In Bristol Asphalt, Co. v. Rochester Bituminous Products, Inc., the Supreme Judicial Court of Massachusetts revamped the framework through which it analyzes litigation under the Commonwealth’s “anti-SLAPP” statute.[1] That statute establishes a high-priority motion to dismiss claims “based on” the movant’s “exercise of its right of petition” under the U.S. and Massachusetts constitutions.[2] 

Defendants Albert Todesca and Paul Todesca owned and operated an asphalt plant in Rochester, Massachusetts. The plaintiffs, Bristol Asphalt and an affiliated development company, sought regulatory approval to build an asphalt plant that would have competed with the Todescas’ plant.[3] The Todescas and their company brought a string of regulatory challenges to impede the development of Bristol’s rival plant, including contests to the new plant’s site plan approval and to the conditions on the property imposed by the local zoning board.[4] 

After these challenges were resolved in Bristol’s favor, Bristol sued the Todescas and their company, alleging that their repeated challenges were abuses of process.[5] The Todescas moved to dismiss under Massachusetts’ anti-SLAPP law.[6] The trial court denied the motion, holding that the Todescas’ petitioning activities “had been a ‘sham.’”[7] The Appeals Court affirmed, and the Supreme Judicial Court granted review.[8] 

Writing for a unanimous court, Justice Kafker framed the opinion by describing the anti-SLAPP statute’s unusual breadth.[9] For one, it applies to commercially motivated litigation, an unusual feature for such statutes.[10] And the statute “immunize[s] this broad category of conduct from suit, except where it is ‘devoid of any reasonable factual support or any arguable basis in law.’”[11] In other words, to survive a special motion under the statute, the claimant must show that the movant’s actions were “‘devoid’ of ‘any’ reasonable basis in fact or law.”[12] As the court noted, “[t]his approach differs from most States’,” as most anti-SLAPP motions can be defeated by a showing of likelihood of success on the merits.[13] This feature of the statute creates a “constitutional problem and paradox”: the claimant’s right to petition is impeded by the movant’s invocation of the anti-SLAPP statute.[14] 

To address this issue, Massachusetts courts had previously “construed the term ‘based on’ to ‘exclude motions brought against meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated.’”[15] That holding ballooned into a complex analysis of a claim’s strength, expounded through several cases over 20-odd years.[16] 

For the most part, Bristol Asphalt did away with that complexity and streamlined Massachusetts’ anti-SLAPP regime. The court established a simple, two-part analysis that tracks the statute’s language and structure.[17] First, the anti-SLAPP movant must provide pleadings and affidavits sufficient to show “that the claims against it are ‘based on’ [its] petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.”[18] Second, if the movant makes that showing, the burden shifts to the claimant to show that the movant’s petitioning “was devoid of any reasonable factual support or any arguable basis in law” and “caused actual injury.”[19] Finally, the court held that appellate review of decisions on Massachusetts anti-SLAPP motions is de novo.[20] 

Applying this new framework to the dispute, the court concluded that the Todesca litigants had demonstrated that the Bristol plaintiffs’ lawsuit was based solely on covered petitioning activities.[21] But the court concluded that the Bristol litigants had shown “that the petitioning activities lacked any reasonable factual support or arguable legal basis.”[22] Analyzing this question, the court carefully considered each petitioning activity, concluding that each was a “sham.”[23] 

In sum, Bristol Asphalt, Co. v. Rochester Bituminous Products, Inc. cleared decades of underbrush from Massachusetts anti-SLAPP analysis, streamlining the implementation of the statute for courts and litigants alike.

 

[1] 227 N.E.3d 1019 (Mass. 2024). “SLAPP” is an acronym for “strategic litigation against public participation.”

[2] Mass. Gen. Laws Ann. ch. 231, § 59H.

[3] Bristol Asphalt, 227 N.E.3d at 1028.

[4] Id. at 1028-30.

[5] Id. at 1030.

[6] Id. 

[7] Id. at 1030-31. 

[8] Id. at 1031.

[9] Id. at 1032.

[10] Id. at 1032-33.

[11] Id. at 1033 (quoting Mass. Gen. Laws Ann. ch. 231, § 59H). 

[12] Id. (quoting Mass. Gen. Laws Ann. ch. 231, § 59H).

[13] Id. 

[14] Id.

[15] Id. (quoting Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935 (Mass. 1999)).

[16] See id. at 1034-35.

[17] Id. at 1036.

[18] Id. at 1036-37 (quoting Duracraft, 691 N.E.2d at 935). 

[19] Id. at 1038 (quoting Mass. Gen. Laws Ann. ch. 231, § 59H).

[20] Id. at 1041-42.

[21] Id. at 1042. 

[22] Id. 

[23] Id. at 1045.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.