Tort – SLAPP – Abuse of process – Chapter 93A

Listen to this article

Where (1) a plaintiff whose former employee started a new business brought suit against a defendant for allegedly misappropriating confidential information, aiding and abetting a breach of fiduciary duty by the former employee and violating G.L.c. 93A, section11, (2) the defendant asserted counterclaims for abuse of process and violation of G.L.c. 93A, section11, and (3) the plaintiff has moved to dismiss the counterclaims, arguing that they are barred by the anti-SLAPP statute, G.L.c. 231, section59H, the dismissal motion should be denied, as the counterclaims were not brought primarily to chill legitimate petitioning activities by the plaintiff but instead were brought to seek damages for injury the defendant suffered as a result of allegedly unlawful conduct by the plaintiff.

“… As discussed in more detail below, if a jury were convinced that [plaintiff America’s Test Kitchen (ATK)] asserted baseless claims against [defendant William] Thorndike [Jr.] in order to hinder [Christopher] Kimball’s ability to compete against ATK, it could find that ATK committed the tort of abuse of process and violated G.L.c. 93A.

“Furthermore, considering the circumstances as a whole, the Court is convinced that Thorndike’s primary purpose in asserting his counterclaims is to seek and obtain compensation for injuries caused by ATK’s alleged abuse of process and unfair trade practices. …

“The anti-SLAPP statute does not bar such claims. … As the Supreme Judicial Court recently explained, ‘[t]he Legislature did not intend’ that the anti-SLAPP statute be used ‘to forestall and chill the legitimate claims — also petitioning activity — of those who may truly be aggrieved by the sometimes collateral damage wrought by another’s valid petitioning activity.’ …

“Thorndike’s allegations that ATK sued him in order harass and punish him do not suffice to state a claim for abuse of process. …

“But Thorndike also alleges that ATK’s lawsuit, including its claims against him, was brought ‘to obtain an unlawful competitive advantage against CPK Media’s business’ and to ‘imped[e] lawful competition from Kimball, with Thorndike’s support.’ The assertion that ATK brought a baseless lawsuit in order to make it harder for Kimball to compete against ATK states a viable claim for abuse of process. …

“These same allegations, that ATK asserted baseless claims against both Kimball and Thorndike in and attempt to stifle competition from Kimball’s new venture, state a viable claim that ATK engaged in an unfair trade practice in violation of G.L.c. 93A. …

“… Even if Thorndike’s pleading mistakenly invokes section11 rather than section9, that would not mean that his counterclaim under G.L.c. 93A must be dismissed. The complaint need not ‘state the correct substantive theory of the case.’ … A complaint will survive a Rule 12(b)(6) motion to dismiss so long as it alleges facts plausibly suggesting ‘relief on any theory of law,’ even if the complaint cites the wrong statute or invokes the wrong cause of action. …”

America’s Test Kitchen Inc. v. Kimball, et al. (Lawyers Weekly No. 09-060-18) (4 pages) (Salinger, J.) (Suffolk Superior Court) (Docket No. 1684CV03325-BLS2) (June 6, 2018).