Attorney not allowed to bash business, Mass. SC says

By John O'Brien | Jan 23, 2007


BOSTON - The Massachusetts Supreme Judicial Court recently ruled against a high-profile Boston attorney who claims he was shielded from liability for publishing allegedly defamatory statements against a business.

Attorney Jan Schlichtmann, portrayed in the movie "A Civil Action" by actor John Travolta, was dealt a blow by the Court, which denied Schlichtmann's motion to dismiss claim Jan. 17.

The Cadle Company filed suit against Schlichtmann, who had started a Web site -- www.truthaboutcadle.com -- as a result of an ongoing legal battle between the two sides. The Cadle Company also claimed Schlichtmann made defamatory statements about it to the media.

The Supreme Court examined the application of the anti-SLAPP statute to Schlichtmann's motion to dismiss, which had been denied in Superior Court.

The statute "effectively shields one party in an ongoing legal dispute from liability for the publication of allegedly defamatory statements concerning the opposing party," wrote Justice John Greaney.

He also wrote that in the early 1990s, Schlichtmann and his former law firm borrowed money from the Boston Trade Bank, which subsequently failed, and Cadle, a debt-collection agency, purchased Schlichtmann's debts from the Federal Deposit Insurance Corporation.

In October 1991, Schlichtmann filed Chapter 7 of the Bankruptcy Code and months later the Bankruptcy Court issued a discharge of debtor to Schlichtmann. Years of litigation have followed over whether certain debts survived the discharge.

In 2003, Schlichtmann filed complaints with the Commissioner of Banks concerning the collection activities of Cadle, and began speaking out in the media.

The statements portrayed Cadle as a business that defrauded, threatened and harassed its customers.

Daniel Cadle wrote Schlichtmann, advising that the information on his website was false and requesting that he correct any "exaggerations, false statements and plain old bold-face lies."

When Cadle filed suit against Schlichtmann over the statements, the attorney attempted to hide behind the anti-SLAPP statute. The Court determined that it only applied when the actions complained of are merely petitioning ones.

"The defendants have not met their initial burden of demonstrating that 'the only conduct complained of is ... petitioning activity," Greaney wrote.

"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."

The case will be remanded to Superior Court. None of the other Supreme Court Justices dissented.

"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," Greaney wrote.

"Put more simply, aggressive lawyering of this sort is not protected petitioning activity."

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