DURACRAFT CORPORATION vs. HOLMES PRODUCTS CORPORATION & another. [Note 1]

GILLERMAN, J. A judge of the Superior Court denied the defendants' special motion to dismiss under G. L. c. 231, s. 59H, added by St. 1994, c. 283, s. 1, commonly referred to

Page 573

as the anti-SLAPP [Note 2] statute (statute), the material provisions of Which we set out in the margin. [Note 3] Thereafter, a single justice of this court granted leave to appeal the judge's ruling to a full panel of this court. The appeal raises, for the first time, issues regarding the scope and application of the statute. [Note 4] Certain material facts that provide the background for this controversy are undisputed. From 1987 to July, 1990, the defendant Marino was employed as an engineer for the defendant Holmes Products Corporation (Holmes). In July, 1990, Marino left Holmes to work for the plaintiff Duracraft Corporation (Duracraft), where he was employed until August, 1994. From August, 1994, to 1995, Marino was employed by a third company, Accutek. In December, 1995, Marino returned to Holmes, where he is currently employed.

Page 574

Shortly after joining Duracraft in 1990, Marino entered into a "Nondisclosure and Non-Competition Agreement" (Agreement) in which he agreed not to disclose any confidential information to third parties. The Agreement also contained a provision stating that Marino is not precluded from disclosing confidential information "upon the lawful demand of any governmental agency (including court process)." Upon such a lawful demand, Duracraft was to have the opportunity to review and comment on the confidential information sought, and to discuss with Mr. Marino and the agency the scope and content of the requested information.

In 1992, while Marino was working for Duracraft, Holmes commenced an opposition proceeding against Duracraft before the Federal Trademark Trial and Appeal Board (TTAB), alleging that Duracraft had improperly registered the word "turbo" as a trademark. In November, 1995, Holmes noticed Marino's deposition in the TTAB proceeding. Marino was then working for Accutek. The deposition was postponed, re-noticed in January of 1996, and taken on February 7, 1996, by which time Marino was again employed by Holmes. Present at the deposition were four attorneys for Holmes, two attorneys for Duracraft, and Marino.

Duracraft, in an unverified complaint filed in March, 1996, alleges that during Marino's deposition, counsel for Holmes elicited, and Marino disclosed, confidential information concerning the "turbo" trademark litigation and related intellectual property matters. Duracraft also alleges that Marino met with attorneys for Holmes prior to the deposition and offered to provide such deposition testimony. The claims against Marino and Holmes are for breach of contract, breach of fiduciary duty, intentional interference with contractual relations, misappropriation of trade secrets, unfair competition, and unfair and deceptive acts and practices. Holmes and Marino then moved to dismiss these claims under the statute.

The judge, relying on what she reasonably perceived to be the objective of anti-SLAPP statutes enacted in other jurisdictions, viz., "to protect citizens from lawsuits designed to silence their opposition concerning a matter of public concern," as well as the public reports of House floor debates, ruled that the mischief the statute was designed to remedy were "incidents involving citizens sued for speaking out on issues of public concern" (emphasis in original). Applying that standard, the judge found that Marino's testimony during his deposition was not protected by the statute because a

Page 575

trademark dispute is not a matter of public concern. Although acknowledging that "[o]n its face, the language of the statute would appear broad enough to apply here," the judge held that the statute was not applicable to this case. To construe the statute as being applicable would, the judge wrote, "substantially alter procedural and substantive law," which a judge should not do "[a]bsent a clear legislative intent to abrogate the existing law." The judge denied the special motion.

1. Matters of public concern. We look first to the words of the statute to determine whether, as Duracraft argues, the statute is confined to claims against persons exercising their right of petition in a matter of public concern. "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the court is to enforce it according to its terms." Massachusetts Community College Council v. Labor Relations Commn., 402 Mass. 352, 354 (1988). See also Singer, Sutherland Statutory Construction s. 46.01, at 81 (5th ed. 1992), quoting from Caminetti v. United States, 242 U.S. 470, 485 (1917).

The statute grants to any party against whom a claim is brought by reason of that party's exercise of his "right of petition under the constitution of the United States or of the commonwealth," the right to file a special motion to dismiss the claim. [Note 5] The "right of petition" referred to in the statute is the right protected by the First Amendment to the Constitution of the United States ("Congress shall make no law . . . abridging the . . . right of the people . . . to petition the Government for a redress of grievances"), [Note 6] and by the Declaration of Rights. [Note 7]

Page 576

The statute makes explicit that the protected right of petition extends to five kinds of statements. See note 3, supra. Statements [1], [2] and [3] do not necessarily involve issues of public concern or public participation in the consideration of an issue. Statement [4] does contemplate public participation designed to affect the consideration of an issue. Statement [5] is a catch-all which brings in any statement not previously mentioned and which falls within the constitutional protection of the right of petition. [Note 8] Nowhere does the statute state that the special motion to dismiss is available only where the covered statements are those involving issues of public concern. [Note 9]

The focus of Duracraft's argument is that, aside from the

Page 577

words of the statute, the purpose of the statute is self-evident. Like similar statutes elsewhere, the Duracraft argument runs, the Massachusetts statute is intended only to protect people who speak out on matters of public concern.

It is true that similar statutes passed elsewhere reveal a general legislative purpose to protect activity designed to affect or influence governmental action regarding issues arguably of public concern or significance. [Note 10] And it is at least arguable that the controversy in this case does not involve speaking out, or taking any other action, regarding an issue of public concern or significance. Yet the principal point remains: the Massachusetts statute is silent as to any requirement that the action to be protected must, to qualify for that protection, involve an issue of public concern.

Page 578

Duracraft's argument overlooks the fact that the Massachusetts statute is fundamentally different from the anti-SLAPP statutes passed in other jurisdictions; that is to say, the legislative history of the Massachusetts statute reveals an intentional omission of any requirement that the defendant's conduct arise in connection with an issue of public concern. See Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, 14 Mass. App. Ct. 76, 81 (1982) (legislative history may decide disputes regarding the interpretation of a statute). [Note 11]

The bill was originally introduced on January 7, 1993, as House No. 3033. It was captioned, "An Act Limiting Strategic Litigation Against Public Participation." Section I of the bill inserted s. 59H, the first sentence of which reads as follows: "In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party's lawful exercise of its right of petition or of free speech under the constitution of the United States or of the commonwealth [sic] in connection with a matter of public concern, said party may bring a special motion to dismiss" (emphasis added).

On December 7, 1993, the House changed the title of the bill to read, "An Act Protecting the Public's Right to Petition Government." On December 21, 1993, the bill was amended in the Senate by striking from the first paragraph of s. 59H (following a reference to a party's "lawful exercise of its right of petition") the phrase "in connection with a matter of public concern," and by striking from the definition of "a party's exercise of its right of petition or of free speech," the phrase "or any written or oral statement made in connection with an issue of public concern." [Note 12] See Journal of the Senate, Tuesday, December 21, 1993.

On December 30, 1993, the House approved the amendments adopted in the Senate. The bill as amended was passed by both chambers on January 3, 1994. The Governor vetoed the legislation on January 14, 1994. House No. 3033, as

Page 579

amended in the Senate, was reintroduced as House No. 1520 [Note 13] and eventually passed, over a second veto by the Governor, in December of 1994. See Legislative Record, 85H-86H (1994).

Given the legislative history just recited, there is no basis for this court to reinsert the rejected condition that the moving party's activity must involve a matter of public concern. Singer, Sutherland Statutory Construction s. 47.38, at 290-291 (5th ed. 1992). King v. Viscoloid Co., 219 Mass. 420, 425 (1914) ("we have no right to . . . read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose"). Bronstein v. Prudential Ins. Co., 390 Mass. 701, 706 (1984) (reiterating the language just quoted from King). Callahan v. A.J. Welch Equip. Corp., 36 Mass. App. Ct. 608, 611-612 (1994). Compare Cranberry Realty & Mortgage Co. v. Ackerley Communications, 17 Mass. App. Ct. 255, 257 (1983). We conclude that the statute imposes no condition that the defendants' statements involve issues of public concern. [Note 14] See Bratcher v. Galusha, 417 Mass. 28, 30-31 (1994) (we may not "rewrite or ignore the plain language of the stat-

Page 580

ute. [We also may not] intrude on the Legislature's function or . . . disregard the plain meaning of the statute").

It does not follow, however, that the defendants must prevail on their special motion to dismiss. [Note 15]

2. The immunity issue. Following arguments in this case, we asked the parties to file supplementary briefs on the question set out in the margin. [Note 16] In response, Holmes and Marino argue that the statute created a qualified immunity from all "civil claims, counterclaims and cross-claims" based on their exercise of their right of petition. [Note 17] The qualification is that Duracraft may defeat the immunity by demonstrating, in its pleadings, affidavits and discovery specially permitted by the judge, see s. 59H, par. third, that the defendants' claimed exercise of the right of petition is "devoid of any reasonable factual support or any arguable basis in law," and that the exercise caused the plaintiff actual injury. The defendants state accurately that Duracraft made no such showing in the Superior Court. [Note 18] The result, say the defendants, is that Duracraft's claims are merely "civil claims" barred by operation of

Page 581

s. 59H, and their special motion to dismiss should have been allowed. We do not agree.

If we take the language of the statute literally, it might be said that the legislative intention was to immunize non-sham petitioning activity [Note 19] from all claims based on such activities. See note 5, supra. Such a construction would create grave constitutional problems where, as here, the plaintiffs action asserts a legitimate, cognizable claim based on a pre-existing contract between the parties. See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 663 (1997) ("It is fundamental that issues of statutory interpretation should be resolved prior to reaching any constitutional issue"). The plaintiff, after all, is simply exercising its right of petition. Bill Johnson's Restaurants, Inc. v. National Labor Relations Bd., 461 U.S. at 744-747, while not entirely congruent with this case, is nevertheless instructive. In that case, as we describe in note 9, supra, the defendant commenced a State court action in response to allegedly unlawful union activity. The National Labor Relations Board (Board), finding the action an unfair labor practice, ordered the defendant to withdraw the action, and the Court of Appeals enforced the Board's order. The Supreme Court reversed the judgment of the Court of Appeals and remanded the case to the Board for further proceedings. The Court reasoned, see id. at 745-746, that if there is a genuine issue of material fact in the state court action, the action cannot be enjoined by the Board. "When a suit presents genuine factual issues, the state plaintiff's First Amendment interest in petitioning the state court for redress of his grievance . . . lead[s] us to construe the [National Labor Relations] Act as not permitting the Board to usurp the traditional fact-finding function of the state-court jury or judge. Hence we conclude that if a state plaintiff is able to present to the Board with evidence that shows his lawsuit raises genuine issues of material fact, the Board should proceed no further . . . until the state-court suit has been concluded." Ibid.

Similarly, we conclude that s. 59H must be construed to recognize Duracraft's First Amendment right of petition by

Page 582

permitting it to litigate its claims based on its non-disclosure agreement with Marino. [Note 20] Stated differently, s. 59H cannot be constitutionally construed to mean that non-sham petitioning activities immunizes the defendant from all Federal and State statutory and common law causes of action based on the defendant's petitioning activities. [Note 21] What is at issue here is the individualized petitioning right of Duracraft to seek enforcement of an alleged violation of its pre-existing agreement with Marino. While this area of the law is far from settled, we have found no case, and none has been brought to our attention, holding that a defendant's non-sham petitioning activity is immunized from a plaintiffs petitioning right to seek enforcement of alleged violations of a valid pre-existing contract between the parties. Compare Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995), where the Court of Appeals was faced with a similar problem: the conflict between the right of petition and a common law tort. The court concluded, "We see no reason to believe that the right of petition includes a right to file deliberately false complaints." Id. at 1254. See Florida Fern Growers Assn., Inc. v. Concerned Citizens of Putnam County, Inc. 616 So. 2d 562, 570 (Flat 1993) (petitioning activities do not provide immunity from claims of malicious interference with advantageous relationship). But see Video Intl. Prod. Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988) (the Noerr-Pennington doctrine has been "expanded . . . to protect first amendment petitioning of the government from claims brought under federal and state laws, including section 1983 and common-

Page 583

law tortious interference with contractual relations"); Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 102 (2d Cir. 1983) (non-sham petitioning activities immunized defendants from alleged violations of State statute regulating unfair trade practices and common law claims of tortious interference with a business expectancy); Webb v. Fury, 167 W.Va. 434, 448 (1981) (the Noerr-Pennington doctrine "bars litigation arising from injuries received as a consequence of First Amendment petitioning activity, regardless of the underlying cause of action asserted by the plaintiffs"). [Note 22]

To sum up, s. 59H, although not limited to matters of public concern, must be construed, for constitutional reasons, not to preclude Duracraft's action alleging a violation of its preexisting agreement of confidentiality.

Accordingly, we affirm the judge's denial of the defendants' special motion to dismiss. [Note 23]

So ordered.