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Hi-Tech Pharmaceuticals, Inc. v. Cohen

United States District Court, D. Massachusetts

September 22, 2016

HI-TECH PHARMACEUTICALS, INC. Plaintiff,
v.
PIETER A. COHEN Defendant.

          MEMORANDUM OF DECISION

          WILLIAM G. YOUNG DISTRICT JUDGE

         I. INTRODUCTION

         This case tests our commitment to the Seventh Amendment and America's civil juries - our constitutional guarantee that factual adjudication is reserved to the people themselves in all cases save for wholly admiralty and equity cases and those regulatory proceedings seeking regulatory orders. Hi-Tech Pharmaceuticals, Inc. ("Hi-Tech") here sues Pieter A. Cohen ("Cohen") for libel, slander, product disparagement, and violation of Massachusetts General Laws, chapter 93A. Compl., ECF No. 1. Hi-Tech's claims arise out of, inter alia, Cohen's publication of an article that Hi-Tech alleges contains false and defamatory statements about products manufactured by HiTech. See generally id. Cohen moved to dismiss Hi-Tech's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Def., Pieter A. Cohen's, Mot. Dismiss Compl., ECF No. 15. He also filed a special motion to dismiss the action under the Massachusetts Strategic Litigation Against Public Participation statute ("anti-SLAPP"), Mass. Gen. Laws ch. 231, § 59H. Def.'s Special Mot. Dismiss Pl.'s Compl. Pursuant M.G.L. c. 231 § 59H (anti-SLAPP Statute), ECF No. 13. The Court heard arguments on these motions on July 26, 2016, and denied both motions from the bench. Elec. Clerk's Notes, ECF No. 40.

         At the Court's invitation, the parties submitted further briefing on the issue of a potential conflict between dismissal of this case pursuant to the Massachusetts anti-SLAPP statute and the Seventh Amendment right to a jury trial, with Cohen requesting that the Court reconsider its denial of his special motion to dismiss. See id.; Def.'s Suppl. Br. Regarding Seventh Amendment Right Jury Trial and M.G.L. c. 231 § 59H (Anti-SLAPP Statute) ("Def.'s Suppl. Mem."), ECF No. 47; Pl.'s Mem. Opp'n Def.'s Mot. Reconsider ("Pl.'s Suppl. Mem."), ECF No. 48. After due consideration of this issue, the Court declined to alter its order denying Cohen's special motion to dismiss and here explains its reasons for such denial.

         II. ANALYSIS

         In support of his special motion to dismiss, Cohen argues that the Massachusetts anti-SLAPP statute immunizes him against claims based on statements in his article and subsequent related interviews. See Def.'s Mem. 9-13. Hi-Tech, meanwhile, contends that the conduct it complains of falls outside the scope of the anti-SLAPP statute. See Pl.'s Opp'n 7-13.

         The Massachusetts anti-SLAPP statute provides, in relevant part:

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

Mass. Gen. Laws. ch. 231, § 59H. In order for a defendant to prevail on a special motion to dismiss pursuant to the anti-SLAPP statute, he or she first must ''make a threshold showing through pleadings and affidavits that the claims against it are based on . . . petitioning activities alone . . . ." Fustolo v. Hollander, 455 Mass. 861, 865 (2010) (internal quotation marks and citations omitted). If the defendant makes this showing, the burden then shifts to the plaintiff to demonstrate that the defendant's petitioning conduct "lacked any reasonable factual support or any arguable basis in law." Id. (internal citations and quotation marks omitted). This section addresses these two steps in turn.

         A. Petitioning Activities

         The parties disagree, first, on whether the activities that give rise to Hi-Tech's complaint constitute protected "petitioning activities." Under the Massachusetts anti-SLAPP statute, petitioning activities include:

any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.

Mass. Gen. Laws ch. 231, § 59H. "Petitioning includes all statements made to influence, inform, or at the very least, reach governmental bodies - either directly or indirectly." N. Am. Expositions Co. v. Corcoran, 452 Mass. 852, 862, 864-65 (2009) (internal citations omitted) (holding that the complaint had no substantial target other than the petitioning activity because defendant's statements to community development foundation were the basis of the conduct complained of); see also Town of Hanover v. New England Reg'1 Council of Carpenters, 467 Mass. 587, 592 (2014) (ruling that "defendant's role in the commencement and maintenance" of action against a town and "providing legal counsel and advice to the taxpayers, falls within the statute's scope of protected activities").

         Here, Cohen has established that his article and subsequent interviews constitute petitioning activity. Def.'s Mem. Supp. Special Mot. Dismiss Pl.'s Compl. Pursuant M.G.L. c. 231 § 59H (Anti-SLAPP Statute) ("Def.'s Mem."), ECF No. 14. Cohen's article urges the Food and Drug Administration to review and take action on an issue of public concern - specifically, to remove certain of Hi-Tech's products from the supplement market. This written request for agency action is sufficient to bring the article under the relatively broad umbrella of petitioning conduct. See, e.g., Kobrin v. Gastfriend, 443 Mass. 327, 333 (2005) ("The right of petition contemplated by the Legislature is . . . one in which a party seeks some redress from the government.") (citing Webster's Third New Int'l Dictionary 1690 (1993)). Further, his comments in subsequent interviews constitute petitioning activities because they directly relate to the article. Contrast Ehrlich v. Stern, 74 Mass.App.Ct. 531, 538 (2009) (denying anti-SLAPP motion where ...


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