Tort – SLAPP – Tortious interference

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Where a defendant has asserted counterclaims alleging tortious interference with contractual relations and advantageous business relations, the counterclaims must be dismissed pursuant to the anti-SLAPP statute (G.L.c. 231, section59H) because they are based solely on the plaintiff’s actions in filing his complaint and suing the defendants.

“Thomas J. Crotty has been in a protracted disputed with Continuum Energy Technologies (‘CET’) and its principal John Preston. After they settled one lawsuit against a company in which Crotty was a lead investor, CET sued Crotty for alleged fraud in negotiating that settlement. Judge Sanders dismissed CET’s fraud claims and then sanctioned CET $100,000, after finding that CET and Preston knew their claims had no legal or factual basis yet brought them ‘in an effort to gain some unfair advantage.’

“Crotty has now sued CET and Preston, alleging that in the prior fraud case they engaged in malicious prosecution, abuse of process, and civil conspiracy. Crotty also alleges that several investors in CET, including Prof. Michael Porter, knowingly participated in and are jointly liable for the purported conspiracy.

“CET and Preston assert counterclaims. They contend that certain factual allegations in Crotty’s complaint constitute tortious interference with advantageous business relations, and that Crotty’s conspiracy claim against CET investors constitutes tortious interference with contractual relations. …

“Mr. Crotty is entitled to have the counterclaims against him dismissed under the so-called ‘anti-SLAPP’ statute. This law applies to and may bar civil claims that are based on a party’s ‘exercise of its right of petition under the constitution of the United States or of the commonwealth.’ … ‘The acronym ‘SLAPP’ stands for strategic lawsuit against public participation.’ Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 134 n.2 (2017).

“The counterclaims implicate the anti-SLAPP statute because they are based solely on Crotty’s actions in filing his complaint and suing the Defendants. ‘Commencement of litigation is quintessential petitioning activity’ that is protected by the anti-SLAPP statute. …

“Preston and CET have not shown that Crotty’s petitioning activity lacks factual support or any arguable legal basis. …

“Even if the counterclaims by CET and Preston were not subject to dismissal under the anti-SLAPP statute, the Court would nonetheless have to dismiss those counterclaims under Rule 12(b)(6) because they do not state any claim upon which relief may be granted. …

“The counterclaim for tortious interference with advantageous business relations is barred by the litigation privilege. …

“The second counterclaim, for tortious interference with contractual relations, fails because Preston and CET allege no facts plausibly suggesting that Crotty actually interfered with any contract. …”

Other matter

“The Court will deny Prof. Porter’s motion to dismiss the claim against him. Count III states a viable claim of civil conspiracy against Porter because the facts alleged plausibly suggest that he participated in ‘a common plan to commit a tortious act’ of malicious prosecution and abuse of process by knowingly providing ‘substantial assistance’ to the prior action in the form of financial support. …

“The allegations that Porter answered repeated capital calls by providing additional funds to CET, and that he did so with the understanding that at least part of this additional funding would be used to pursue baseless litigation, are sufficient to state a civil conspiracy claim against Porter.

“Although Porter denies these allegations, in deciding this motion to dismiss the Court must assume that the facts alleged by Crotty in his complaint are true and must draw ‘every reasonable inference’ in favor of Crotty from those allegations. …”

Crotty v. Continuum Energy Technologies, et al. (Lawyers Weekly No. 09-060-20) (8 pages) (Salinger, J.) (Suffolk Superior Court) (Docket No. 1984CV03971-BLS2) (May 12, 2020).

Click here to read the full text of the opinion.