Cardno ChemRisk, LLC v. Foytlin
476 Mass. 479
| Mass. | 2017Background
- ChemRisk, a scientific consulting firm, published a BTEX exposure report for BP regarding Deepwater Horizon cleanup workers concluding exposures were below OSHA limits.
- Defendants Foytlin and Savage, environmental activists, published a Huffington Post blog criticizing ChemRisk and alleging prior fraudulent conduct in a separate study (chromium-6) used to attack ChemRisk’s credibility.
- ChemRisk sued the defendants for defamation in New York and Massachusetts; the New York action was dismissed for lack of jurisdiction, and the Massachusetts suit proceeded.
- Defendants filed a special motion to dismiss under Massachusetts’ anti-SLAPP statute, G. L. c. 231, § 59H, claiming the blog was protected petitioning activity and that they had a reasonable factual basis for their statements.
- The Superior Court denied the anti-SLAPP motion, finding the defendants were not petitioning on their own behalf; the Supreme Judicial Court reversed, holding the blog was protected petitioning and ChemRisk failed to show the statements lacked any reasonable factual support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Huffington Post article constituted "exercise of the right of petition" under G. L. c. 231, § 59H | Article did not petition on defendants' own behalf; defendants merely advanced others' interests, so no petition privilege | Article was part of defendants' ongoing advocacy to influence public agencies, litigation coverage, and enlist public participation — fitting statutory petition categories | Article qualified as petitioning activity under the statute (e.g., statements likely to enlist public participation and connected to ongoing litigation) |
| Whether petitioning must be selfish/personal to receive anti-SLAPP protection | Right to petition limited to petitions on one's own personal grievances; non-self-interested advocacy not protected | Constitutional right to petition includes both private and public grievances; petitioning on behalf of causes is protected | Petitioning need not be limited to purely personal grievances; public-interest advocacy is protected |
| Whether defendants were acting in a capacity that negates petitioning protection (e.g., as contracted expert, employee, or journalist) | Defendants were not petitioning in their own right (analogizing to experts/employees/journalists in prior cases) | Defendants spoke as independent activists, not as contracted experts, government employees, or neutral reporters; thus they exercised their own right to petition | Unlike Kobrin/Fisher/Fustolo, defendants acted in their own advocacy capacity and so exercised their own right to petition |
| Whether ChemRisk showed by a preponderance that the challenged statements were devoid of any reasonable factual or legal support | ChemRisk pointed to a letter from the original researcher and disputed allegations, claiming no reasonable factual basis for defendants' assertions | Defendants supplied verified affidavits and multiple published sources supporting their characterizations and similar accusations against ChemRisk | ChemRisk failed to show the statements lacked any reasonable factual support; defendants met threshold and the special motion must be allowed |
Key Cases Cited
- Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (establishes anti‑SLAPP special motion two‑stage framework and legislative purpose)
- Kobrin v. Gastfriend, 443 Mass. 327 (distinguishes petitioning on one’s own behalf from contracted expert testimony)
- Fustolo v. Hollander, 455 Mass. 861 (holding journalist reporting in assigned capacity not exercising personal right to petition)
- Baker v. Parsons, 434 Mass. 543 (protects non‑self‑interested petitioning on environmental matters)
- North Am. Expositions Co. v. Corcoran, 452 Mass. 852 (communications closely related to judicial proceedings can be protected petitioning)
- Hanover v. New England Reg’l Council of Carpenters, 467 Mass. 587 (statute protects those who advance causes they believe in)