based solely" on petitioning activity, the Appeals Court dealt with the "based solely" on requirement by explaining that even though the claim was not based solely on petitioning activity, it could have been because the Globe statements and the email were "distinct actions" that "could readily have been the subject of separate counts."

In other words, notwithstanding the SJC's ruling in Duracraft, claims can be dismissed in part even if they are not "based solely" on petitioning activity.

NOTES FOR DIE-HARD ANTI-SLAPP FANS

1. The Plaintiff nurses also sued Harshbarger and his firm for defamation and intentional infliction of emotional distress based on Harshbarger's investigative report. They countered with their own special motion to dismiss, and the trial court found the statements in the report constituted protected petitioning activity under the anti-SLAPP statute. The Court went on to find the hospital president's statements were petitioning activity also because they were "essentially" "mirror images" of statements in the Harshbarger report.

2. The Court did not need to analyze the second prong of the anti-SLAPP statute (whether the petitioning activity was devoid of reasonable basis in fact or law and caused plaintiffs actual injury) because the plaintiffs had not argued otherwise.

3. Justice Mary T. Sullivan concurred in the result, but questioned whether a single count alleging two separate bases for defamation could be dismissed given the "based solely on" requirement set out in Duracraft. Justice Sullivan noted that "[w]here the pertinent allegations suggest that there may be both petitioning activity and nonpetitioning activity, the motion must be denied." Justice Sullivan went on to wonder whether the SJC's decision in Wenger v. Aceto (allowing without discussion dismissal of less than all claims on anti-SLAPP grounds) applied or whether the pronouncement by the Appeals Court in Ehrlich v. Stern that the anti-SLAPP inquiry "produces an all or nothing result" correctly states the law. She concurred in the majority's result because she found that the statements to the Globe were protected "mirror image" statements, but invited "further clarification of the reach of the 'sole purpose' doctrine first articulated in Duracraft." She also cited this author's article One claim at a time: The inherent problems with piecemeal application of the anti-SLAPP statute.