United States District Court, D. Massachusetts
HI-TECH PHARMACEUTICALS, INC. Plaintiff,
PIETER A. COHEN Defendant.
MEMORANDUM OF DECISION
WILLIAM G. YOUNG DISTRICT JUDGE
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.
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.
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.
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.
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
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
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 ...