Howard M. Cooper
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
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?
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
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.
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
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
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
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.”
Harvard University - Berkman Center for Internet & Society
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
"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
"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
"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.
University - Berkman Center for Internet & Society
Howard M. Cooper
THE CADLE COMPANY vs. JAN R. SCHLICHTMANN & another.(1)
December 4, 2006. - January 17,
Marshall, C.J., Greaney, Ireland,
Spina, Cowin, Sosman, & Cordy, JJ.
Constitutional Law, Right to petition government.
Civil action commenced in the Superior
Court Department on April 12, 2005.
Special motions to dismiss were heard by Elizabeth M. Fahey,
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
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
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
"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
The Web site further states:
"To find out more or if you believe you have been victimized
by The Cadle Company, contact us directly: 877.CADLETRUTH
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:"
" [A]ny written or oral statement made before or submitted
to a legislative, executive, or judicial body, or any other
governmental proceeding;  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;  any statement reasonably likely to
encourage consideration or review of an issue by a legislative,
executive, or judicial body or any other governmental
proceeding;  any statement reasonably likely to enlist public
participation in an effort to effect such consideration; or 
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
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
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
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.
(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
(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
(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).