Superior Court of Massachusetts, Suffolk, Business Litigation Session
AMERICAâS TEST KITCHEN, INC.
Christopher KIMBALL et al.
MEMORANDUM AND ORDER DENYING PLAINTIFFâS MOTION TO
DISMISS WILLIAM THORNDIKE, JR.âs COUNTERCLAIMS
Kenneth W. Salinger, Justice of the Superior Court
Christopher Kimball used to work for Americaâs 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.
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.
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
now moved to dismiss Thorndikeâs 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.
anti-SLAPP statute applies to and may bar civil claims that
are based on a partyâs "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 âSLAPPâ stands for strategic lawsuit against public
participation." Gillette Co. v. Provost, 91
Mass.App.Ct. 133, 134 n.2 (2017).
met its initial burden of showing that the anti-SLAPP statute
is implicated here because Thorndikeâs 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 ATKâs petitioning activities. See
Fabre v. Walton, 436 Mass. 517, 522-24 (2002) (abuse
of process claim was based solely on defendantâs petitioning
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).
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
Kimballâs ability to compete against ATK, it could find that
ATK committed the tort of abuse of process and violated
considering the circumstances as a whole, the Court is
convinced that Thorndikeâs primary purpose in asserting his
counterclaims is to seek and obtain compensation for injuries
caused by ATKâs alleged abuse of process and unfair trade
practices. Cf. Blanchard, supra, at 160.
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 anotherâs valid petitioning activity."
Blanchard, 477 Mass. at 157.