Cardno Chemrisk, LLC v. Foytlin

• Decision Date: 14 February 2017
• Docket Number: SJC–12082
• Citation: 68 N.E.3d 1180
• Parties: CARDNO CHEMRISK, LLC v. Cherri FOYTLIN & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

68 N.E.3d 1180

CARDNO CHEMRISK, LLC

v.Cherri FOYTLIN & another.¹

SJC–12082

Supreme Judicial Court of Massachusetts, Suffolk..

Submitted October 7, 2016.

Decided February 14, 2017.

John H. Reichman , of New York ( James E. Grumbach , Wellesley, also present) for the defendants.

Megan L. Meier , of Virginia ( Samuel Perkins , Boston, also present) for the plaintiff.

Thomas R. Sutcliffe, Jeffrey J. Pyle, & Sarah R. Wunsch , Boston, for American Civil liberties Union of Massachusetts, amicus curiae, submitted a brief.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

LENK, J.

On 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.

ChemRisk brought claims for defamation against both defendants, in Massachusetts and in New York.² 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 accordingly reverse.³

1. Background. The pertinent facts taken from the pleadings and affidavits of record are these.⁴ 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.

Defendant 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."

The 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.⁵ The article asserts that BP and the environmental experts it employs do "not exactly have a reputation for coming clean on the facts."

The 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 deceptive tactics:

"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 earlier studies.

"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 personally."⁶

The article closes by asking whether "anyone will ever ... make [things] right" in the Gulf Coast.

In 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.

In August, 2015, the defendants filed a special motion to dismiss under the anti-SLAPP statute,⁷ 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, 691 N.E.2d 935 (1998) (Duracraft). Relying

on this court's decision in Fustolo v. Hollander, 455 Mass. 861, 920 N.E.2d 837 (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 actual injury. The defendants filed an interlocutory appeal, see Fabre v. Walton, 436 Mass. 517, 521–522, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004), and we granted their application for direct appellate review.⁸

2. Discussion. ChemRisk contends that the anti-SLAPP statute offers the defendants no protection. Because their article did not address a grievance personal to them, ChemRisk argues that the defendants were not exercising their right to petition, as required by the statute. We disagree. Such a constrained view of the right of petition, a right the anti-SLAPP statute exists to protect, is without basis in the United States or Massachusetts Constitution or in our case law.

a. Statutory background. The object of a SLAPP⁹ suit is not necessarily to prevail, but rather, through the difficulty and expense of litigation, to discourage and intimidate individuals from exercising their constitutional right of petition. See Duracraft, 427 Mass. at 161, 691 N.E.2d 935. Although not limiting the statute to such cases, the Legislature enacted G. L. c. 231, § 59H, primarily to protect "citizens of modest means" who speak out against larger, more powerful entities.¹⁰ See id. The statute allows a defendant who

believes he or she has been targeted in a SLAPP suit to file a special motion to dismiss that suit prior to completing discovery, thereby "provid[ing] a quick remedy" against the time and cost of otherwise protracted litigation. Kobrin v. Gastfriend, 443 Mass. 327, 331, 821 N.E.2d 60 (2005). A defendant who prevails on the special motion to dismiss is to be awarded attorney's fees and costs. See G. L. c. 231, § 59H.

The special motion procedure employs a two-stage framework. See Duracraft, 427 Mass. at 167–168, 691 N.E.2d 935. First, the special movants, here the defendants, must establish that the nonmoving party's claim is based solely on the special movant's protected petitioning activity. If the special movant so establishes, the burden shifts to the nonmoving party. To withstand the special motion to dismiss, the nonmoving party must show, by a preponderance of the evidence, that the special movant's petitioning activity was devoid of any reasonable factual or legal support and that it caused the nonmoving party actual injury. See Baker v. Parsons, 434 Mass. 543, 544, 750 N.E.2d 953 (2001) ; Duracraft, supra at 168, 691 N.E.2d 935 ; G. L. c. 231, § 59H.

The anti-SLAPP statute...