In managing to maneuver the not-so-common intersection of First Amendment rights and construction litigation, Boston Partner, Jay Gregory, and Associate, Shaun Loughlin, recently prevailed on a motion to dismiss pursuant to Massachusetts’ anti-SLAPP statute (M.G.L. c. 231, § 59H), and also received an award of costs and fees incurred in defending the claim.
The firm’s client, in its capacity as an owner’s project manager on a public construction project, wrote a letter to the mayor of the city where the project was located that critiqued a subcontractor’s performance. The subcontractor, in turn, filed a defamation lawsuit. Gregory and Loughlin moved to dismiss the claim, arguing that it violated our client’s right to petition the government. A Massachusetts Superior Court agreed, and also awarded our client fees and costs associated with filing the motion.
Relevant Facts
A city hired our client to serve as the project manager for the construction of a new high school. The city separately retained a construction manager to oversee construction efforts. Numerous issues arose on the project, including construction defects, schedule delays, and COVID-19-related impacts. One subcontractor in particular contributed to many of these issues, and the construction manager repeatedly notified the subcontractor of these issues.
The subcontractor’s owner turned to social media to air his grievances with the construction manager, publishing a lengthy Facebook post in a group run by a city newspaper. In the post, the subcontractor’s owner accused the construction manager of wasting taxpayer dollars, deceiving the city council, and hiding construction defects from the public. The Facebook post, as one can imagine, subsequently went “viral.”
Our client, in its capacity as project manager, penned a private letter to the mayor that clarified and rebutted the subcontractor’s inflammatory Facebook post. In the letter, our client critiqued the subcontractor’s qualifications to work on the project, and also placed blame on the subcontractor for causing a majority of the project issues. Our client provided the mayor with project documentation that substantiated its remarks in the letter.
The mayor publicly shared the letter on his own Facebook page as a response to the subcontractor’s viral Facebook post. The subcontractor retaliated by filing a lawsuit against our client, alleging that the letter contained false and defamatory statements that caused the subcontractor to incur damages in the form of lost business opportunities, lost good will in the community, and the potential loss of future contracts.
Gordon & Rees’ Motion and the Court’s Decision
Massachusetts’ anti-SLAPP (“Strategic Litigation Against Public Participation”) statute provides that any party who is the subject of a civil lawsuit as a result of his/her lawful exercise of the right to petition the government under the U.S. or Massachusetts Constitution may move for a special motion to dismiss. An “exercise of the right to petition” occurs when someone submits a written or oral statement to any governmental body that, for example, concerns ongoing governmental proceedings; addresses matters under governmental investigation; encourages the government to consider investigating an issue; or enlists public participation in a matter of public concern. The definition of “petitioning” is quite broad.
Gregory and Loughlin argued that our client’s letter to the Mayor rebutting the subcontractor’s Facebook post constituted “petitioning the government” because the letter pertained to a public construction project, funded in-part with taxpayer dollars, and thus garnered significant public interest. Because the subcontractor’s Facebook post also called upon the local newspaper to investigate the construction manager, Gregory and Loughlin also argued that the letter concerned a matter that was potentially subject to investigation by a governmental body.
The Superior Court agreed that the letter amounted to “petitioning,” and also agreed that the subcontractor filed its lawsuit solely because of the letter—the subcontractor’s only claim was that the letter contained defamatory statements. Therefore, the claim was subject to the anti-SLAPP statute.
In Massachusetts, when one proves it engaged in petitioning activity, and that it faces a lawsuit solely because of that petitioning, the anti-SLAPP statute shifts the burden of proof to the plaintiff, and requires the plaintiff to defeat the motion in one of two ways. First, the plaintiff can prove the defendant had no factual support for its statements, and that the statements caused actual damages. Second, the plaintiff can prove its claim is “colorable,” and that the defendant engaged in “sham petitioning.” Regardless of which avenue a plaintiff takes to overcome the burden, the plaintiff must prove both essential elements.
The subcontractor chose the first avenue, arguing our client lacked factual support for its statements in the letter, and that the statements caused actual damages. The Court disagreed, finding that nearly every statement in the client’s letter to the mayor had factual support. Even if no support existed, though, the subcontractor still failed to show the existence of “actual” damages—merely claiming lost good will and potential loss of future contracts was insufficient to overcome the anti-SLAPP motion (the subcontractor admitted that it remained on the project until completion). Because the subcontractor failed to defeat the shifted burden (and also declined to argue its claim was colorable and our client engaged in sham petitioning), the Court granted the motion and awarded costs and fees, which are guaranteed for prevailing parties under the anti-SLAPP statute.
Conclusion
Anti-SLAPP motions are rare in the construction context, especially in cases involving two project participants. Thus, this is a major victory for those in management positions on public construction projects, as it demonstrates that OPMs and other parties involved in public projects may be protected from disgruntled subcontractors when reporting candidly and honestly to a governmental entity. It also further clarifies (or, perhaps, expands) the definition of “petitioning,” so as to cover statements uttered to a governmental entity in both a professional and personal capacity—while our client submitted the letter in its capacity as a project manager, it also did so in order to defend its own performance, which the subcontractor called into question in the Facebook post. Therefore, while many states (including Massachusetts) provide a qualified privilege for those who utter defamatory statements in the furtherance of business interests, the anti-SLAPP statute may afford protection in the same situation.