Can I Be Sued Because I Sued Them?

A common reaction for someone who feels he or she has been sued wrongfully is to want to countersue to recover the attorneys’ fees spent defending the matter.  The defendant believes they can sue the plaintiff for suing them first.  Doing so, however, could just lead to the defendant having to pay the plaintiff’s attorneys fees incurred in defending against the retaliatory claims.

The anti-SLAPP statute, G.L. c. 231, § 59H, protects one’s right to petition the government.  Petitioning activity is defined to include, among other things, any written or oral statement made before or submitted to a governmental agency or made in connection with or reasonably likely to encourage or review or consideration of an issue by a governmental agency.  The filing of a lawsuit is considered quintessential petitioning activity and will be protected.  If one sues another for exercising his or her right to petition, including by filing a lawsuit, the lawsuit could be subject to a “special motion to dismiss.”  This is a unique procedure that will obligate a Court to dismiss the retaliatory lawsuit unless the party can show that the original filing party’s claims were a sham (i.e., without any basis in fact or law) or that the responding party’s claims were both meritorious, brought to recover for actual injury incurred, and not asserted in retaliation for the claims being brought against it.  If the party cannot make that showing, the Court must dismiss the retaliatory claims and order that the party pay the other’s attorneys’ fees and costs.  One is well advised to consult with an attorney about the application of the anti-SLAPP statute to his or her particular situation before deciding whether to pursue such a claim.

-By Joseph Calandrelli

O’Connor, Carnathan and Mack LLC is a commercial litigation law firm located in Burlington, Massachusetts that helps companies and individuals resolve complex business disputes, insurance coverage disputes, and personal injury claims. Our legal team includes top-flight commercial litigation attorneys as well as dedicated personal injury lawyers. Our clients include Fortune 500 companies as well as closely-held businesses and astute individuals. We believe every client deserves the finest representation possible for a fee they can afford. Accordingly, we offer our services at rational hourly rates and on a contingency fee basis, devise our strategies to fit the amount at stake, and are open to creative alternative fee arrangements as well. Our attorneys serve clients in Middlesex County and Suffolk County, as well as throughout Massachusetts and New England. Contact us to learn more.