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America’s Test Kitchen, Inc. v. Kimball

Superior Court of Massachusetts, Suffolk, Business Litigation Session

June 6, 2018

AMERICA’S TEST KITCHEN, INC.
v.
Christopher KIMBALL et al.[1]

          MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION TO DISMISS WILLIAM THORNDIKE, JR.’s COUNTERCLAIMS

          Kenneth W. Salinger, Justice of the Superior Court

          Christopher Kimball used to work for America’s Test Kitchen on a television cooking show and on related programming and publications distributed through various media. This lawsuit arises from his development of a competing business.

         Among its other claims, ATK sued William Thorndike, Jr., for allegedly misappropriating confidential information, aiding and abetting a breach of fiduciary duty by Kimball, and violating G.L.c. 93A, § 11.

         Thorndike responded by asserting counterclaims against ATK for abuse of process and violation of G.L.c. 93A, § 11. Thorndike alleges that ATK asserted claims against him in order to harass, punish, and financially harm him for helping Kimball start a new business called CPK Media, LLC, and in an attempt "to obtain an unlawful competitive advantage against CPK Media’s business."

         ATK has now moved to dismiss Thorndike’s counterclaims, arguing that they are barred by the so-called anti-SLAPP statute, G.L.c. 231, § 59H, and in any case must be dismissed under Mass.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The Court concludes that this motion is without merit.

         1. Anti-SLAPP Motion

         The anti-SLAPP statute applies to and may bar civil claims that are based on a party’s "exercise of its right of petition under the constitution of the United States or of the commonwealth." See G.L.c. 231, § 59H. "The acronym ‘SLAPP’ stands for strategic lawsuit against public participation." Gillette Co. v. Provost, 91 Mass.App.Ct. 133, 134 n.2 (2017).

         ATK has met its initial burden of showing that the anti-SLAPP statute is implicated here because Thorndike’s counterclaims are based solely on the bringing of this lawsuit, which is a petitioning activity, and have no substantial basis other than or in addition to ATK’s petitioning activities. See Fabre v. Walton, 436 Mass. 517, 522-24 (2002) (abuse of process claim was based solely on defendant’s petitioning activity).

         The Court must nonetheless deny this part of the motion to dismiss because Mr. Thorndike has adequately shown that his counterclaims are not a "SLAPP" suit, in that they were not brought primarily to chill legitimate petitioning activities by ATK but instead were brought to seek damages for injury Thorndike suffered as a result of allegedly unlawful conduct by ATK. See Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141, 159 (2017).

         Thorndike has stated colorable claims for abuse of process and violation of c. 93A, which is a "necessary but not sufficient factor" in proving that the counterclaims are not a SLAPP suit. Id. at 160-61. As discussed in more detail below, if a jury were convinced that ATK asserted baseless claims against Thorndike in order to hinder Kimball’s ability to compete against ATK, it could find that ATK committed the tort of abuse of process and violated G.L.c. 93A.

         Furthermore, considering the circumstances as a whole, the Court is convinced that Thorndike’s primary purpose in asserting his counterclaims is to seek and obtain compensation for injuries caused by ATK’s alleged abuse of process and unfair trade practices. Cf. Blanchard, supra, at 160.

          The anti-SLAPP statute does not bar such claims. See Alnylam Pharm., Inc. v. Dicerna Pharm., Inc., MICV20154126, 34 Mass.L.Rptr. 504, 2017 WL 6395719, at *5 (Oct. 23, 2017) (Leibensperger, J.). As the Supreme Judicial Court recently explained, "[t]he Legislature did not intend" that the anti-SLAPP statute be used "to forestall and chill the legitimate claims-also petitioning activity-of those who may truly be aggrieved by the sometimes collateral damage wrought by another’s valid petitioning activity." Blanchard, 477 Mass. at 157.

         2. Rule 12(b)(6) Motion

         2.1. Abuse ...


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