The High Burdens of an Anti-SLAPP Motion to Dismiss: Bristol Asphalt Co., Inc. v. Rochester Bituminous Prods., Inc., No. 21-P1135, 2023 WL 3134396 (Mass. 2023)

May 2023 • Source: Melick & Porter

A motion to dismiss filed under the Massachusetts anti-SLAPP statute creates great obstacles for plaintiffs. This was recently demonstrated in Bristol Asphalt Co., Inc. v. Rochester Bituminous Prods., Inc., No. 21-P1135, 2023 WL 3134396 (Mass. 2023). In Bristol Asphalt Co., Inc., the plaintiff brought a multi-charge anticompetition suit against the defendant alleging that the defendant had, on three separate occasions, filed petitions to block the development of the plaintiff’s concrete plant resulting in a decade long delay to development, nearly $12 million in lost profits and hundreds of thousands of dollars in legal fees. The plaintiff responded by filing a special motion to dismiss under G. L. c. 231 §59H (commonly known as the anti-SLAPP statute).

To evaluate the merits of such a special motion to dismiss, courts will apply the burden-shifting framework first established in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998) and modified in Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159-60 (2019). The burden-shifting framework consists of two stages. In the first stage, the movant, the party making the motion, “must make a threshold showing . . . that the claims against it ‘are “based on” the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.’” After the movant meets its burden, the burden shifts to the nonmovant. In the second stage, the nonmovant can satisfy its burden via two paths: either (1) establish, by a preponderance of the evidence, that the movant “lacked any reasonable factual support or any arguable basis in law” for their petitioning activity and that the petitioning activity caused the nonmoving party actual injury; or (2) establish that the nonmovant’s “claim is not a ‘meritless’ SLAPP suit ‘brought primarily to chill the special movant’s . . . legitimate petitioning activities.’”

Here, the first stage was satisfied as the plaintiff conceded that its claims against the defendant were based solely on the defendant’s petitioning activities. As such, the burden shifted to the plaintiff.

The Court then considered all three instances of defendant petition to determine if the petitions were void of any reasonable factual or legal basis. The first defendant petition was to the town planning board challenging the board’s approval of the site plan. The defendant asserted two arguments: (1) the site would increase noise levels leading to a decrease in value of the surrounding property and (2) construction on the site would lead to traffic issues as trucks congest the road. The Court found both arguments were without any factual or legal basis. The noise level issue was already addressed by the town planning board as they conditioned site approval on the site’s compliance on DEP noise regulations. The traffic issue was also without basis as the defendant’s evidence was based in assumed facts rather than any facts specific to the site.

In the second defendant petition, the defendant challenged an extension order issued by the town conservation committee to give the plaintiff more time to perfect their incomplete notice of intent. The defendant petitioned to require the plaintiff to restart the entire process as too much time had passed since the initial filing of the notice. The Court found the petition without basis as the defendant’s petition was based solely on the passage of time rather than any new information which rendered the prior filing or notice inadequate.

In the third defendant petition, the defendant filed a fail-safe review under the Massachusetts Environmental Policy Act (“MEPA”). Again, the Court found the petition meritless as the defendant did not produce any evidence that the plant would cause any damage the MEPA is concerned with or that MEPA review was essential to avoid or minimize environmental impact of the plant.

As all three defendant petitions were without actual evidence or based upon assumed facts and resulted in massive losses to the plaintiff, the plaintiff met their burden under the second stage of the burden-shifting framework. As a result, the Court affirmed the lower court’s denial of the defendant’s special motion to dismiss.

This decision underscores the high bar that the nonmovant needs to meet when faced with the second stage of a special motion to dismiss under the G. L. c. 231 §59H and the courts desire to prevent the use of frivolous petitions to impede competition. If you have any question about these issues, Melick & Porter’s team of experienced attorneys are always available to help.