Howard Cooper Attorney Boston MA Boston Howard M Cooper Law Boston Howard Cooper Boston Howard M. Cooper Esq. Attorney Boston

Howard Cooper Attorney Boston MA

Howard Cooper Lawyer Boston MA Boston Howard Cooper Law Attorney Howard M. Cooper Boston MA Howard Cooper Esq.


Howard Cooper Attorney Boston MA Boston Howard M Cooper Boston Howard Cooper Boston Howard M. Cooper Attorney Boston

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Howard M. Cooper

hcooper@toddweld.com
Howard M. Cooper Boston Attorney Howard Cooper Law

Howard M. Cooper is a Founding Partner of Todd & Weld LLP. Mr. Cooper's experience includes over two decades of extensive trial practice in both state and federal courts, before administrative agencies and in arbitration in the areas of complex business litigation, real estate and partnership litigation, contract matters, automotive franchise disputes, class action litigation, civil rights, First Amendment law and criminal defense.

 

Mr. Cooper has successfully represented numerous individuals and companies in a wide variety of matters. This has included, for example, the successful defense of a large automotive distributor sued in a civil RICO and anti-trust class action by its New England franchised dealers. The dismissal of the case in the United States District Court of New Hampshire after several years of litigation was later affirmed by the 1st Circuit Court of Appeals in Lussier v. Subaru of New England, et al (393 F.3d 36) (2004).

Mr. Cooper successfully defended the purchaser and redeveloper of the Necco Candy Building in Cambridge against a $40 million claim brought by The Lyme Timber Company and others, a judgment which was upheld by the Massachusetts Appeals Court in DSF Investors LLC v. The Lyme Timber Company, et al (67 Mass. App. Ct. 1110, 854 N.E.2d 1267)(2006).

Mr. Cooper has also successfully defended an adoption agency sued over an international adoption in another case of first impression in Massachusetts in Forbes v. The Alliance for Children, Inc. (Suffolk Superior Court, 1999).

Examples of Mr. Cooper's successes on the criminal side include the successful defense of a professional basketball player in a complex sexual assault case, the defense of executives in white collar criminal prosecutions, and his achieving recognition by the 1st Circuit Court of Appeals in United States v. Bradstreet (207 F.3d 76)(2000) of a previously unrecognized basis for a sentencing departure in a white collar criminal case of first impression.

More recently, Mr. Cooper's trial successes have included the widely reported case resulting in a $2.1 million jury verdict on behalf of Massachusetts Superior Court Judge Ernest Murphy against The Boston Herald. That decision has been hailed nationally as a landmark public figure defamation case important to the independence of the judiciary. The jury verdict in favor of the judge was recently upheld by the Massachusetts Supreme Judicial Court in Murphy v. Herald, et al. (449 Mass. 42, 865 N.E.2d 746) (2007). In its unanimous decision, the SJC commented that as a result of Mr. Cooper's cross-examination of the Herald reporter who wrote the stories about Judge Murphy, the reporter's credibility at trial was left “in tatters.”

Mr. Cooper has handled other cases on behalf of Judges and public officials which have been widely reported on in the legal and other press including his procuring an on-air apology from WEEI talk show hosts Dennis and Callahan for making allegedly defamatory statements about members of a prominent North Shore family.

Mr. Cooper recently argued successfully in the Supreme Judicial Court in The Cadle Company v. Jan Schlichtmann 448 Mass. 242, 859 N.E.2d 858)(2007) establishing important precedent under the Massachusetts Anti-Slapp statute.

In the area of civil rights, Mr. Cooper recently concluded his successful representation of a Boston area Islamic group attempting to build a Mosque and Cultural Center in Roxbury. Mr. Cooper's representation of the Boston area Muslim community in that case has been widely described as courageous, and he recently received an award presented by Boston area Muslims thanking him for his commitment to civil rights and religious freedom.

Mr. Cooper's practice also includes representation of companies and individuals who are the subject of government investigations at all stages of the process, the representation of professionals before licensure boards, and advising clients generally about their rights, obligations and potential liabilities before litigation arises.

 

Howard M. Cooper
The media’s worst nightmare?

 

A WIN CAN DO WONDERS: After winning Judge Ernest Murphy’s libel case against the Herald, Cooper was deluged by hundreds of inquiries from potential clients.A WIN CAN DO WONDERS: After winning Judge Ernest Murphy’s libel case against the Herald, Cooper was deluged by hundreds of inquiries from potential clients.
Howard Cooper is quickly making a name for himself as the city’s go-to guy for libel.

 

 

 

 

By MARK JURKOWITZ
On January 20, 2005, in an emotional opening statement to a Suffolk County jury, Howard Cooper declared that a Boston Herald series, which began in February 2002, had been so unfairly damaging to Superior Court Judge Ernest Murphy that the judge “has been seen crying in front of lawyers, in front of court officers.”
Twenty-nine days later — after deliberating for 25 hours and confounding the conventional wisdom that Murphy’s high-profile libel suit was a long shot at best — the jury awarded the judge nearly $2.1 million. And Howard Cooper’s life changed.
He found himself deluged by “hundreds” of inquiries from potential clients seeking help in media-related cases — 95 percent of which he quickly discarded. He became a sought-after speaker at panels and seminars. Massachusetts Lawyers Weekly named him one of its 10 “Lawyers of the Year” for 2005. Among the courtroom spectators in the Murphy case was an attorney for the Islamic Society of Boston (ISB), an organization impressed enough with Cooper to hire him for a conspiracy-and-libel lawsuit that could dwarf the Murphy case by the time it’s done generating headlines.
At age 46, and after two decades of practicing law, Cooper is something of a household name in media circles — although exactly what adjectives surround that name might vary. After beating the Herald in court and bringing the ISB suit against the tabloid and Channel 25, as well as their sources, he is an unpopular figure in some local newsrooms. And as a Jewish lawyer representing the ISB, Cooper is perched in the middle of an explosive case that threatens to pit Muslim against Jew, bringing the intractable Middle East conflict into court.
Cooper isn’t comfortable with a reputation as the media’s worst nightmare, asserting that “I’m not interested in being a plaintiff’s libel lawyer. I’m interested, to the extent possible, of [representing people] where a real wrong has been done and the legal system is available to correct it.”
And although there is a school of thought that says good lawyers should be dispassionate advocates for their clients, those who know him say Cooper’s intense faith in his cases is a big part of what motivates him.
“Howard tends to fall in love with the cause he’s pursuing,” says David Yas, publisher of Massachusetts Lawyers Weekly. “He’s a believer . . . in clients he takes on.”
Salma Kazmi is the assistant director of the ISB, which is contending in its sweeping lawsuit that the Herald, Channel 25, and some activists combined to undermine its new mosque, planned for Roxbury, by linking the organization to terrorists.
Kazmi says Cooper “is personally convinced that [the ISB officials are] innocent” and that “his ability to advocate is directly linked to the fact that in his mind, he’s completely convinced.”
Cooper has made some enemies and will make some more given his controversial caseload. But many of those familiar with his work tend to see him as the real deal — a passionate, sincere, and surprisingly idealistic advocate who is no fun to face across the aisle.
Murphy’s law
A Newton native, Cooper had a legal career embedded in his DNA. His father, who spent 42 years in the area as a “general practitioner,” was his role model. When he was about 12, he went to court to watch his father defend a man accused of stealing a ring from a jewelry store and recalled that “it was the most exciting thing I had ever seen.”
After getting his law degree from BU in 1984, Cooper went to work at Hale and Dorr before founding the Boston firm Todd & Weld with a small group of attorneys in 1991. (The downtown firm now has 35 lawyers.)
He estimates that about a quarter of his practice has been devoted to criminal-defense work, although he also spent time as the Boston Police Department’s legal representative prosecuting internal-affairs cases, and has represented students brought before college disciplinary boards for everything from plagiarism to sexual assault.
While Cooper had a brief stint as a journalist — he interned in the Albany UPI office while an undergrad at Union College — he does not have extensive media-related experience in the courtroom. He defended the Valley Advocate, in Springfield, in a libel case in the late 1980s. And in the wake of the Murphy case, he is now representing the plaintiffs in a defamation lawsuit against Northampton author Augusten Burroughs, whose 2002 bestseller Running With Scissors has been turned into movie slated to hit theaters this year.
Cooper and Judge Murphy knew each other; in fact, as lawyers, they once worked on a the same side of a case. But the two men hadn’t spoken for a few years when Cooper saw the Herald’s 2002 series criticizing Murphy for lenient sentencing practices. The Herald also reported that he once said of a young rape victim: “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.”
Cooper wrote a letter to Murphy expressing his support, which triggered a chain of events that led to his representing the judge. From the outset, most observers felt that Murphy had little chance of winning, particularly since, as a public figure, he would have to surmount the daunting obstacle of proving that the Herald had acted with actual malice.
For his part, Cooper says “I’ve defended people caught on video cameras robbing banks. Those are long odds. . . . My view was that if a jury heard this case, then the Herald would be held accountable.” In a dissenting opinion, Murphy himself characterizes Cooper as “a worrywart” who was far from confident about the outcome of his case. “He can’t see the glass as half full,” the judge adds. “He just can’t believe he can win.”
Whatever his real expectation, after hammering away at lead Herald reporter David Wedge, portraying Murphy as a man whose reputation, health, and career had been destroyed by reckless reporting, and attacking the paper for tabloid sensationalism, Cooper got his client a $2.09 million verdict, not counting the accruing interest.
The case is now on appeal and being handled by another lawyer. (Cooper says “appellate advocacy [is] not my strong suit.”) And there’s still plenty of legitimate debate about whether the jury verdict was justified. But nearly everyone agrees that Cooper, who was extremely well prepared and passionate in his advocacy for Murphy, gave a first-class performance in that courtroom. In interviews with a few jurors after the verdict, it became apparent that Cooper had convinced them that the “tell her to get over it” quote was inaccurate and that the paper’s repeated use of the quote essentially represented malice — no mean feat for any attorney.
Even Bruce Sanford, the attorney representing the Herald on appeal, acknowledges that Cooper “did a clever job of confusing the issues in a libel case. . . . The challenge there for a plaintiff’s lawyer is to cleverly confuse some of the issues and facts so that the jury thinks there’s some falsity.”
“He won a case that was thought to be unwinnable,” says Massachusetts Lawyers Weekly’s Yas, “and potentially changed the way people look at libel and slander cases.”
The mosque pit
Cooper says that when he was initially queried by an ISB attorney about taking the mosque case, “my first reaction was to say ‘you know I’m Jewish.’ And his reaction was, ‘is that a problem for you?’ ”
The newest incarnation of the ISB litigation, which was filed last October, is a greatly expanded version of two separate libel suits filed by officials of the society. In a breathtakingly ambitious legal strategy, they contend that the Herald, Channel 25, terrorism analyst Steven Emerson, and officials of the David Project and Citizens for Peace and Tolerance conspired to stop the Roxbury mosque project by falsely connecting the ISB to terrorism. The defendants have responded by arguing that the plaintiffs are trying to destroy free speech by intimidating people from raising the issue of whether the operation has dangerous ties to Islamic terrorism.
One observer calls the complex suit — still in its early phases with pending motions to dismiss — “this incredible colossus.”
“Is it unusual to allege a conspiracy between a media outlet and its sources?”, asks Cooper. “The court will decide whether it’s an appropriate legal theory.”
To say that the suit and surrounding issues are potentially divisive is a major understatement. The Boston Globe has reported that the battle “has deeply chilled Muslim-Jewish relations in Boston.” And the plaintiffs’ offer to take the case to private mediation received a chilly reception from the defendants and other interested parties.
“The best thing [Cooper] could do right now is to withdraw the lawsuits so real dialogue could resume on the issues,” says Andrew Tarsy, the New England regional director of the Anti-Defamation League.
However intense the controversy, Cooper typically views himself on the side of the angels.
“I believe that what I am doing is in keeping with the highest tradition of what I understand the Jewish culture to be about,” he says. “That is standing up and combating intolerance wherever you see it.”
A very different interpretation comes from an observer who says of the ISB: “If I’m them, a Jewish lawyer is a capture.”
It’s difficult to get those who might have an unfavorable view of Cooper to speak on the record. Officials at the Herald, at Channel 25, and at some organizations that have voiced concerns about the mosque declined to comment for this story. Their lawyers have also been understandably circumspect.
Even so, a picture emerges, from admirers and adversaries alike, of a talented and tireless advocate who leaves little to chance.
“There’s not a lawyer in Boston that works harder than Howard Cooper,” says Murphy. “Very adaptable in the courtroom, very good on his feet.”
Robert Dushman, the Herald’s lead attorney during the Murphy trial, says “his style is more theatrical than mine . . . and I think jurors who grew up watching cases on TV come to expect that. [But] I’d give him very high marks for preparation, for knowledge of the case . . . Obviously, he’s very comfortable in a courtroom.” Attorney Joseph Steinfield, who is representing Channel 25 in the ISB case, also says “I have great respect for his skills as an advocate.”
Ted Merritt, an assistant US attorney who’s known Cooper since he was his camp counselor nearly four decades ago, gets back to the true-believer idea that some say is the core of Cooper’s career.
“What comes through from him a lot is his passion,” says Merritt. “He’s able to sincerely believe his client or his case is the right thing. Howard’s the kind of lawyer I would turn to if I wanted my case prosecuted and advanced.”

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Berkman Center for Internet & Society

Harvard University - Berkman Center for Internet & Society

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Boston Herald Ordered to Pay Judge $2.1M in Libel Case

By Lay Lindsay
A jury Friday ordered the Boston Herald to pay $2.1 million for libeling a Superior Court judge, saying it misquoted him as telling lawyers that a 14-year-old rape victim should "get over it."
In a case closely watched by the media and legal communities, a jury deliberated for more than 20 hours over five days before finding that the newspaper and reporter David Wedge libeled Superior Court Judge Ernest B. Murphy in articles that portrayed him as lenient toward defendants. Another reporter, Jules Crittenden, was cleared.
Murphy claimed Wedge misquoted him as telling lawyers involved in the case about the teenage rape victim: "Tell her to get over it."
The quote was included in a February 2002 series of Herald articles that said Murphy had been criticized by prosecutors for lenient sentences, including eight years' probation for a 17-year-old convicted of two rapes and an armed robbery.
Murphy, 61, sued the Herald and its writers, claiming his comments about the 14-year-old, made in a closed-door meeting with lawyers, were misquoted and taken out of context. The newspaper stood by its reporting.
"I'm feeling obviously very elated and very gratified about what's happened so far," Murphy said as he left court after the verdict was read. Later, Murphy said he hoped the verdict would be a warning to journalists around the country.
Patrick J. Purcell, the newspaper's president and publisher, issued a statement thanking the jury "for their diligence on this very complicated case" but added, "We have complete faith in our reporter David Wedge, and we are confident this decision will be reversed on appeal."
"We believe the First Amendment allows news organizations to provide uninhibited coverage of government and public figures, and we will continue to cover them vigorously," Purcell said.
The Herald's articles were picked up by media outlets across the country and Murphy was excoriated on talk radio shows. He became known as "Easy Ernie" and "Evil Ernie."
He was bombarded with hate mail, death threats and calls for his removal from the bench. In an Internet chat room, someone suggested that Murphy's own teenage daughters should be raped.
Two of Murphy's daughters were so frightened, they went to live with family members and friends. Murphy said he went out and bought a .357-caliber Magnum.
"I was afraid that someone was going to shoot me," he testified.
Citing more than a dozen articles, he accused the newspaper of waging a "malicious and relentless campaign" that destroyed his personal and professional reputation. His lawyer, Howard M. Cooper, accused Wedge of shoddy reporting and fabricating a sensational story to sell papers.
"Mr. Wedge and his editors at the Herald disregarded the truth that was staring them in the face," Cooper said in his closing argument.
Cooper said Murphy had actually expressed concern for the teenage rape victim and asked court personnel and the defendant's lawyer about making counseling available to her.
Murphy also denied that he derided a 79-year-old robbery victim in another case, saying his quote, "I don't care if she's 109," was "ripped from context" when the Herald published it. Murphy said he meant that the age of the victim didn't matter, but the jury did not issue a verdict on that part of the case.
Murphy also had sued a Herald columnist and another reporter, but they were cleared before the case went to the jury.
Because Murphy is a public figure, his lawyer had to convince the jury that the Herald knew it was reporting false information, or acted with a reckless disregard for the truth -- a higher standard than the requirement a nonpublic figure must meet to win a libel case.
The case was unusual because Murphy's lawyers used not only the Herald articles, but also comments that Wedge made on a national television to try to prove his "malicious state of mind."
Wedge, the lead reporter on the story, appeared on Fox's "The O'Reilly Factor" about three weeks after his first story ran in the Herald, a tabloid with a weekly circulation of over 300,000.
When host Bill O'Reilly asked Wedge if he was sure Murphy said that the rape victim should "get over it," Wedge replied, "Yes. He made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it."
Wedge, however, later said in a deposition that only one of the lawyers heard the comment firsthand and the other two just repeated it to Wedge. The prosecutor who claims to have heard the comment, David Crowley, said in his deposition that he recalled Murphy saying the words "get over it," but couldn't remember the judge's exact quote.
Murphy has not revealed what he actually said to attorneys, but Cooper said that if the quote was, "She's got to get over it," that would have shown he felt compassion toward the girl.
Wedge testified during the trial that he was certain the quote attributed to Murphy was correct. He testified he never spoke with Murphy before the story ran, but said he tried to contact the judge to verify the accuracy of the remark and was turned away.
"David Wedge thoroughly investigated Judge Murphy," Herald lawyer M. Robert Dushman said during the trial. "He had reliable sources. Mr. Wedge had absolutely no doubt about the truth."
Dushman acknowledged "minor errors" in some of Wedge's reporting, but said he did a solid job overall.

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Berkman Center for Internet & Society

Harvard University - Berkman Center for Internet & Society

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Howard M. Cooper

THE CADLE COMPANY vs. JAN R. SCHLICHTMANN & another.(1)

DOCKET SJC-09790.
Dates: December 4, 2006. - January 17, 2007.
Present Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
County Essex.
KEYWORDS "Anti-SLAPP" Statute. Constitutional Law, Right to petition government. Statute, Construction.

Civil action commenced in the Superior Court Department on April 12, 2005.

Special motions to dismiss were heard by Elizabeth M. Fahey, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Rodney A. Smolla, of Virginia (Edward J. Juel with him) for the defendants.

Howard M. Cooper (Ian Crawford with him) for the plaintiff.
 

GREANEY, J. We examine in this case the extent to which G. L. c. 231, § 59H, popularly known as the "anti-SLAPP"(2) statute, effectively shields one party in an ongoing legal dispute from liability for the publication of allegedly defamatory statements concerning the opposing party. The Cadle Company (Cadle) filed a multi-count complaint in the Superior court seeking damages and declaratory and injunctive relief against Jan R. Schlichtmann and Jan R. Schlichtmann, Attorney At Law, P.C. (defendants), arising out of Schlichtmann's use of a Web site and interviews with the media to make allegedly false and defamatory statements concerning Cadle. The defendants filed in response two special motions to dismiss pursuant to G. L. c. 231, § 59H, which were denied by a judge in the Superior Court. The defendants appealed from that denial, and we transferred the case here from the Appeals Court on our own motion. For reasons that follow, we conclude that the judge properly denied the special motions to dismiss. Consequently, we affirm the order denying the motions and remand the case to the Superior Court for further proceedings.

1. The background of the case, drawn from the judge's decision and order denying the special motions to dismiss, may be summarized as follows. Cadle is a debt collection company with its main office in Newton Falls, Ohio. The individual defendant, Schlichtmann, is an attorney licensed to practice law in Massachusetts and, as has been noted, the president and sole shareholder and director of the defendant professional corporation. In the mid-1990's, Cadle and Schlichtmann became involved in litigation in connection with certain debts allegedly owed Cadle by Schlichtmann. In the early 1990's, Schlichtmann and his former law firm borrowed money from Boston Trade Bank. After the Boston Trade Bank failed, Cadle purchased Schlichtmann's debts from the Federal Deposit Insurance Corporation (FDIC). In October, 1991, Schlichtmann filed a petition under Chapter 7 of the Bankruptcy Code, see 11 U.S.C. § 301 (1988), and, in January, 1992, the Bankruptcy Court issued a discharge of debtor to Schlichtmann. Years of litigation followed over whether certain of Schlichtmann's debts had survived the discharge. Although litigation is always divisive and often contentious, the legal battles between the parties appear to have been particularly acrimonious.(3)

In the spring of 2003, Schlichtmann filed complaints with the Commissioner of Banks on behalf of himself and various clients concerning the collection activities of Cadle. On March 31, 2003, Schlichtmann sent Cadle a G. L. c. 93A demand letter on behalf of four clients who, the letter alleged, had suffered losses as a result of Cadle's fraudulent business practices in Massachusetts. Schlichtmann began speaking out to members of the news media concerning Cadle, and he was quoted in articles published by the Boston Herald, the Business Journal Online, the Associated Press,(4) and the MetroWest Daily News. Statements in the articles attributed to Schlichtmann include the following:

"According to attorney Jan Schlichtmann, who is also being dunned by Cadle, the firm has been doing business illegally in Massachusetts for years, hiding its assets from its clients and the state and defrauding both";

"Schlichtmann says threats and harassment are typical of Cadle";

"Schlichtmann says Cadle has used these same strong arm tactics here to collect millions from people in debt while avoiding paying taxes by hiding its assets in other companies owned by [Daniel C. Cadle, owner and president of Cadle]";

"The Cadle Co. traffics in intimidation and fraud and it's catching up with them in Massachusetts";

"According to Schlichtmann, the sole purpose of this enterprise is to defraud consumers and businesses, deceive state and federal courts, and avoid state laws and regulations meant to protect against predatory practices";

"[Schlichtmann] says Cadle, 'surreptitiously' transferred loan accounts to separate corporations and partnerships set up by Daniel Cadle to circumvent state laws governing collection agencies. Cadle used 'strong arm tactics' including threats, intimidation and coercion to collect, Schlichtmann claims";

"[Cadle had] used hardball tactics to try to collect debts, harassing and abusing people by making false reports to ruin their credit, calling their neighbors, talking to children about their parents' debts, threatening to take people's homes, and taking people to court"; and
 

"'[Cadle] has been illegally going after hundreds of people -- vulnerable people, in particular -- for years,' [Schlichtmann] said. 'All of the tricks of the trade this company uses in spades. All of it is illegal and all of it is fraudulent.'"(5)

Also in the spring of 2003, Schlichtmann created a Web site, accessible on the Internet. Included on the Web site are statements representing Cadle as a company that employs "fraudulent practices to intimidate and collect millions of dollars from hundreds of [Massachusetts] residents." According to the Web site, Cadle is "a collection arm of a fraudulent enterprise" whose "sole purpose and intent . . . is to defraud consumers and businesses, deceive state and federal courts, and avoid state laws and regulations meant to protect against predatory practices." The Web site provides links to news articles published by various news media outlets containing Schlichtmann's statements that are quoted above. Links provided on the Web site also connect a viewer to the above mentioned March, 2003, G. L. c. 93A demand letter and to court pleadings and other documents submitted to the court in connection with various legal proceedings. The following statements also appear on the Web site:

"This site was created and sponsored by Jan R. Schlichtmann, Attorney At Law, P.C., as a service advertising this effort. Attorney Schlichtmann has been fighting The Cadle Company for the past [ten] years. . . . Attorney Schlichtmann now represents several other victims of Cadle's unlawful business practices."

The Web site further states:

"Call 877.CADLETRUTH

(1.877.223.5387)";

"To find out more or if you believe you have been victimized by The Cadle Company, contact us directly: 877.CADLETRUTH (1.877.223.5387)."(6)

On January 15, 2004, Daniel Cadle wrote Schlichtmann a letter advising him that information on the Web site was false and defamatory and requesting that Schlichtmann correct any "exaggerations, false statements, and plain old 'bold face lies' in order to mitigate [his] damages."(7) Schlichtmann took no action in response to that letter. It appears that all of the information discussed above remains accessible to the public online as of the time of oral argument.
 

The events described above led to the present litigation, which we now summarize. On April 12, 2005, Cadle filed a complaint in the Superior Court asserting claims against the defendants. Cadle's first amended complaint alleges defamation and libel (count I); tortious interference with contractual and advantageous business relations (count II); unfair and deceptive trade practices in violation of G. L. c. 93A, § 11 (count III), and seeks a declaratory judgment on the defamation claim (count IV) and a permanent injunction enjoining the defendants from maintaining the Web site in its present form (count V). The defendants accepted service of the complaint on May 6, and, as has been stated, filed a special motion to dismiss pursuant to G. L. c. 231, § 59H.(8) As grounds for the motion, the defendants asserted that Cadle's complaint had been filed in retaliation for Schlichtmann's exercise of his right to petition the government for redress regarding Cadle's business practices. A hearing was held, at which Schlichtmann requested the judge to stay the proceedings pending a ruling on a motion seeking sanctions against Cadle, which Schlichtmann had filed in the United States Bankruptcy Court for the District of Massachusetts. The judge denied the request but allowed Schlichtmann leave to file a motion for reconsideration. After the hearing, but before the judge entered her decision on the special motion, the defendants filed a second special motion to dismiss under the anti-SLAPP statute or, alternatively, to stay the matter pending the ruling of the Bankruptcy Court judge on Schlichtmann's sanction motion.(9) On September 20, 2005, the judge denied both special motions.(10)

2. We now consider the merits of this appeal.

General Laws c. 231, § 59H, provides, in pertinent part:

"In any case in which a party asserts that the civil claims . . . against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the [C]ommonwealth, said party may bring a special motion to dismiss. . . . The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based."

The statute identifies five types of statements that comprise "a party's exercise of its right of petition:"

"[1] [A]ny written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; [3] any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; or [5] any other statement falling within constitutional protection of the right to petition government." G. L. c. 231, § 59H.

We have stated that the right to petition may include "reporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts and demonstrations." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-162 (1998), quoting Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 5 (1989). A SLAPP suit, as a general rule, has no merit. "The objective of SLAPP suits is not to win them, but to use litigation to intimidate opponents' exercise of rights of petitioning and speech" and "to deter common citizens from exercising their political or legal rights or to punish them for doing so." Duracraft Corp. v. Holmes Prods. Corp., supra at 161, quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-817 (1994). It is not necessary that the petitioning activity be motivated by a matter of public concern. See Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002).

The procedure governing an anti-SLAPP motion to dismiss is well established. We recognized in our Duracraft decision that, "[b]y protecting one party's exercise of its right of petition . . . the statute impinges on the adverse party's exercise of its right to petition . . . ." Duracraft Corp. v. Holmes Prods. Corp., supra at 166. We require, therefore, as a threshold matter to invoke the statute's protection, that the party seeking dismissal demonstrate, through pleadings and affidavits, that the claims against it are "'based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Id. at 167-168. At this early stage of the proceedings, "[t]he focus solely is on the conduct complained of, and, if the only conduct complained of is petitioning activity, then there can be no other 'substantial basis' for the claim." Office One, Inc. v. Lopez, supra at 122. If the moving party fails to make this showing, the special motion is denied. If this showing is made, then the burden shifts to the nonmoving party to demonstrate, again by pleadings and affidavits, that "(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party." G. L. c. 231, § 59H. See Fabre v. Walton, 436 Mass. 517, 520 (2002); Baker v. Parsons, 434 Mass. 543, 552 (2001); McLarnon v. Jokisch, 431 Mass. 343, 349 (2000). In this way, the legislative purpose behind the statute, to protect parties from harassing lawsuits that have no basis in law and that are filed solely to discourage individuals from exercising their right to petition, is furthered. See Duracraft Corp. v. Holmes Prods. Corp., supra at 166-167. At the same time, the rights of opposing parties, to petition the courts for redress of wrongs unlawfully inflicted by another, are protected. See Baker v. Parsons, supra at 553.

Applying these principles here, we conclude, as did the judge, that the defendants have not met their initial burden of demonstrating that "the only conduct complained of is . . . petitioning activity." Fabre v. Walton, supra at 524. The judge determined, as a factual matter, that Schlichtmann had set up the Web site for commercial reasons, as an informational center that would "direct[] people to his own legal practice to attract business." The judge concluded, therefore, that Cadle's complaint could not be deemed to be based solely and exclusively on the defendants' petitioning activity. We review the judge's decision to determine whether there was an abuse of discretion or error of law. See Kobrin v. Gastfriend, 443 Mass. 327, 330-331 (2005). There was no error.

An examination of the plaintiff's amended complaint reveals that Counts I, II, and III are based, respectively, on statements contained on the Web site as well as statements made by Schlichtmann to the media that were then republished on the Web site, through electronic links to other Web sites containing the original news articles. Many of the statements, standing alone, had been made in connection with Schlichtmann's petitions to the banking commissioner or complaints to the Bankruptcy or State courts, and republished on the Web site in order to raise public concern over Cadle's (purportedly) questionable business practices. These statements, at first glance, may appear to fall within the literal scope of activities protected by § 59H, because they were "made in connection with an issue under consideration or review by a legislative, executive, or judicial body" or are "reasonably likely to enlist public participation in an effort to effect such consideration." Schlichtmann published the statements on his Web site, however, not as a member of the public who had been injured by these alleged practices, but as an attorney advertising his legal services. The Web site was, in essence, designed by Schlichtmann to disseminate to the public information about Cadle and, by doing so, to attract clients to his law practice.

We reject the defendants' self-serving characterization of the Web site as a "public forum" that is "dedicated to sharing with others information about Cadle's business activities that [Schlichtmann] and other victims have provided to regulatory officials and the courts and the actions taken by such officials and courts." Schlichtmann argues that he set up the Web site to inform others of what he alleged were the unlawful collection activities of Cadle and, in an affidavit submitted in connection with his second special motion to dismiss, flatly denies that his Web site was designed to attract clients to his law practice. Schlichtmann cannot dispute, however, that he represents parties adverse to Cadle in litigation and that his Web site, in unambiguous terms, appeals to other potential clients to contact him. There is nothing in the record to refute (at this point) the reasonable conclusion that Schlichtmann created the Web site, at least in part, to generate more litigation to profit himself and his law firm.

The defendants rely heavily on three decisions of the Appeals Court, Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005), Plante v. Wylie, 63 Mass. App. Ct. 151 (2005), and MacDonald v. Paton, 57 Mass. App. Ct. 290 (2003). We address these cases in turn. The defendant in Wynne v. Creigle, supra, was a fire fighter's widow who sought pension benefits after her husband committed suicide. The defendant maintained, in statements made in connection with a department investigation of the plaintiff's workplace conduct and repeated to a newspaper reporter, that her husband's suicide was precipitated by harassment by the plaintiff. The plaintiff, in turn, sued for defamation, based on the newspaper's accounts of the statements. The Appeals Court recognized that the defendant's statements to the newspaper were not unsolicited but were made in direct response to the "plaintiff's providing the newspaper with the statements of the firefighters, [and] other documents from the [disciplinary] hearing" and were "essentially mirror images of those [the defendant] made during and 'in connection with' the departmental investigation of the plaintiff. Taken in context, [the] mere repetition of those statements to the media was also possessed of the characteristics of petitioning activity." Id. at 254. Here, nothing in the record would support a finding that the challenged statements made by Schlichtmann were either a response to statements that Cadle had made to the press or repetitions of statements initially made in a governmental proceeding. The fact that the news articles containing Schlichtmann's statements also refer to various ongoing administrative or judicial proceedings against Cadle does not, by itself, suffice to render the statements themselves petitioning activity protected under G. L. c. 231, § 59H. The Wynne decision, therefore, does not assist the defendants.

In Plante v. Wylie, 63 Mass. App. Ct. 151 (2005), the trustees of a realty trust filed a lawsuit against the attorney who challenged, on behalf of a conservation trust, efforts of the realty trust to win approval for expansion of a subdivision development. See id. at 153-154. The Appeals Court reasoned that, although the anti-SLAPP statute is restricted by its language "to those defendants who petition the government on their own behalf," id. at 156, quoting Kobrin v. Gastfriend, supra at 332, the "statute would provide but hollow protection for citizens who wish to exercise their right of petition if statements made by an attorney on their behalf were not covered by the [statute] to the same extent as statements made by them directly." Id. We agree with the Appeals Court that suits brought against attorneys who speak on behalf of petitioning parties would have a chilling effect on petitioning activity, and, therefore, the language of G. L. c. 231, § 59H, must be read to protect, not only individuals who petition on behalf of themselves but also attorneys who are sued for "voicing the positions of a petitioning client." Id. at 157. See note 10, supra. Our decision in this case, however, does not turn on whether Schlichtmann's statements were made on behalf of himself or on behalf of the clients he represented in the litigation against Cadle. As has been discussed above, it is the palpable commercial motivation behind the creation of the Web site that so definitively undercuts the petitioning character of the statements contained therein.

Finally, in MacDonald v. Paton, supra, the plaintiff, an elected selectman in Athol, sued the defendant, who operated a Web site that reported on local affairs in Athol and the surrounding community, for publishing on the Web site a description of the plaintiff as a "Gestapo agent." Id. at 293. It was undisputed that the Web site was an "interactive public forum on issues relating to Athol town governance, including education funding and municipal use of tax dollars." Id. at 294. Information on the Web site included a section containing citizens' letters, a link allowing individuals to send, by electronic mail, comments and opinions, and an interactive feature, called "The First Dictionary of Athonics," whereby individuals could suggest, also by means of electronic mail, dictionary definitions. The plaintiff's suit was over one such suggested dictionary entry. The Appeals Court reasoned that the defendant had conclusively demonstrated, in her affidavit submitted in support of her special motion to dismiss, that her Web site had been conceived "as a forum for speech by citizens about issues of public and political concern . . . [and] as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community." Id. at 295. The Appeals Court concluded, therefore, that it was error to deny the defendant's special motion to dismiss pursuant to G. L. c. 231, § 59H. As has been much discussed, however, the Web site in this case (unlike the Web site in MacDonald) is of a commercial nature. It is interactive only in the sense that visitors to the Web site might click on a link to contact Schlichtmann. Visitors may not, however, post individual opinions or comments -- all of the information that is posted on the Web site originated with Schlichtmann. The Appeals Court's reasoning in the MacDonald case, thus, like the reasoning in the Wynne and Plante cases, is inapplicable to this case.

There is one recent Appeals Court decision that is, in our view, sufficiently on point to provide guidance in this case. That decision, Global NAPs, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600 (2005), concerned a statement made in the context of ongoing litigation between two business competitors and published in the Boston Globe, asserting, in effect, that the Department of Telecommunications and Energy had "shut down 'a scam' . . . [the plaintiff] very cleverly developed in the late 1990s." Id. at 603. The Appeals Court rejected the defendant's argument that a literal reading of G. L. c. 231, § 59H, protects all statements made "in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding." Id. at 604. We agree with the Appeals Court's conclusion, "[t]hat a statement concerns a topic that has attracted governmental attention, in itself, does not give that statement the [petitioning] character contemplated by the statute." Id. at 605. See Kobrin v. Gastfriend, supra at 332 ("[T]he statute is designed to protect overtures to the government by parties petitioning in their status as citizens. It is not intended to apply to those performing services for the government as contractors"). Without passing judgment on the merits of the underlying claims in this lawsuit, we conclude that an attorney may not claim protection of the anti-SLAPP statute for publishing statements about an adversary at will, in hopes of shoring up his or her own position, attracting potential clients, or otherwise gaining a tactical advantage in an ongoing legal proceeding, even when that proceeding has, as here, attracted a good deal of public and governmental interest. Put more simply, aggressive lawyering of this sort is not protected petitioning activity.

Because the defendants did not make a "threshold showing through the pleadings and affidavits that the claims against [them] are 'based on' the [lawful] petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities," Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998), the motion to dismiss was properly denied.(11)

4. We affirm the judge's order denying the defendants' motions to dismiss the complaint against them and remand the case to the Superior Court for further proceedings consistent with this opinion.

So ordered.

Footnotes

(1) 1 Jan R. Schlichtmann, Attorney at Law, P.C., a professional corporation of which Jan R. Schlichtmann is the president and sole shareholder and director.

(2) 2 SLAPP is an acronym for "strategic litigation against public participation."

(3) The United States Court of Appeals for the First Circuit eventually concluded that Cadle had an interest in a monetary settlement received by Schlichtmann and his former law firm, see Cadle Co. v. Schlichtmann, 267 F.3d 14 (1st Cir. 2001), cert. denied, 535 U.S. 1018 (2002). After Schlichtmann purchased all claims belonging to Cadle against him at a sheriff's auction in Texas, the case was dismissed by a judge in the District Court of Massachusetts on the basis of mootness. On Cadle's appeal, the First Circuit affirmed the dismissal, holding that Cadle's previous representations to the court estopped it from asserting a continuing interest in the debt as an agent of a related company called Atlanta Joint Venture. See Cadle Co. v. Schlichtmann, Conway, Crowley & Hugo, 338 F.3d 19, 22-23 (1st Cir. 2003).

(4) Relevant news articles published by the Associated Press were picked up by media outlets throughout the country, including The Boston Globe.

(5) In October, 2003, Cadle filed a complaint against the defendants in the United States District Court for the Northern District of Ohio, alleging defamation. This suit was dismissed for lack of personal jurisdiction.

(6) The telephone number listed on the Web site is operated solely by Schlichtmann.

(7) In his letter, Cadle took specific exception to four statements on the Web site, enumerated as follows:

"1. Daniel C. Cadle is a fugitive from justice. As you full well know, I am not a fugitive from justice;

"2. Daniel C. Cadle has been convicted of contempt. As you also know, I have not been legally convicted of contempt;

"3. The Commonwealth of Massachusetts ordered The Cadle Company to cease all activities in the Commonwealth of Massachusetts. As you know, the Commonwealth simply ordered Cadle to cease all 'illegal' activities in the Commonwealth, if any, and has never made any determination that Cadle has committed 'any' illegal acts; and

"4. Schlichtmann has filed lawsuits on behalf of clients against Cadle. As you know, no such lawsuits have, in fact, been filed against Cadle."

(8) The motion to dismiss also was brought pursuant to Mass. R. Civ. P. 12 (b) (6) and (9), 365 Mass. 754 (1974). Schlichtmann does not argue that dismissal was warranted on these bases and, thus, waives any claim to that effect.

(9) This second motion, apparently, was brought in response to testimony given by Cadle's counsel at an evidentiary hearing on Schlichtmann's motion for sanctions in the Bankruptcy Court. At the hearing, Daniel C. Cadle testified that the defamation suit had been initiated in an attempt to have Schlichtmann remove (or at least modify) his Web site.

(10) Thereafter, Schlichtmann filed a counterclaim against Cadle and took the highly unusual step of filing a third-party complaint against Cadle's counsel. The basis for the third-party complaint is not clear from the record, but we note our approval of the recent decision of Plante v. Wylie, 63 Mass. App. Ct. 151 (2005), in which the Appeals Court held, as a general principle, that G. L. c. 231, § 59H, protects attorneys who are "sued for voicing the positions of a petitioning client." Id. at 157.

(11) We need not consider the alternate claim advanced by Cadle that the alleged defamatory statements, even if within the scope of petitioning activity, are not deserving of the protection of § 59H because they are devoid of factual or legal basis. See McDonald v. Smith, 472 U.S. 479, 485 (1985) (right to petition is not shield against liability for libel); Kobrin v. Gastfriend, 443 Mass. 327, 335 (2005).

 

 

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