Arbitration – SLAPP

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Where plaintiffs have filed a complaint against a defendant who commenced an arbitration proceeding against them, a claim for breach of fiduciary duty (Count I) should be dismissed pursuant to the anti-SLAPP statute because the plaintiff was engaged in petitioning activity when she started the underlying arbitration.

“The plaintiffs in this suit, various shareholders and creditors of Atlantic Medicinal Partners, Inc. (AMP), have sued Victoria Waters, another alleged creditor of AMP. …

“Ms. Waters primarily says that plaintiffs filed this suit to squelch the arbitration she initiated against AMP. Ms. Waters argues that the commencement of an arbitration proceeding counts as petitioning for purposes of the anti-SLAPP statute and that plaintiffs are seeking to chill this petitioning activity through this suit. Plaintiffs disagree. They argue that the arbitration is not petitioning activity within the meaning of the statute. If Plaintiffs are right, then the special motion to dismiss must be denied. If Ms. Waters is right that the arbitration was petitioning activity, and if plaintiffs’ suit is based solely on her exercise of her right to petition, with no other substantial basis, then I must proceed to stage two of the Bristol Asphalt [Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539 (2024)] analysis.

“What counts as petitioning under the statute? Quite a bit, it turns out, and much judicial ink has been deployed in service of defining the scope of petitioning under the anti-SLAPP law. …

“So, what does the case law say about arbitrations? Does arbitration count as petitioning activity? Despite that ocean of judicial ink on this subject, our courts have not had much occasion to wade into the topic of whether private arbitrations qualify as petitioning activity. To the court’s knowledge, there is no case law that definitively says — one way or the other — that such activities can qualify as petitioning under the anti-SLAPP law, and the parties do not point to any. At argument, in fact, all parties agreed that this question has not been decisively addressed by any appellate court in Massachusetts.

“Still, the Appeals Court has at least left a few breadcrumbs along the trail concerning arbitration in the context of special motions to dismiss. …

“So if (1) litigation in the trial courts is considered bedrock petitioning activity under the anti-SLAPP statute, (2) arbitration is treated much the same way as trial court litigation and features many of the same hallmarks, (3) arbitration disputes frequently intersect with and bubble up to the trial court, and (4) public policy favors arbitration, then it seems that commencing an arbitration should be every bit the petitioning activity that commencing a trial court lawsuit is. Put differently: why should Ms. Waters be barred from using the anti-SLAPP shield when she alleges that she was contractually obliged to arbitrate her dispute with AMP, even though if she had filed suit against AMP in Superior Court, all agree she’d be entitled to the full suite of anti-SLAPP’s safeguards.

“Nevertheless, Plaintiffs contend that the arbitration here is a purely private affair, involving no government officials. As such, they argue that the anti-SLAPP law’s protections cannot apply in the absence of a direct governmental nexus. Plaintiffs’ argument, however, is too narrow. Our case law has never required that the nexus between the alleged petitioning activity and the government be quite as direct as plaintiffs prefer for the anti-SLAPP law to apply. …

“Consider the state of play here. In Ms. Waters’s arbitration, filings were made to an arbitrator, who is treated like a judicial officer in many respects under our case law. The case was filed in that forum because Ms. Waters believes that her alleged contract with AMP required all disputes to be resolved in that forum. The arbitrator is tasked with resolving the dispute between AMP and Ms. Waters. In service of that goal, the parties in the underlying arbitration can use many of the tools of discovery and civil procedure afforded to litigants. In fact, the plaintiffs here tried to intervene in that arbitration, much in the same way that a party could intervene in a Superior Court civil action. All parties in Ms. Waters’s arbitration have been afforded notice and a hearing on the merits. And when the arbitrator eventually reaches a judgment, that judgment can be brought before a judge in the trial court — an activity that is certainly protected as petitioning activity directly to a public official, as Plaintiffs recognize — for confirmation or modification. (In fact, the Court confidently predicts that whatever the result of the arbitration between Ms. Waters and AMP, a motion to confirm, vacate, or modify the arbitrator’s decision is a fait accompli, and at argument, Ms. Waters’s counsel all but promised that when the arbitration is concluded, either she or plaintiffs would be seeking to make the result of that arbitration binding in this proceeding.) These actions all exist on one continuous timeline, and the Court is satisfied that here, Ms. Waters was engaged in petitioning activity when she started the underlying arbitration. …

“Having concluded that Ms. Waters engaged in petitioning activities here, I also conclude that the challenged claim (Count I) is based solely on her exercise of the right to petition, with no substantial basis other than or in addition to those petitioning activities. Plaintiffs’ allegations in the pleadings and their motion for an injunction here are proof of that. Plaintiffs brought this claim precisely because they were upset that Ms. Waters began this arbitration with AMP. They sought to intervene in the arbitration, and when that request was rebuffed, they turned to the Superior Court to thwart the arbitration, going so far as to file a motion for an injunction to crater the arbitration. This suit is a transparent collateral attack on that arbitration — nothing more, nothing less. As such, Ms. Waters has carried her stage one burden under Bristol Asphalt.

“The analysis under stage two is far simpler. Plaintiffs forthrightly acknowledged at oral argument that they cannot discharge their burden under stage two. Plaintiffs cannot show that the Ms. Waters’s petitioning activity was a ‘sham,’ and they don’t pretend otherwise. Accordingly, the Court concludes that the special motion opponent cannot show that the proponent’s ‘petitioning activity was devoid of any reasonable basis in fact or law,’ and as such, Count I ‘must be dismissed’ regardless of the underlying merits of this claim.”

Cieri, et al. v. Waters (Lawyers Weekly No. 12-020-26) (14 pages) (Hornstine, J.) (Suffolk Superior Court) (Docket No. 2584CV02663) (April 28, 2026).

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