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SJC-12082

        CARDNO CHEMRISK, LLC    vs.   CHERRI FOYTLIN & another.1



         Suffolk.       October 7, 2016. - February 14, 2017.

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


   "Anti-SLAPP" Statute.       Practice, Civil, Motion to dismiss.



     Civil action commenced in the Superior Court Department on
December 16, 2014.

     A special motion to dismiss was heard by Edward P.
Leibensperger, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     John H. Reichman, of New York (James E. Grumbach also
present) for the defendants.
     Megan L. Meier, of Virginia (Samuel Perkins also present)
for the plaintiff.
     Thomas R. Sutcliffe, Jeffrey J. Pyle, & Sarah R. Wunsch,
for American Civil liberties Union of Massachusetts, amicus
curiae, submitted a brief.




    1
        Karen Savage.
                                                                     2


     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


     2
       The Huffington Post, at the time, was incorporated in and
had its principal place of business in New York.
                                                                   3


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



     3
       We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts.
     4
       See G. L. c. 231, § 59H (in ruling on anti-SLAPP special
motion, "the court shall consider the pleadings and supporting
and opposing affidavits stating the facts upon which the
liability is based").
                                                                   4


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
                                                                    5


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


     5
       In re Oil Spill by the Oil Rig "Deepwater Horizon" in the
Gulf of Mexico, on April 20, 2010, U.S. Dist. Ct., MDL No. 2179
(E.D. La.).
                                                                      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


     6
       Other publications had made substantially similar
allegations. See note 17, infra.
     7
       Both defendants also moved to dismiss for failure to state
a claim, and Cherri Foytlin moved to dismiss for lack of
personal jurisdiction. Those motions were denied, and the
defendants did not appeal from the denials.
                                                                   7


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 (1998)

(Duracraft).   Relying on this court's decision in Fustolo v.

Hollander, 455 Mass. 861 (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 (2002), S.C., 441 Mass. 9 (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


     8
       After the defendants filed their notice of interlocutory
appeal, they unsuccessfully moved to stay discovery in the
Superior Court pending appeal; ChemRisk opposed the motion. The
defendants complied with the extant discovery order. Shortly
after direct appellate review was allowed, and ChemRisk's own
discovery responses were due, ChemRisk indicated its intention
voluntarily to dismiss the action pursuant to Mass. R. Civ. P.
41 (a) (2), 365 Mass. 803 (1974). The defendants opposed the
dismissal. The judge subsequently denied ChemRisk's motion,
reasoning that the defendants' special anti-SLAPP motion seeking
attorney's fees and costs constituted "for all intent[s] and
purposes, a counterclaim that remains alive."
                                                                   8


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.   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 (2005).   A defendant who prevails on the special

     9
       SLAPP is an acronym for "strategic lawsuits against public
participation." See Duracraft Corp. v. Holmes Prods. Corp., 427
Mass. 156, 159-160 & n.7 (1998), (Duracraft). See also G.W.
Pring & P. Canan, SLAPPs: Getting Sued for Speaking Out 3
(1996).
     10
       Foytlin is a mother of six supporting herself with modest
monthly stipends; she lives in Louisiana less than fifty miles
from the affected portion of the Gulf Coast shore. Karen Savage
is a single mother of four who, at the relevant time, worked as
a middle school teacher in the Roxbury section of Boston.
                                                                     9


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.    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 (2001);

Duracraft, supra at 168; G. L. c. 231, § 59H.

     The anti-SLAPP statute provides protection, by its terms,

wherever "civil claims . . . against [a] party are based on said

party's exercise of its right of petition under the

[C]onstitution of the United States or of the [C]ommonwealth."

G. L. c. 231, § 59H.    The statute defines the "exercise of [the]

right of petition"11 to include


     11
       The First Amendment to the United States Constitution
protects "the right . . . to petition the [g]overnment for a
redress of grievances," along with the right to "free exercise"
of religion, "freedom of speech," freedom "of the press," and
"the right . . . peaceably to assemble." Unlike similar
statutes in other States, the Massachusetts anti-SLAPP statute
                                                                  10


           "[1] any 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."

Id.

      While this definition is "very broad," Duracraft, 427 Mass.

at 162, it has been limited by our construction of the statutory

phrase "said party's exercise of its right of petition."   G. L.

c. 231, § 59H (emphasis added).   We have taken this phrase to

mean that one seeking the protection of the statute must show

that he or she has "petition[ed] the government on [his or her]

own behalf . . . in [his or her] status as [a] citizen."

Kobrin, 443 Mass. at 332.   Put another way, the petitioning at

issue must be of the kind contemplated by the United States and

Massachusetts Constitutions.   See id. at 334; Fisher v. Lint, 69

Mass. App. Ct. 360, 364 (2007).   Thus, to meet the threshold

burden for its special motion dismiss, the special movant must

show that its claimed petitioning activity falls within one or



protects only the "right of petition," G. L. c. 231, § 59H, not
all First Amendment rights. See Fustolo v. Hollander, 455 Mass.
861 871, n.12 (2010), citing Cal. Civ. Proc. Code § 425.16 (West
2004 & Supp. 2010).
                                                                  11


more of the five statutorily enumerated categories; that such

exercise was petitioning in the constitutional sense, i.e.,

undertaken as the exercise of the special movant's right of

petition; and that it formed the sole basis of the nonmoving

party's claim.

     b.   Defendants' threshold burden.   Thus, in order to

prevail on the special motion to dismiss, Foytlin and Savage

must show that the Huffington Post article qualifies as

petitioning activity within one or more of the statutory

definitions, that the article was an exercise of their own right

of petition, and that there was no basis for ChemRisk's

defamation claim other than the statements in the article.12

     i.   Statutory categories.   The Huffington Post blog posting

falls within at least one of the enumerated definitional

categories.   It formed part of the defendants' ongoing efforts

to influence governmental bodies by increasing the amount and

tenor of coverage around the environmental consequences of the

spill,13 and it closes with an implicit call for its readers to


     12
       ChemRisk does not dispute that its complaint is based
exclusively on the Huffington Post article. Its single-count
defamation complaint points only to the four paragraphs quoted
supra.
     13
       In addition to writing the blog posting at issue, the
defendants have worked to raise awareness of the consequences of
the spill by, among other things, marching from New Orleans to
Washington, D.C.; drafting press releases; meeting with Federal
officials; and corresponding with Federal agencies such as the
                                                                     12


take action.     Given this, the article fits squarely within the

second clause of G. L. c. 231, § 59H:     "any statement reasonably

likely to enlist public participation."

    In addition, it was written against the backdrop of

multidistrict litigation pending against BP, and referred to

that litigation and to BP's efforts to limit its liability for

the spill.     The article noted, specifically, the actions of one

of BP's experts, ChemRisk.     Given this, it may fit within the

second clause of G. L. c. 231, § 59H:     "any written . . .

statement made in connection with an issue under . . . review by

a . . . judicial body."     This language includes communications

"closely and rationally related to the [judicial] proceedings,"

Plante v. Wylie, 63 Mass. App. Ct. 151, 159 (2005), that are

"made to influence, inform, or at the very least, reach

[judicial] bodies -- either directly or indirectly" (citation

omitted).    North American Expositions Co. Ltd. Partnership v.

Corcoran, 452 Mass. 852, 861 (2009).

    ii.     Defendants' exercise of their own right of petition.

In three cases in our jurisprudence, Kobrin, 443 Mass. at 328,

Fisher, 69 Mass. App. Ct. at 361, and Fustolo, 455 Mass. at 861-



Department of Justice, the Environmental Protection Agency, the
Occupational Safety and Health Administration, the Department of
Health and Human Services, the Centers for Disease Control and
Prevention, and the National Institute of Environmental Health
Sciences.
                                                                     13


862, activities that met at least one of the statutorily

enumerated categories were nonetheless held not to be protected

petitioning because such activities were not established to be

the special movant's exercise of "its [own] right of petition."

G. L. c. 231, § 59H.    Using the language of Kobrin, 443 Mass. at

332, in each instance, the special movant was determined not to

have petitioned on its "own behalf" or in its "status as [a]

citizen[]."   Each such case involved circumstances not present

here:   the special movants in those cases spoke in the capacity

of either a contracted government expert witness, Kobrin, 443

Mass. at 329; a government employee, Fisher, 69 Mass. App. Ct.

at 360; or a journalist charged with objectively reporting the

news, Fustolo, 455 Mass. at 862.     In so doing, they were not

speaking for themselves, but in a different capacity.     As such,

they were not exercising their own constitutional right of

petition, as they must in order to claim protection under the

statute.    Nothing, however, in the history of the constitutional

right to petition, or in those cases, suggests that the right of

petition protected by the anti-SLAPP statute is limited to

seeking redress of purely personal grievances.

    A.     Constitutional history.   The United States Constitution

protects the right to petition to redress grievances whether

those grievances be private or public in nature.     "[T]he

right[] . . . to petition for a redress of grievances [is] among
                                                                   14


the most precious of the liberties safeguarded by the Bill of

Rights."   United Mine Workers of Am., Dist. 12 v. Illinois State

Bar Ass'n, 389 U.S. 217, 222 (1967).   It has been a fundamental

aspect of liberty for the better part of 1,000 years:    first to

petition the King, then Parliament, then the colonial

Legislatures, and finally the institutions of our own

government.   See generally Mark, The Vestigial Constitution:

The History and Significance of the Right to Petition, 66

Fordham L. Rev. 2153 (1998).   Never in that time has the right

been confined to petitions seeking to redress grievances that

are either purely personal or purely public in nature.      See id.

at 2166-2167, 2182, 2184, 2196, 2207, 2226-2228.

    In the first eighty years of this Republic, for example,

petitions flooded Congress on many topics.   Among the most

prominent were petitions regarding one matter of personal

concern -- the payment of individual Revolutionary War

pensions -- and those regarding one of public concern -- the

abolition of slavery.   See Higginson, A Short History of the

Right to Petition Government for the Redress of Grievances, 96

Yale L.J. 142, 158-165 (1986) (discussing abolitionist

petitions); Keenan, Discretionary Justice:   The Right to

Petition and the Making of Federal Private Legislation, 53 Harv.

J. Legis. 563, 585-590 (2016) (discussing war pension

petitions).   The absolute right to present these petitions
                                                                   15


regardless of subject matter was never questioned.   See

Higginson, supra at 159.

    B.    Case law.   Our cases recognize that the anti-SLAPP

statute, like the constitutional right it safeguards, protects

those looking to "advanc[e] causes in which they believe"

(citation omitted), Hanover v. New England Reg'l Council of

Carpenters, 467 Mass. 587, 594 (2014), as well as those seeking

to protect their own private rights.   See Duracraft, 427 Mass.

at 164.   This is so because it is the right of petition as such

that the statute seeks to protect.   See, e.g., Hanover, 467

Mass. at 594.    To meet its threshold burden, a party bringing a

special motion to dismiss must be exercising his or her own

constitutional right of petition, but need not be the

beneficiary of the particular cause the party seeks to advance.

See Kobrin, 443 Mass. at 332 n.8.

    In this light, we have held that the statute protects

nonself-interested petitioning on behalf of the environment,

much like the petitioning at issue here.    See Baker, 434 Mass.

at 545-546 (biologist spoke to Federal and State agencies

expressing her opinion that island in Plymouth Bay provided

vital bird habitat and her hope that government agencies would

protect site).   The Baker decision finds support in the fact

that, as this court previously has acknowledged, the Legislature

enacted the anti-SLAPP statute with antidevelopment activists in
                                                                   16


mind, many of whom were focused on protecting natural

resources.14   See Kobrin, 443 Mass. at 336, 337 n.11; Duracraft,

427 Mass. at 161.    The decisions in Kobrin, Fisher, and Fustolo

are not to the contrary.

     In Kobrin, 443 Mass. at 332 n.8, 340, we drew a distinction

between people who engaged in petitioning activity "in their own

right" and the defendant in that case, whom we classified as

simply a "vendor[] of services."    One in the latter group does

not exercise "its right to petition" (emphasis supplied).       G. L.

c. 231, § 59H.   While holding that an expert witness retained to

investigate and testify on behalf of the government could not

claim the protection of the anti-SLAPP statute, the court in

Kobrin reiterated the principle that petitioners need not act in

their own self-interest.   See id. at 339-340 (reaffirming

holding in Baker despite those defendants' lack of personal

stake).   The defendant in Kobrin fell outside the ambit of the

statute because he was not exercising his own constitutional

right, but instead had entered into a "mere[ly] contractual"

relationship to vend his skills and knowledge to the government.

Id. at 338.    The defendants here, far from having a "merely

     14
       The catalyst for the introduction of the anti-SLAPP
legislation was an incident in 1991 in which a developer sued
several residents of Rehoboth, who had engaged in petitioning
activity concerning the developer's effects on wetlands that
drained into the Palmer River. See Duracraft, 427 Mass. at 161.
The residents incurred more than $30,000 in legal fees prior to
the suit's dismissal nine months later. Id.
                                                                   17


contractual" commitment to Gulf Coast cleanup, have the same

type of independent interest in their cause that the Baker

defendants did.

    In Fisher, the Appeals Court applied the reasoning of

Kobrin to another case involving a witness speaking in his

capacity as an employee of the government.    There, the court

held that a police officer, ordered to investigate a fellow

officer for an internal affairs hearing, was simply carrying out

the duties of his job -- duties specifically assigned to him by

his superior -- rather than exercising any constitutional right

of his own.   See Fisher, 69 Mass. App. Ct. at 364-365.

    Fustolo, on which the plaintiff places particular reliance,

extends the logic of Kobrin and Fisher to a journalist carrying

out a specific assignment.    In so doing, she, too, was not

seeking to redress a grievance "of [her] own."    Fustolo, 455

Mass. at 867.   The staff reporter in question in that case

worked for a local newspaper, and was sued for defamation for

reporting on proposed development projects at local properties

owned by Fustolo.    The reporter was employed to write, and did

write, impartial news articles, despite having personal views on

the same subjects.   See id. at 862.   As we explained, the

reporter

    "expressly stated in her affidavit that in writing all her
    articles, she was 'always careful to present an objective
    description of the subject matter, including the positions
                                                                   18


     of both sides where applicable,' and that while she had
     personal views on the issues she covered, 'they were not
     reflected in the articles [she] wrote.'"

Id. at 867.    This objectivity was pivotal to the decision

insofar as the reporter was not exercising her own

constitutional right to petition when authoring the challenged

articles.    See id.

     c.     Reasonable basis in fact.   Because they expressed their

own opinions, speaking for themselves and at their own behest,

Foytlin and Savage have established that they exercised their

own right to petition when they wrote the article at issue.

Having satisfied their threshold burden, the burden shifts to

the nonmoving party, here ChemRisk, who, to defeat the special

motion to dismiss, must show by a preponderance of the evidence

that the allegations in the blog posting were devoid of any

reasonable factual support or arguable basis in law.15     See G. L.

c. 231, § 59H.    It has not done so, having provided minimal

evidence that the defendants lacked a reasonable basis in fact

for the challenged statements.16


     15
       Although the motion judge did not perform this analysis,
we reach the question because "only one conclusion is possible
on this record." See Adams v. Whitman, 62 Mass. App. Ct. 850,
858 (2005).
     16
       ChemRisk attached to its unverified complaint a letter
apparently from Dr. Jian Dong Zhang, the author of the study
that was the subject of the allegedly defamatory statements,
suggesting that he agreed with ChemRisk's later analysis. Given
the defendants' verified submissions to the contrary, that
                                                                 19


     Foytlin and Savage, by contrast, offered verified support

for their special motion to dismiss, each detailing in

affidavits the basis for the challenged statements.   Foytlin,

for example, referenced in and attached to her affidavit a

series of articles appearing in scholarly journals and reputable

newspapers, and other Internet blog postings.   These articles

and blog postings provide factual support for the defendants'

characterizations of ChemRisk's practices, and also contain

assertions similar to those made by the defendants concerning

those practices.17   Foytlin further averred that the journal that




letter fails to demonstrate by a preponderance of the evidence
that the challenged statements were "devoid of any reasonable
factual support." G. L. c. 231, § 59H.
     17
       See Heath, Center for Public Integrity, How Industry
Scientists Stalled Action on Carcinogen (Mar. 13, 2013);
Egilman, Commentary: Corporate Corruption of Science -- The
Case of Chromium(VI), 12 Int'l J. Occup. Envtl. Health 169
(2006); Waldman, Medical Journal to Retract Study: Firm's
Consultants Conducted Research, not Chinese Doctors, Wall St. J.
(June 6, 2006); Waldman, Study Tied Pollutant to Cancer; Then
Consultants Got Hold of It: "Clarification" of Chinese Study
Absolved Chromium-6; Did Author Really Write It?, Wall St. J.
(Dec. 23, 2005); Chrome-Plated Fraud: The ChemRisk Documents,
Environmental Working Group (Dec. 23, 2005), http://www.ewg.
org/research/chrome-plated-fraud [https://perma.cc/B7WT-A9PW];
Michaels, A Chrome-Plated Controversy, The Pump Handle (Dec. 7,
2006), https://thepumphandle.wordpress.com/2006/
12/07/a-chrome-plated-controversy [https://perma.cc/3EPD-D84M].
See also Roe & Callahan, "Flat-out Deceptive": Distortion of
Science Helped Industry Promote Flame Retardants, Downplay the
Health Risks, Chicago Tribune (May 9, 2012) (Pulitzer Prize-
nominated article accusing ChemRisk of distorting different
study on behalf of clients); Lane, Weakened Rules a Boon to 3
Polluters: Work of Scientist Paid by the Firms Viewed
                                                                  20


had published the ChemRisk study, criticized by the defendants

in their Huffington Post piece, later retracted the article.

Given ChemRisk's failure to offer evidence that would establish

the absence of any reasonable factual support for the challenged

statements, it cannot withstand the defendants' special motion

to dismiss ChemRisk's defamation suit brought against them.

That motion must be allowed.

    3.   Conclusion.   The denial of the special motion to

dismiss is reversed, and the case is remanded to the Superior

Court for the entry of a judgment consistent with this opinion

and for the award of reasonable attorney's fees and costs.     The

defendants also may file an appropriate application for

appellate fees and costs in this court, pursuant to Fabre v.

Walton, 441 Mass. 9, 10 (2004).

                                   So ordered.




Skeptically by Other Experts, Newark Star-Ledger (Mar. 7, 2004)
(reporting on ChemRisk's chromium research in other contexts).
