-: SJC-13405,
Columbia Plaza Associates, Inc.
v. Northeastern University.
-: Good morning, Your Honor, Chief Justice Budd
and associate justices of Supreme Judicial Court.
Thank you very much for your kind attention today.
I represent Columbia Plaza Associates,
which is a non-profit, community-based group.
Initially, I'm going to talk
about a little of the background
as to why we are here today.
-: I think everybody's interested in the anti-SLAPP portion
of the argument, so-
-: Okay. -: Just 'cause I know
it's gonna- -: Well, if I may, Your Honor,
because there are other issues that I think,
I will address the SLAPP issue as my last argument,
but prior to that, I would like to address the
statute under which Linkage created Parcel 18.
And if I can say very briefly,
we are talking about Roxbury, Massachusetts.
It has a population which is 90% black.
It has the poorest
rate of people of color in,
it is 50% higher than the whites.
Roxbury per capita is less than half of the city average,
and the 1/3 people are living in color.
And I say that to say that Parcel 18
was intended to be this engine
that was going to revitalize the Roxbury community.
That's what Parcel 18 was all about.
And so what happened?
What we have here is a parcel-to-parcel linkage,
which is appendix.
And what this was,
this was a situation where in the '80s,
there was a decision made by the mayor of Boston,
Mayor Flynn and Governor Dukakis,
that this construction boom in Downtown Boston,
it never affected the poorest part of Cambridge,
I'm sorry, Boston.
So what are we going to do?
We're going to talk about
and enact this parcel-to-parcel Linkage Program.
And what that meant is that anyone
who developed a piece of property in downtown
had to develop a less desirable piece of property
in Roxbury.
So what happened?
There were five parcels.
They were all parking lots
that City of Boston owned.
They disposed of all four.
One remaining, Kingston/Bedford was the only parcel left.
And Governor Dukakis and Mayor Flynn said,
"We've gotta do something about this.
"We're gonna have to have a Linkage Program
"that's going to be the first in the country,
"the first in Boston that we're going to have
"to deal with this unequal disparity
"between white and black in Boston."
That was the Linkage Program.
So what happened?
They established
a Challenge Track,
and what that meant is that back in the '80s,
we're going to put this on fast track
to determine what are the needs of the minority community,
and what are we gonna do?
We're gonna talk about housing, employment,
jobs for minority people, minority contractors,
healthcare, childcare,
to improve the people of Roxbury.
So my client, Columbia Plaza Associates,
is successor to Metropolitan Structures.
And Met Structures had the developmental rights
of Parcel 18.
I went with Ken Guscott in to Chicago
in the late '80s,
and we negotiate a purchase of Met Structures,
developmental rights in Parcel 18.
-: I think the background's very helpful,
but it would be, we have a limited amount of time.
I'd like you to go through your counts for a second
and explain to me as best you can,
'cause I've got, Count I is claim
for the breach of the 1990 agreement.
Count II is the breach of the 2007.
Count III is breach of the implied covenant.
Count VII and VIII are Chapter 93A.
It would be very helpful to us
'cause this case is before us because we're very interested
in trying to improve our anti-SLAPP jurisprudence.
And your case is important to us
because it elucidates prong one of the anti-SLAPP.
So talk me through your different counts
and why they're based on petitioning activity,
'cause that's actually the most important thing to us.
Your briefs cover the other things very well,
but that's a focal point for this court today.
-: Well, when we deal with Count I,
I think it's very important, if I may, most respectfully,
to talk about parcel-to-parcel linkage
because that's the basis of- -: We get that.
-: Our Count I. -: The whole case is grounded-
-: And what happened?
As you know, there was a prior litigation
between Columbia Plaza and Northeastern.
And unfortunately, most respectfully,
Justice Connolly did not read the
attachments. -: Although,
Justice Connolly decides, in your favor,
a number of the counts
on the anti-SLAPP grounds, doesn't she?
So you don't wanna dump Justice Connolly so quickly.
-: Well, if I may, Your Honor,
under judicial estoppel,
which has an equity component, what happened?
There were findings of fact made by Judge Sanders
that applied to this position.
And what happened, what Judge Sanders found
that number one, and Northeastern knew about it,
that it came before her.
And I'm reading from her findings of fact
and conclusions of law,
October 16th, 1916 for jury waived trial
on the sole remaining count of the verified complaint,
Count VII, alleging violation of Chapter 93A.
We had filed a breach of contract action
because in the prior litigation,
Northeastern's claim, that was successful,
that in return for the developmental rights
on Parcel 1A,
CPA agreed to take Parcel 3A out
of the institutional master plan
and in return would be a developer with my client
for Parcel 1A was at that time was a hotel.
What happened, what Northeastern did,
they petitioned the BRA,
or should say the Boston Planning & Development Agency,
and they said that my client had no whatsoever rights
in Parcel 18, to quote from Judge
Sanders.
"At no time did Northeastern suggest
"that it would not participate with CPA
"in development of a hotel.
"Indeed, it was quite the opposite."
-: Mr. Owens, am I wrong that Judge Sanders,
your position is Judge Sanders' opinion
reflected Parcels 18-3A and 18-3B
did not impact the one at issue here, at 18-1A.
-: Exactly.
What was before her was a 93A count.
That was it.
It was not litigated as to Parcel 18-3A.
-: 1A, right? -: 1A.
It was not part of it at all.
And she clearly states, "At no time did Northeastern suggest
"that it would not participate in development of hotel,
"which was quite the opposite," she says.
Then she goes on to say, "In January 11th, 2007,
"the BRA formally approved the amended
"and restated development plan.
"So it's a construction of a hotel on Parcel 1A.
"That plan made it clear that Northeastern
"would construct that building on the parcel
"in partnership with CPA,
"expressly identified in the doc as the developer."
That's what she found, yet Northeastern
petitioned the Boston Planning & Development Agency
saying that CPA had no rights
in Parcel 18-1A.
-: Based on the Sanders decision.
-: Exactly, no, yeah.
She said the opposite.
And I submit to the court, most respectfully,
she also said that Northeastern stated
that both CPA and Northeastern would be developer
for any hotel located on Parcel 18-1A.
This was a true statement.
Northeastern agreed even today that CPA has no rights
in connection with development of parcel
and does not seek an order that would extinguish them.
She said we had rights.
They petitioned the Boston Planning
and said that we don't have rights.
That is the basis of our contract action
in Count I, breach of contract.
And I submit to the court, most respectfully,
that under the doctrine of judicial estoppel,
which has equitable concepts to it,
that that's res judicata for Northeastern.
They cannot say that we do not have any development rights
on Parcel 18-1A.
It's not true.
So in our-
-: But I don't understand that argument.
I thought your position was that the prior case
was about a different parcel, 3A and B.
Owens: Exactly.
-: How could it be binding as to 1A?
-: Because in her findings, she said
that we had rights on Parcel 18-1A.
-: Even though that was not the lot.
-: Because Northeastern argue at trial
that in exchange for CPA's giving up her rights
in 18-3A,
they would transfer them to 18-1A.
So therefore, Northeastern is precluded at this point,
and I will submit to the court, it's res judicata,
that that issue has been resolved by the court.
And under the doctrine of equitable estoppel,
they can no longer say that.
So our argument that,
as far as Justice Kafker's question about Count I,
it's for breach of contract,
the position of CPA, that clearly was sham petitioning
because, number one, we do have rights
on Parcel 18-1A.
They petitioned the Boston Planning & Development Agency
saying we had no rights on Parcel 18-1A.
So I submit to the court,
that's why it was clearly sham petitioning,
in response to your question.
Also, Your Honor, in addition to that,
as result of the litigation
with Judge Sanders,
Northeastern was able to take Parcel 3A,
strike that, 18-3A and B out of the institutional plan
and agree that they would do a hotel
on Parcel 1A.
So our second count for breach of contract
has to deal with, number one,
there was an initial second amended sale
and construction agreement that was executed
on June 30th, 1990.
Now, Northeastern wants to argue
that this revoked the original
sale, construction agreement.
That's true, in part.
If Northeastern did not build the garage
with CPA development rights,
the initial agreement would be enforced,
full force in effect.
But more importantly, in the Second Amended
and Statement Sale Construction Agreement,
what it says is that,
if I may just have one moment, Your Honor.
What it says is that this agreement
is the final expression of
and contains the entire agreement between the parties
with respect to the subject matter hereof
and supersedes all prior understandings
and agreements with respect thereto.
Nothing in this agreement, however,
shall affect the independent validity
of the PAD cooperation agreement.
That's a planned area development agreement.
Which agreement shall survive
as separate and binding obligation on the parties thereto.
Now, as a result of that,
that was the
second agreement,
which is dated January 1st,
2007.
This is the Boston Redevelopment Authority Amended
and Restated Development Plan
for Planned Development Area 34.
And what does it say?
It says Northeastern University
in partnership with Columbia Plaza Associates,
its successors and assigns developer,
intends to proceed with construction on Parcel 1A,
currently anticipated for use as a hotel.
And then it says the second page, developer-
-: Counsel, all of that, I think, is in the record, right?
-: Yes. -: Yeah, so I guess,
just to give you one last opportunity,
do you have anything
that you would wanna educate the court on
as to prong one of the anti-SLAPP statute,
whether or not, when you have a mixed account
that alleges mixed petitioning and non-petitioning activity,
whether or not that would meet the prong one
of the anti-SLAPP statute?
-: Well, I say my position would be
that in this case, since, strike that,
since CPA clearly demonstrated that it was fraud petitioning
on the part of Northeastern, we had a very-
-: You're relying on the second prong?
-: Yes, yes. -: Okay.
All right, thank you.
-: But importantly, it's also, Your Honor,
it's very important at this point
to talk about our other items in this case,
which have to deal with
Parcel 18.
My client, and also, we had the development rights
of the entire Parcel 18.
Even the former BRA Director, McCann,
testified at trial that CPA has developmental rights
on all of Parcel 18, even to this day.
And also said that,
Justice Sanders said that Northeastern
never requested any order
extinguishing those rights.
-: Did you appeal Judge Sanders' order,
the 2013 order?
-: Yes, that one appealed.
There was a rescript opinion in the appeals court
and had nothing to do with Parcel 18-1A.
-: Right, but you're arguing right now that she got it wrong
as to 3A and 3B 'cause you have all of Parcel 18
was supposed to be developed.
-: Exactly, exactly.
And our two breach of contract actions
are based upon the sale construction agreement,
which survives.
We also have the agreement
of the Boston Planning & Development Agency
that we are the developer for Parcel 18,
which right now is contemplating as a hotel.
And if I may, most respectfully, Your Honor,
can I just have one more minute?
Thank you, one minute, quickly.
The whole purpose of Linkage was to provide opportunity
for the black community.
What happened?
Northeastern, 1 International Place,
over $300 million,
the garage, over 500, strike that, $200 million.
CPA received less than
$500,000.
That was not the purpose.
The phase that Northeastern now wants to do
that they petitioned
for a 26-story high-rise apartment
that's going to cater to upper-end students, more money.
It's gonna be in excess of $300 million.
So Northeastern had the benefit
of almost a billion dollars of real estate,
and CPA got 500,000.
That was not the purpose.
That was not the purpose of Linkage.
That was not the purpose of the various agreements
that have been produced in this matter.
It's not the intent of the construction and sale agreement.
And Your Honor, in the final agreement,
I think, most respectfully,
Justice Connolly did not address
or read all of the submissions,
excuse me, strike that, that she was given,
because clearly it was sham petitioning
and had no apply to what my client did.
Thank you very much. -: Thank you so much.
Okay, Attorney Lapp.
-: Chief Justice, associate justices,
may it please the court,
Daryl Lapp on behalf of Northeastern.
The last time that Columbia Plaza had any rights,
actual rights in the development of Parcel 18,
was in 1997, over 25 years ago.
There was a time-
-: Which counts did you successfully dismiss
on the special motion?
-: On the special motion, Judge Connolly
allowed our motion with respect to Counts VII and VIII,
which were the two 93A, I'm sorry,
on Count VI, the fraud- -: Okay, I thought so.
-: I got this wrong.
-: False representation. -: Count VI is the fraud
charge.
And so much of VII and VIII,
as was based on our 2017 letter
to the BPDA,
in which we responded to CPA's assertion to the BPDA
that they had development rights.
-: So that raises the first question for us,
and we'll give you a chance
to respond, Mr. Owens, at the end,
but we're gonna try to focus on the anti-SLAPP for a bit.
So one of the things she does is she carves up the counts,
and she's doing exactly what we said in Blanchard.
So I'm not criticizing her,
but that creates all kinds of complexity
that we're struggling with.
The language that we've used before Blanchard was solely.
So if it's solely based, and we return to that standard,
what happens to those counts?
'Cause again, she dismisses parts of VII and VIII,
but we're wondering whether this should be a solely,
meaning we're not gonna parse these counts on Count I.
How would that work in your case
and with what Justice Connolly did here?
Is that clear, and if it's not-
-: I think so, Your Honor.
I'd answer it a couple of different ways.
First of all, I would say it's our position that
all of the case here,
all of the claims in all of the counts
are based solely upon Northeastern's petitioning activity.
-: Let me read you from Justice Connolly's decision,
'cause I figured you might be going there.
She writes, CPA's claims, however,
are not based on Northeastern's petitioning.
They are based on Northeastern
seeking to develop Parcel 18-1A without CPA,
thereby denying CPA its alleged right
to participate in the development of Parcel 18-1A
or reasonable compensation.
Simply because CPA warned about Northeast conduct
that led to the filing of CPA's complaint
does not mean that CPA's claims against Northeastern
are based solely on Northeastern's petition activities.
And she uses that to dismiss,
to say the special motion to dismiss is denied
as to I, II, III, IV, V, and IX and X.
So why is that wrong?
-: It's wrong because in this case, all of the claims,
not just the two breach of contract claims,
but all of the counts and all of the claims
within the counts are based upon two things.
They're based upon the 2017 letter that we sent to the BPDA,
in which we refuted CPA's claims to development rights
and specifically referenced Judge Sanders' decision
and what we continue to believe that decision means.
And secondly, all the claims are based
on our 2019 statement of intention to the BPDA to begin-
-: But Justice Connolly says no, they're really based on,
and I'm not saying who's right, I'm just saying,
she's saying they're really based on the fact that Linkage
gave CPA some kind of endless rights to this,
to be a player in this, the whole thing.
I think that's what she's saying.
-: I agree with you that what Justice Connolly was saying
was there are parts of this complaint
that are about CPA asserting a right
to develop parts of Parcel 18,
and they are seeking to vindicate that purported right.
And she found, I disagree with this,
but she found a way to distinguish that
from other aspects of the complaint
that were, in her view, squarely based on,
solely based on my client's petitioning activity.
-: Are you appealing any part of the motion to dismiss
that was denied?
-: We did not cross-appeal.
-: You did not, okay. -: We did not.
-: All right, so sticking to the parts
that are actually before us on appeal,
which are the allowance of the special motion to dismiss,
in part, on Count VII and VIII,
what's your position on that?
Is it possible to save a, is it 93A?
Yeah, 93A claims.
Can you carve those out,
the part that's based on petitioning
and the part that's not based on petitioning?
Or do you have to look at the course of conduct?
-: We can, insofar as your question started with,
let's focus on what we're here to either affirm or reverse,
the court, in our view,
clearly should affirm Judge Connolly's ruling
that at least that part of the claims
that are based upon my client's 2017 letter to the BPDA,
that those are claims that are solely based
on petitioning activity.
Those are claims that are solely based
on Northeastern University asserting a position
to the regulators whose approval they need
in order to go forward with any development project.
She was clearly right about that.
-: Did that letter overstate what Judge Sanders found?
-: Absolutely not, Your Honor, absolutely not.
What Judge Sanders found was that,
as every other judge who's looked at this has found,
starting with Judge Connors back at the beginning
of the earlier lawsuit through Judge Sanders
through the appeals court,
which affirmed her ruling on this issue in the earlier case,
that CPA had no actual right
to participate in the development of Parcel 18-3A.
They brought the earlier case
asserting that my client had violated their rights
by developing 18-3A and 3B
on Northeastern's own without involving them.
That's how they brought that case.
Every judge who's looked at this case
has come to the same conclusion.
By the time the bank foreclosed
on these properties back in 1997,
and when Northeastern bought them out of foreclosure,
CPA no longer had any actual right to participate
in the development of 3A, 3B, or anything else.
-: Okay, so that's the important part,
the or anything else.
You say that Sanders is writ large all of Parcel 18?
-: What Judge Sanders went on to find was this,
she said Columbia Plaza has no right
to participate in the development of 18-3A.
Northeastern was trying to involve CPA
in the development of the remaining sub-parcel,
which by that point was 18-1A,
not because it had to do so,
but because it was trying to honor the intentions
of the original Linkage Program.
That's why she was careful to refer to inchoate rights.
The inchoate right that Columbia Plaza had
was the right to be considered by Northeastern
as a potential development partner.
Northeastern had the right to identify itself
or any co-venture, including a co-venture with CPA,
as a developer of the remaining sub-parcel.
And what Judge Sanders went on to find was this,
she said insofar as CPA had any inchoate right
that continues in relation to developing a hotel,
it forfeited those rights by failing to engage
with Northeastern at every invitation,
all of which happened after the 2007 development plan.
At 2007, so 2007 is the moment where Northeastern says,
"We no longer wanna try to develop a hotel on 3A.
"We wanna put a dormitory on 3A and 3B."
The BRA approved that plan.
Northeastern said at that time,
"It is our intention to try to develop a hotel on 18-1A
"in partnership with CPA, not because we have to,
"but because we want to."
And what Judge Sanders found
was whatever inchoate right CPA had
to be considered as a development partner,
they forfeited it by refusing at every turn
to engage with Northeastern.
-: So this is the 2008 conduct.
-: The 2008 conduct, the 2009 conduct.
It goes all the way through 2012.
That part of her opinion is about nothing but 18-1A.
And so when my client went to,
in response to Columbia Plaza's petitioning,
my client exercised its rights of petitioning
and went to the BPA and said, "No, they're not correct.
"They don't have a right to participate
"in the development of 18-1A.
"They're wrong for all sorts of reasons,
"including, but not limited to,
"the meaning of Judge Sanders' ruling in the earlier case."
-: After you won the motion to dismiss, in part,
on VII and VIII, Count VII and VIII, the 93A,
what was left?
-: Nothing was left because Judge Connolly entered a,
we moved to dismiss the entire case on anti-SLAPP grounds.
-: Yes, you lost.
-: Or in the alternative, 12(b)(6),
-: I see. -: They cross-moved,
they opposed our motion
and cross-moved for summary judgment.
We said, "No, they don't get summary judgment.
"We get summary judgment."
And so what Judge Connolly did was she entered one ruling,
which had three pieces.
We got some dismissed on anti-SLAPP grounds,
we got other counts dismissed on Rule 12(b)(6) grounds,
and whatever was left, we got rid of on summary judgment.
So the whole case was disposed of in that moment.
-: Thank you, that's really helpful.
-: And it was done in a count-by-count way, right?
I know you've-
-: Even more specifically, it was done claim by claim
within counts. -: Right, right.
And if we're revisiting that structure,
but it worked here, right?
So maybe- -: Yes.
No part of the case survived, right.
-: And again, but like one of the issues from the prior case,
and you're not arguing the prior case,
but had to do with if a bunch of the petitioning activity
is without any merit, do you dismiss
the whole ball of wax?
You have views on that or?
-: My view is that-
-: 'Cause you have no axe to grind here
'cause you won on the individual ones.
-: Right. -: What is your understanding
of anti-SLAPP law on that issue?
-: My own view would be that it is open to the court
at the motion stage to review the complaint, claim by claim,
count by count, claim by claim.
And if there are any claims
that are based on petitioning activity,
then the moving party has met their stage one burden.
And I think, to me, it's always been significant to note
that the statute uses that word claim.
-: Right. -: And so it suggests
that if a claim-by-claim focus is appropriate
and if, this is not that case, but-
-: But what are you reading into?
What is your difference between a claim and a count?
-: I just think it's interesting to me
that the legislature didn't use the word cause of action,
all right, which might be a count.
They chose the smallest piece.
-: You could have a claim and multiple counts.
Breach of contract could be violated two different ways
or however you pleaded, but it's the claim.
-: Well, that's one way it could be a claim.
They could claim, well, they do, actually,
like in this case, they claim
that we breached a contract with them
in relation to the 1999 agreement
by doing several different things.
Same with 93A, and Judge Connolly
parsed it sort of issue by issue, claim by claim.
I think, I mean, I think the answer to the question-
-: Count by count, or claim, oh, I see.
So you're saying a claim is a factual allegation,
whereas a count might be the legal remedy.
-: Right, the 93A count
included claims based on our 2017 petitioning
and claims based on our 2019 petitioning,
and Judge Connolly split it up.
I think there is, it's not this case,
there is a case in which some of the claims
could be barred by the anti-SLAPP statute,
and some would not be.
-: Well, Blanchard would be one, right?
The "Globe" claims were potentially barred,
whereas the internal email was not.
-: That would be a good example.
-: So we've seen that. -: We've seen it.
-: But what about the claims,
or I should stop using that word,
what about the allegations
where there's a continuing course of conduct,
some of which is petitioning
and some of which is not petitioning.
I don't know if you have a view on that,
like the Reichenbach case that the appeals court addressed,
or the Haverhill case where there was a bunch of conduct,
some of which is petitioning
and some of which is not petitioning,
that were needed to establish the legal count
that formed the basis of the plaintiff's allegations.
-: Right, we didn't take a position on that issue
because we didn't need to for purposes of this case.
It seems to me that if there is a way to parse out-
-: If there's a way to parse out, then we have Blanchard one.
-: Right. -: If there's not a way
to parse out, the question is what do we do?
And the answer is I guess it doesn't relate to your case.
-: The answer is it doesn't relate to my case.
I think that one thing we certainly see
is the very strong legislative intent
that petitioning activity be protected.
And if it were difficult to parse,
I think there's an argument to be made
that the whole thing gets dismissed
under the anti-SLAPP statute.
We ask that the court affirm the rulings below
on both the dismissal of CPA's claims
and the award of attorney's fees and costs
under the anti-SLAPP statute.