(Jeffrey Gould has written for The Saint Report about SLAPP suits and legal rights to protect public participation in the development process. Here he examines the impact of a Massachusetts court ruling that helps developers avoid the consequences of filing such claims.)
The Massachusetts Appeals Court ruled last month that victims of retaliatory lawsuits cannot recoup their legal fees and expenses when the perpetrator voluntarily dismisses its suit before a court enters judgment for the victim.
The Court applied a strict interpretation of the so-called “anti-SLAPP” statute in ruling that attorney fee awards are only available if and when a judge makes a finding that the suit is indeed retaliatory. Connolly v. Sullivan, Appeals Ct. No. 09-P-597 (Feb. 23, 2010). The plaintiff in that case, the former Massachusetts Secretary of State Michael J. Connolly, had sued an abutter for $5 million in damages for challenging an affordable housing project being promoted by Connolly in Wellesley, Massachusetts. The abutter filed a Special Motion to Dismiss under the anti-SLAPP statute, but before the trial court ruled on the motion, Connolly voluntarily withdrew his claim.
The statute was enacted to prevent real estate developers from filing specious lawsuits against their detractors in order to intimidate or quell opposition to their projects. The statute awards the victims of such suits their attorneys’ fees when successful. This ruling is troublesome for victims, because it gives developers a parachute to avoid the fee-shifting consequences of filing such claims.
Developers can now engage in the egregious conduct by filing the suit and forcing defendants to spend thousands on attorneys to draft the Special Motion to Dismiss.
The costs of preparing the Motion and presenting oral argument before the trial court could easily exceed $10,000, which victims will not be able to recover if the developer dismisses its suit before a judgment. The state legislature could correct this ruling by amending the statute to preclude voluntary dismissals while a Special Motion to Dismiss is pending.
Jeffrey R. Gould is vice president and general counsel for The Saint Consulting Group, email firstname.lastname@example.org, phone 781.749.7290 Ext: 7115