Duracraft Corp. v. Holmes Products Corp.5/7/1997
Statute, Construction. "Anti-SLAPP" Statute. Constitutional Law, Right to petition government. Words, "Matters of public concern."
GILLERMAN, J. A Judge of the Superior Court denied the defendants' special motion to dismiss under G. L. c. 231, § 59H, added by St. 1994, c. 283, § 1, commonly referred to as the anti-SLAPP statute (statute), the material provisions of which we set out in the margin. Thereafter, a single Justice of this court granted leave to appeal the Judge's ruling to a full panel of this court. The appeal raises, for the first time, issues regarding the scope and application of the statute. Certain material facts that provide the background for this controversy are undisputed. From 1987 to July, 1990, the defendant Marino was employed as an engineer for the defendant Holmes Products Corporation (Holmes). In July, 1990, Marino left Holmes to work for the plaintiff Duracraft Corporation (Duracraft), where he was employed until August, 1994. From August, 1994, to 1995, Marino was employed by a third company, Accutek. In December, 1995, Marino returned to Holmes, where he is currently employed.
Shortly after joining Duracraft in 1990, Marino entered into a "Nondisclosure and Non-Competition Agreement" (Agreement) in which he agreed not to disclose any confidential information to third parties. The Agreement also contained a provision stating that Marino is not precluded from disclosing confidential information "upon the lawful demand of any governmental agency (including court process)." Upon such a lawful demand, Duracraft was to have the opportunity to review and comment on the confidential information sought, and to discuss with Mr. Marino and the agency the scope and content of the requested information.
In 1992, while Marino was working for Duracraft, Holmes commenced an opposition proceeding against Duracraft before the Federal Trademark Trial and Appeal Board (TTAB), alleging that Duracraft had improperly registered the word "turbo" as a trademark. In November, 1995, Holmes noticed Marino's deposition in the TTAB proceeding. Marino was then working for Accutek. The deposition was postponed, re-noticed in January of 1996, and taken on February 7, 1996, by which time Marino was again employed by Holmes. Present at the deposition were four attorneys for Holmes, two attorneys for Duracraft, and Marino.
Duracraft, in an unverified complaint filed in March, 1996, alleges that during Marino's deposition, counsel for Holmes elicited, and Marino disclosed, confidential information concerning the "turbo" trademark litigation and related intellectual property matters. Duracraft also alleges that Marino met with attorneys for Holmes prior to the deposition and offered to provide such deposition testimony. The claims against Marino and Holmes are for breach of contract, breach of fiduciary duty, intentional interference with contractual relations, misappropriation of trade secrets, unfair competition, and unfair and deceptive acts and practices. Holmes and Marino then moved to dismiss these claims under the statute.
The Judge, relying on what she reasonably perceived to be the objective of anti-SLAPP statutes enacted in other jurisdictions, viz., "to protect citizens from lawsuits designed to silence their opposition concerning a matter of public concern," as well as the public reports of House floor debates, ruled that the mischief the statute was designed to remedy were "incidents involving citizens sued for speaking out on issues of public concern" (emphasis in original). Applying that standard, the Judge found that Marino's testimony during his deposition was not protected by the statute because a trademark dispute is not a matter of publi
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