Agenus, Inc. v. McCourt (Lawyers Weekly No. 09-004-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV00427-BLS2 ____________________ AGENUS, INC. v. JANIS McCOURT ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Janis McCourt used to be employed by Agenus, Inc. In its complaint, Agenus asserts claims that: (i) when McCourt left she took and later used confidential information belonging to Agenus and thereby breached a non-disclosure agreement, breached a fiduciary duty of loyalty, tortuously misappropriated confidential information or trade secrets, and converted Agenus’s property; and (ii) McCourt provided services to at least three competitors of Agenus and thereby breached the non-competition covenant contained in the parties’ Change of Control Plan agreement. McCourt has moved to dismiss all claims against her, based in part on alleged connections between the claims by Agenus in this action and claims for unlawful discrimination asserted by McCourt against Agenus in a separate Middlesex Superior Court action. The Court concludes that it must DENY McCourt’s motion to dismiss for the following reasons. First, the anti-SLAPP statute is not implicated here because none of Agenus’s claims are based solely on petitioning activity within the meaning of G.L. c. 231, § 59H. McCourt argues that the non-disclosure, misappropriation, and related claims are based on her retention and use of Agenus documents to support her employment discrimination claims. The Court is not convinced. These claims do not implicate § 59H because they are based at least in part on allegations that McCourt acted unlawfully by taking away documents that belonged to Agenus. The Appeals Court has held that a claim based at least in part on conduct undertaken to investigate a potential claim or report to the government is not protected by the anti-SLAPP statute, even if that conduct later informs some kind of – 2 – effort to petition for government aid or relief. See Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394, 396 (2010) (claim based in part on alleged trespass to investigate possible wetlands violation, which informed petitioning activity of submitting observation form to state agency’s endangered species program); Maxwell v. AIG Domestic Claims, Inc., 72 Mass. App. Ct. 685, 694-695 (2008) (claim based in part on allegedly inadequate investigation, which informed petitioning activity of report to insurance fraud bureau); Garabedian v. Westland, 59 Mass. App. Ct. 427, 433 (2003) (claim based in part on gathering video evidence, which informed petitioning activity to State and local officials regarding private airfield). “[W]here the underlying conduct involves both petitioning activity and activity not considered petitioning,” a claim is not subject to dismissal under § 59H. Brice Estate, supra. Even if these claims are based in part on petitioning activity by McCourt, they are also based in large part on alleged misconduct that occurred before […]