Tort – Defamation – SLAPP

Where a defamation claim has been brought, that claim should not be dismissed under the Massachusetts anti-SLAPP statute because petitioning activity is not a basis for the claim.

“Plaintiffs Duane Baughman, Katie Merrill, and their companies, The Baughman Company, Inc., d/b/a BaughmanMerrill (the ‘Company’), and The Merrill Strategy Group (the ‘Merrill Group’) bring this action for defamation and defamation per se (Count I) and tortious interference with contractual relationship (Count III) against Defendant Petra Beter (‘Beter’) and for tortious interference with prospective business advantage (Count II) and civil conspiracy (Count IV) against Beter and her sister, Defendant Josee Marie Beter (‘Josee Beter’). Plaintiffs contend that Defendants ‘have engaged in a 20+ year smear campaign that has consisted of repeated baseless, unsubstantiated, defamatory allegations that Plaintiff Baughman sexually assaulted Defendant Beter (and others), and that Baughman’s business partner, Plaintiff Merrill, has helped cover it up.’ …

“Count I alleges defamation and defamation per se against Beter for her March 28, 2023 email to Janica Kyriacopoulos, which Beter allegedly forwarded to numerous other individuals, and her April 14, 2023, and April 18, 2023 emails to [Marie] Baldassarre. …

“Defendants assert rights under Anti-Strategic Lawsuit Against Public Participation (‘anti-SLAPP’) statutes in California (where Plaintiffs reside), or in the alternative, in Massachusetts (where Defendant Beter purportedly resides). …

“Both state’s anti-SLAPP statutes protect petitioning activity, and Defendants point for petitioning activity here to Beter’s 2012 reports to the FBI and her 2017 lawsuit. But while this background is set forth in the Complaint, it is not a basis for the causes of action against Beter, let alone the sole basis. Instead, Defendants’ claims against Beter are directed to her more recent emails and communications. Accordingly, Beter has failed to make the initial showing under either statute based on her petitioning activity.

“Josee Beter’s claim for protection based on petitioning activity is even weaker. The Complaint includes no allegations of petitioning activity by Josee Beter, and Josee Beter makes no showing that she engaged in any petitioning activity.

“In sum, to the extent that the Motion to Strike is made under Massachusetts’ Anti-SLAPP statute or California’s Anti-SLAPP statute as it relates to petitioning activity, the motion fails at step one of the analysis. …

“The Motion to Strike, whether brought under California or Massachusetts law, is denied. …

“Under either California or Massachusetts law, Plaintiffs’ defamation claim is not time-barred. …

“Defendants assert that Plaintiffs are public figures and were therefore required to plead actual malice under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The court disagrees and finds that Plaintiffs are not public figures and accordingly Defendants are not entitled to the protection of the ‘actual malice’ standard. The court finds further that Plaintiffs have pled actual malice. …

“… Because Defendants’ emails accuse Baughman of the crime of sexual assault, Plaintiffs have sufficiently pleaded their defamation claim against Beter and Defendants’ Motion to Dismiss [Doc. No. 33] is denied as to Count I.”

Baughman, et al. v. Beter, et al. (Lawyers Weekly No. 02-486-24) (27 pages) (Talwani, J.) (Civil Action No. 1:23-cv-11278-IT) (Oct. 11, 2024).

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