In Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479 (2017), the Supreme Judicial Court held that the anti-SLAPP statute protected two bloggers’ critical opinions contained in a blog post directed at a scientific consulting firm working for British Petroleum (“BP”) in the wake of the Deep Water Horizon spill.

The defendant bloggers, two environmental advocates, published a blog post criticizing the scientific consulting firm’s analysis and reporting on the toxic effects of the spill on clean-up workers. The allegedly defamatory post criticized the consulting firm’s report for not “coming clean,” and for the firm’s history of defending polluters.

On direct appellate review, the scientific consulting firm argued that the defendants’ blog post was not protected by the anti-SLAPP statute because it did not involve a grievance that was personal to the defendants. The SJC flatly rejected this argument, concluding that the history of the constitutional right to petition and the anti-SLAPP law protect an individual’s right to petition, even if that individual is not the beneficiary of the particular cause they seek to advance.

Ask and you (might) receive . . . just don’t forget to ask!

Nestled in the Court’s opinion is also a helpful refresher on the importance of requesting appellate attorney’s fees and costs in your appellate brief as required by Fabre v. Walton, 441 Mass. 9 (2004). To successfully obtain attorney’s fees and costs you are required to do the following:

  1. You MUST request appellate attorney’s fees and costs in your brief. Failure to request fees and/or costs waives the right to either or both.
  2. If you prevail, you must file a submission detailing and supporting the attorney’s fees and costs sought. This normally means submitting detailed billing/time records and an affidavit detailing the attorney’s qualifications, reasonable hourly rates and hours expended on the appeal.
  3. The Court will grant the opposing party a reasonable opportunity to respond to the petition for appellate fees and costs (usually fourteen days).
  4. Generally, the Court will grant the fee and cost application, or some portion thereof, without an additional hearing.
  5. Any party aggrieved by the decision can request reconsideration.

What happens if a party does not request appellate fees and costs in their brief? While the request is technically waived, the Court may exercise its discretion to award fees and costs, but it will exercise this power “sparingly.” Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006) (emphasizing that making the fee and cost request in the brief is “imperative” and failure to do so constitutes waiver). This procedure applies to both the Appeals Court and Supreme Judicial Court.