A recent case from the Northeast should send a very strong, if obvious, message: anti-SLAPP rules are meant to protect legit petitioning activities, not half-baked interference.
SLAPPS, or “strategic lawsuits against public participation,” were once a popular tool deployed to intimidate or silence citizens’ groups and smaller competitors by threatening or bringing litigation. In response, an increasing number of states have passed “anti-SLAPP” statutes that protect good-faith actors—even competitors—from such litigation or threats, so long as the suits are based on their First Amendment petitioning activity, and their activity is not a “sham.”
What’s a “sham”? Well, according to a recent unpublished opinion in Massachusetts, a “community group” composed entirely of business competitors and repeated, meritless legal and administrative proceedings.
In https://scholar.google.com/scholar_case=17940416176791653589&q=covanta+semass+v+earthsource+llc&hl=en&as_sdt=4,22”Covanta Semass, LLC v. EarthSource, Inc, a Massachusetts appellate court affirmed the judgment of a lower court denying EarthSource’s motion to dismiss Covanta’s abuse of process suit.
EarthSource had sought to prevent Covanta from securing certain permits from the Department of Environmental Protection to allow for grease recycling at an existing facility. EarthSource initiated a handful of lawsuits, each near identical, under a Massachusetts statute that permitted ten or more citizens to challenge governmental decisions that could potentially harm the environment. Using a similar statute, EarthSource also intervened in a number of administrative proceedings. Each suit was dismissed as lacking merit. After several years of such litigation Covanta brought an abuse of process suit pursuant to Massachusetts law.
EarthSource moved to dismiss the lawsuit under Massachusetts anti-SLAPP provision. This motion was denied because the underlying litigation was a sham.
Like most states, Massachusetts courts will undertake a two-part process to determine whether to grant an anti-SLAPP motion to dismiss. The first is whether the non-movant’s suit is based on the movant’s petitioning activities. The second is whether the petitioning activity, insofar as litigation is involved, is initiated as a sham.
The court found that the underlying activities were a sham. There were several reasons why.
First, EarthSource is a competitor, and the “community group” that brought the challenges were composed almost entirely of EarthSource employees and the firm itself. Second, the lawsuits were “uniformly” dismissed as lacking merit, and were all almost identical to one another. None of the lawsuits EarthSource brought made it past the pleading stage, for example, and the grounds or rationale for the suits changed very little. Third, some of the participants in the citizen suit were not even aware that the suits were being pursued (i.e., they were strawmen).
Business have a right to petition the government, even when it involves their competitors. Anti-SLAPP statutes, which a majority of states have enacted, will typically protect you from litigation based on your First Amendment activity. But as this case shows, the right to Petition is not without responsibilities both legal and common sense:
First, if an issue of public and private interest arises, go into the community and work with groups and citizens that have an interest in the matter.
Second, any use of judicial or administrative process should be predicated on a fair argument with a reasonable chance of success. Even a long-shot case can win–but it must have merit. Duplicative proceedings or bad faith loses the protection of the First Amendment and anti-SLAPP.
Third, citizen participants in litigation must not be strawmen–they should be informed, empowered, and have a stake in what is happening.
Ramsin Canon is Senior Vice President, Director of Legal Services of The Saint Consulting Group, email Canon@tscg.biz