Heard: October 7, 2016.
special motion to dismiss was heard by Edward P.
Supreme Judicial Court granted an application for direct
H. Reichman, of New York (James E. Grumbach also present) for
L. Meier, of Virginia (Samuel Perkins also present) for the
R. Sutcliffe, Jeffrey J. Pyle, & Sarah R. Wunsch, for
American Civil liberties Union of Massachusetts, amicus
curiae, submitted a brief.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
April 20, 2010, an oil rig operated by British Petroleum
(BP), known as Deepwater Horizon, suffered a catastrophic
explosion causing approximately 4.9 million barrels of oil to
flow into the Gulf of Mexico, some forty miles off the coast
of Louisiana. Three and one-half years after the oil spill,
and during the ensuing multidistrict Federal litigation in
New Orleans regarding BP's liability for it, the
defendants, both environmental activists, contributed an
article appearing in the Huffington Post, an Internet Web
site. That article, also known as a "blog posting,
" contained criticism of the plaintiff, Cardno ChemRisk,
LLC (ChemRisk), a scientific consulting firm that BP had
retained to assess the toxic effects of the oil spill on
cleanup workers. ChemRisk maintains that certain of these
criticisms constitute actionable defamation.
brought claims for defamation against both defendants, in
Massachusetts and in New York. The defendants filed a
special motion to dismiss the Massachusetts suit under G. L.
c. 231, § 59H, the "anti-SLAPP" statute. A
Superior Court judge denied the motion, concluding that
insofar as the Internet blog posting at issue did not concern
or seek to advance the defendants' own interests, but
rather those of the cleanup workers, the defendants had not
met their threshold burden of showing that the suit was based
exclusively on the "exercise of [their] right of
petition under the [C]onstitution, " as that phrase has
been interpreted in our case law. G. L. c. 231, § 59H.
We conclude, to the contrary, that the defendants were
engaged in protected petitioning activity, which was the sole
basis of the plaintiff's defamation claim, and therefore
they have met their threshold burden. On the record before
us, the plaintiff cannot show, as it must in order to defeat
the special motion, that such petitioning was devoid of
reasonable factual support or arguable basis in law. We
pertinent facts taken from the pleadings and affidavits of
record are these. ChemRisk is a scientific consulting
company that produces reports and provides expert testimony
for clients concerning the environmental risks of their
products. In one such report, ChemRisk scientists examined
the extent to which cleanup workers responding to the
Deepwater Horizon spill had been exposed to the chemicals
benzene, toluene, ethylbenzene, and xylene (collectively
known as BTEX). ChemRisk concluded that such exposure was
substantially below permissible limits set by the
Occupational Safety and Health Administration.
Cherri Foytlin, a life-long resident of the affected region,
works full time as an environmental activist. Defendant Karen
Savage also participates in environmental advocacy. Since the
occurrence of the oil spill in 2010, both defendants have
devoted substantial time to exploring its environmental
consequences, particularly its effects on cleanup workers,
and to advocating on behalf of those adversely affected. One
of their efforts in this regard was to write a piece entitled
"ChemRisk, BP and Purple Strategies: A Tangled Web of
Not-So-Independent Science" that appeared on the
Huffington Post's "Green Blog, " in which they
challenged ChemRisk's BTEX report. The "Green
Blog" described itself as "[f]eaturing fresh takes
and real-time analysis, " and the article appeared there
on October 14, 2013, under the byline "Cherri Foytlin,
Gulf Coast based author and journalist, " along with a
note that "Karen Savage contributed to this
article begins by discussing then-ongoing Federal litigation
against BP taking place in the United States District Court
for the Eastern District of Louisiana, in which, among other
things, BP's experts contested the extent of the damages
caused by the spill. The article asserts that BP and the
environmental experts it employs do "not exactly have a
reputation for coming clean on the facts."
defendants then discuss ChemRisk's BTEX report as an
example of BP's experts not "coming clean, "
referring to the study as "independent" and
"science" (both in quotation marks). The article
goes on to claim, in the passage alleged to be defamatory,
that ChemRisk, in connection with an unrelated scientific
study unflattering to a different client, had engaged in
"As it turns out, ChemRisk has a long, and on at least
one occasion fraudulent, history of defending big polluters
using questionable ethics to help their clients avoid legal
responsibility for their actions.
"One well known example is the case that became the
basis for the movie Erin Brokovich, where the polluter and
defendant Pacific Gas and Electric (PG & E) was found to
have paid ChemRisk to discredit research done by Chinese
scientist Dr. Jian Dong Zhang.
"In an earlier study, Zhang had found strong links
between chromium-6, which was found in Hinkley,
California's drinking water, and cancer. ChemRisk
obtained Dr. Zhang's data, and without his knowledge,
intentionally manipulated the findings to contradict his own
"The erroneous data was then submitted to the Journal of
Occupational and Environmental Medicine (JOEM) as though it
had been re-worked by Dr. Zhang
article closes by asking whether "anyone will ever . . .
make [things] right" in the Gulf Coast.
response to the blog posting, a ChemRisk representative wrote
by electronic mail to the Huffington Post demanding a
retraction, and an editor forwarded the message to Foytlin.
She responded that she did not believe the piece contained
factual errors, and it remained posted on the site, where it
drew comments from readers. In April, 2014, six months after
the article appeared, ChemRisk filed a defamation action in a
New York State court against Foytlin and Savage. In December,
2014, while that case was pending, ChemRisk filed another
defamation suit, based on the same set of facts, in the
Massachusetts Superior Court. After a judge of the New York
Supreme Court allowed the defendants' motion to dismiss
for lack of personal jurisdiction, ChemRisk amended its
complaint in Massachusetts, and engaged in discovery.
August, 2015, the defendants filed a special motion to
dismiss under the anti-SLAPP statute,  asserting that the
claim against them was based solely on their exercise of the
right to petition, that they had a reasonable factual basis
for their statements, and that they caused no injury. See
Duracraft Corp. v.Holmes Prods.
Corp., 427 Mass. 156, 167-168 (1998)
(Duracraft). Relying on this court's decision in
Fustolov.Hollander, 455 Mass.
861 (2010), the judge determined that because the defendants
were not seeking to redress a grievance of their
own, they were not engaged in protected petitioning
activity. He therefore denied the motion without reaching the
questions whether the defendants' statements had a
reasonable basis in fact or whether they caused ...