Supreme Judicial Court Concludes That Anti-SLAPP Statute Does Not Apply to Civil Enforcement Actions By the Attorney General

In a recent decision, affirming the Superior Court, the Supreme Judicial Court concluded that civil enforcement actions filed by the Attorney General are not subject to the constraints of G. L. c. 213, § 59H, also known as the anti-SLAPP statute.

In Commonwealth v. Exxon Mobil Corp., Attorney General Healy brought a civil enforcement action on behalf of the Commonwealth against Exxon Mobil pursuant to G. L. c. 93A. Specifically, the Attorney General alleged that Exxon Mobil (1) misrepresented or failed to disclose material facts to its investors in Massachusetts related to the impact of climate change on its business; (2) misled Massachusetts consumers as to the climate impact of the corporation’s products; and (3) misled Massachusetts consumers through its “greenwashing” campaigns that incorrectly imply that the corporation has been taking steps to solve climate change.

Exxon Mobil filed a special motion to dismiss all counts under the anti-SLAPP statute, which prohibits a party from asserting claims that are solely based on another party’s protected right to petition – known as “petitioning activity.” The Superior Court denied Exxon Mobil’s special motion, concluding that the Attorney General’s complaint was not solely based on Exxon Mobil’s petitioning activity, something Exxon Mobil was required to demonstrate.

On direct appellate review, the Attorney General argued that the anti-SLAPP statute does not apply to civil enforcement actions brought by her office. The Supreme Judicial Court agreed. Applying the statute to such actions initiated by the Attorney General is both contrary to the rules of statutory construction and the statute’s legislative history.  Moreover, subjecting civil enforcement actions to the anti-SLAPP statute would have vast, negative public policy implications.

Given its conclusion, the Supreme Judicial Court did not reach the issue of whether the complained-of conduct constituted protected petitioning activity within the meaning of the statute. Interestingly, however, the Court seemed to (not so subtly) hint that the Legislature may want to consider narrowing that definition.

Anyone who has filed or defended against a special motion to dismiss pursuant to the anti-SLAPP statute is well-aware of the complex nature of the analysis. So is the Supreme Judicial Court, it seems, as it explicitly acknowledged that it may need to simplify the analysis in the future.

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