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SJC-13405,
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Columbia Plaza Associates, Inc.
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v. Northeastern University.
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Good morning, Your Honor, Chief Justice Budd
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and associate justices of Supreme Judicial Court.
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Thank you very much for your kind attention today.
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I represent Columbia Plaza Associates,
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which is a non-profit, community-based group.
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Initially, I'm going to talk
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about a little of the background
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as to why we are here today.
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I think everybody's interested in the anti-SLAPP portion
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of the argument, so-
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Okay.
Just 'cause I know
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it's gonna-
Well, if I may, Your Honor,
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because there are other issues that I think,
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I will address the SLAPP issue as my last argument,
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but prior to that, I would like to address the
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statute under which Linkage created Parcel 18.
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And if I can say very briefly,
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we are talking about Roxbury, Massachusetts.
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It has a population which is 90% black.
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It has the poorest
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rate of people of color in,
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it is 50% higher than the whites.
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Roxbury per capita is less than half of the city average,
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and the 1/3 people are living in color.
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And I say that to say that Parcel 18
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was intended to be this engine
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that was going to revitalize the Roxbury community.
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That's what Parcel 18 was all about.
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And so what happened?
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What we have here is a parcel-to-parcel linkage,
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which is appendix.
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And what this was,
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this was a situation where in the '80s,
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there was a decision made by the mayor of Boston,
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Mayor Flynn and Governor Dukakis,
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that this construction boom in Downtown Boston,
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it never affected the poorest part of Cambridge,
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I'm sorry, Boston.
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So what are we going to do?
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We're going to talk about
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and enact this parcel-to-parcel Linkage Program.
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And what that meant is that anyone
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who developed a piece of property in downtown
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had to develop a less desirable piece of property
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in Roxbury.
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So what happened?
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There were five parcels.
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They were all parking lots
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that City of Boston owned.
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They disposed of all four.
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One remaining, Kingston/Bedford was the only parcel left.
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And Governor Dukakis and Mayor Flynn said,
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"We've gotta do something about this.
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"We're gonna have to have a Linkage Program
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"that's going to be the first in the country,
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"the first in Boston that we're going to have
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"to deal with this unequal disparity
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"between white and black in Boston."
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That was the Linkage Program.
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So what happened?
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They established
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a Challenge Track,
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and what that meant is that back in the '80s,
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we're going to put this on fast track
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to determine what are the needs of the minority community,
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and what are we gonna do?
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We're gonna talk about housing, employment,
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jobs for minority people, minority contractors,
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healthcare, childcare,
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to improve the people of Roxbury.
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So my client, Columbia Plaza Associates,
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is successor to Metropolitan Structures.
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And Met Structures had the developmental rights
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of Parcel 18.
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I went with Ken Guscott in to Chicago
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in the late '80s,
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and we negotiate a purchase of Met Structures,
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developmental rights in Parcel 18.
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I think the background's very helpful,
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but it would be, we have a limited amount of time.
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I'd like you to go through your counts for a second
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and explain to me as best you can,
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'cause I've got, Count I is claim
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for the breach of the 1990 agreement.
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Count II is the breach of the 2007.
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Count III is breach of the implied covenant.
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Count VII and VIII are Chapter 93A.
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It would be very helpful to us
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'cause this case is before us because we're very interested
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in trying to improve our anti-SLAPP jurisprudence.
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And your case is important to us
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because it elucidates prong one of the anti-SLAPP.
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So talk me through your different counts
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and why they're based on petitioning activity,
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'cause that's actually the most important thing to us.
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Your briefs cover the other things very well,
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but that's a focal point for this court today.
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Well, when we deal with Count I,
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I think it's very important, if I may, most respectfully,
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to talk about parcel-to-parcel linkage
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because that's the basis of-
We get that.
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Our Count I.
The whole case is grounded-
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And what happened?
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As you know, there was a prior litigation
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between Columbia Plaza and Northeastern.
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And unfortunately, most respectfully,
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Justice Connolly did not read the
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attachments.
Although,
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Justice Connolly decides, in your favor,
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a number of the counts
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on the anti-SLAPP grounds, doesn't she?
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So you don't wanna dump Justice Connolly so quickly.
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Well, if I may, Your Honor,
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under judicial estoppel,
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which has an equity component, what happened?
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There were findings of fact made by Judge Sanders
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that applied to this position.
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And what happened, what Judge Sanders found
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that number one, and Northeastern knew about it,
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that it came before her.
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And I'm reading from her findings of fact
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and conclusions of law,
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October 16th, 1916 for jury waived trial
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on the sole remaining count of the verified complaint,
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Count VII, alleging violation of Chapter 93A.
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We had filed a breach of contract action
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because in the prior litigation,
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Northeastern's claim, that was successful,
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that in return for the developmental rights
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on Parcel 1A,
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CPA agreed to take Parcel 3A out
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of the institutional master plan
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and in return would be a developer with my client
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for Parcel 1A was at that time was a hotel.
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What happened, what Northeastern did,
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they petitioned the BRA,
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or should say the Boston Planning & Development Agency,
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and they said that my client had no whatsoever rights
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in Parcel 18, to quote from Judge
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Sanders.
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"At no time did Northeastern suggest
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"that it would not participate with CPA
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"in development of a hotel.
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"Indeed, it was quite the opposite."
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Mr. Owens, am I wrong that Judge Sanders,
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your position is Judge Sanders' opinion
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reflected Parcels 18-3A and 18-3B
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did not impact the one at issue here, at 18-1A.
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Exactly.
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What was before her was a 93A count.
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That was it.
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It was not litigated as to Parcel 18-3A.
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1A, right?
1A.
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It was not part of it at all.
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And she clearly states, "At no time did Northeastern suggest
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"that it would not participate in development of hotel,
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"which was quite the opposite," she says.
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Then she goes on to say, "In January 11th, 2007,
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"the BRA formally approved the amended
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"and restated development plan.
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"So it's a construction of a hotel on Parcel 1A.
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"That plan made it clear that Northeastern
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"would construct that building on the parcel
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"in partnership with CPA,
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"expressly identified in the doc as the developer."
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That's what she found, yet Northeastern
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petitioned the Boston Planning & Development Agency
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saying that CPA had no rights
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in Parcel 18-1A.
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Based on the Sanders decision.
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Exactly, no, yeah.
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She said the opposite.
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And I submit to the court, most respectfully,
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she also said that Northeastern stated
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that both CPA and Northeastern would be developer
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for any hotel located on Parcel 18-1A.
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This was a true statement.
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Northeastern agreed even today that CPA has no rights
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in connection with development of parcel
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and does not seek an order that would extinguish them.
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She said we had rights.
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They petitioned the Boston Planning
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and said that we don't have rights.
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That is the basis of our contract action
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in Count I, breach of contract.
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And I submit to the court, most respectfully,
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that under the doctrine of judicial estoppel,
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which has equitable concepts to it,
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that that's res judicata for Northeastern.
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They cannot say that we do not have any development rights
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on Parcel 18-1A.
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It's not true.
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So in our-
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But I don't understand that argument.
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I thought your position was that the prior case
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was about a different parcel, 3A and B.
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Exactly.
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How could it be binding as to 1A?
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Because in her findings, she said
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that we had rights on Parcel 18-1A.
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Even though that was not the lot.
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Because Northeastern argue at trial
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that in exchange for CPA's giving up her rights
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in 18-3A,
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they would transfer them to 18-1A.
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So therefore, Northeastern is precluded at this point,
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and I will submit to the court, it's res judicata,
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that that issue has been resolved by the court.
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And under the doctrine of equitable estoppel,
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they can no longer say that.
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So our argument that,
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as far as Justice Kafker's question about Count I,
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it's for breach of contract,
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the position of CPA, that clearly was sham petitioning
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because, number one, we do have rights
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on Parcel 18-1A.
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They petitioned the Boston Planning & Development Agency
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saying we had no rights on Parcel 18-1A.
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So I submit to the court,
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that's why it was clearly sham petitioning,
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in response to your question.
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Also, Your Honor, in addition to that,
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as result of the litigation
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with Judge Sanders,
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Northeastern was able to take Parcel 3A,
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strike that, 18-3A and B out of the institutional plan
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and agree that they would do a hotel
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on Parcel 1A.
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So our second count for breach of contract
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has to deal with, number one,
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there was an initial second amended sale
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and construction agreement that was executed
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on June 30th, 1990.
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Now, Northeastern wants to argue
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that this revoked the original
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sale, construction agreement.
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That's true, in part.
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If Northeastern did not build the garage
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with CPA development rights,
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the initial agreement would be enforced,
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full force in effect.
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But more importantly, in the Second Amended
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and Statement Sale Construction Agreement,
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what it says is that,
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if I may just have one moment, Your Honor.
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What it says is that this agreement
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is the final expression of
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and contains the entire agreement between the parties
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with respect to the subject matter hereof
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and supersedes all prior understandings
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and agreements with respect thereto.
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Nothing in this agreement, however,
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shall affect the independent validity
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of the PAD cooperation agreement.
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That's a planned area development agreement.
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Which agreement shall survive
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as separate and binding obligation on the parties thereto.
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Now, as a result of that,
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that was the
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second agreement,
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which is dated January 1st,
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2007.
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This is the Boston Redevelopment Authority Amended
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and Restated Development Plan
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for Planned Development Area 34.
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And what does it say?
270
00:15:23.340 --> 00:15:26.850
It says Northeastern University
271
00:15:26.850 --> 00:15:29.970
in partnership with Columbia Plaza Associates,
272
00:15:29.970 --> 00:15:32.580
its successors and assigns developer,
273
00:15:32.580 --> 00:15:37.380
intends to proceed with construction on Parcel 1A,
274
00:15:37.380 --> 00:15:42.153
currently anticipated for use as a hotel.
275
00:15:43.890 --> 00:15:46.950
And then it says the second page, developer-
276
00:15:46.950 --> 00:15:49.470
Counsel, all of that, I think, is in the record, right?
277
00:15:49.470 --> 00:15:51.180
Yes.
Yeah, so I guess,
278
00:15:51.180 --> 00:15:53.130
just to give you one last opportunity,
279
00:15:53.130 --> 00:15:55.470
do you have anything
280
00:15:55.470 --> 00:15:57.780
that you would wanna educate the court on
281
00:15:57.780 --> 00:16:00.420
as to prong one of the anti-SLAPP statute,
282
00:16:00.420 --> 00:16:03.180
whether or not, when you have a mixed account
283
00:16:03.180 --> 00:16:07.680
that alleges mixed petitioning and non-petitioning activity,
284
00:16:07.680 --> 00:16:10.560
whether or not that would meet the prong one
285
00:16:10.560 --> 00:16:11.943
of the anti-SLAPP statute?
286
00:16:12.870 --> 00:16:16.410
Well, I say my position would be
287
00:16:16.410 --> 00:16:20.280
that in this case, since, strike that,
288
00:16:20.280 --> 00:16:25.280
since CPA clearly demonstrated that it was fraud petitioning
289
00:16:25.560 --> 00:16:28.800
on the part of Northeastern, we had a very-
290
00:16:28.800 --> 00:16:30.480
You're relying on the second prong?
291
00:16:30.480 --> 00:16:31.950
Yes, yes.
Okay.
292
00:16:31.950 --> 00:16:32.963
All right, thank you.
293
00:16:32.963 --> 00:16:35.670
But importantly, it's also, Your Honor,
294
00:16:35.670 --> 00:16:37.980
it's very important at this point
295
00:16:37.980 --> 00:16:42.930
to talk about our other items in this case,
296
00:16:42.930 --> 00:16:45.100
which have to deal with
297
00:16:47.430 --> 00:16:48.693
Parcel 18.
298
00:16:49.680 --> 00:16:54.120
My client, and also, we had the development rights
299
00:16:54.120 --> 00:16:56.820
of the entire Parcel 18.
300
00:16:56.820 --> 00:17:01.820
Even the former BRA Director, McCann,
301
00:17:02.040 --> 00:17:07.040
testified at trial that CPA has developmental rights
302
00:17:07.260 --> 00:17:12.260
on all of Parcel 18, even to this day.
303
00:17:13.140 --> 00:17:15.873
And also said that,
304
00:17:18.420 --> 00:17:21.300
Justice Sanders said that Northeastern
305
00:17:21.300 --> 00:17:24.340
never requested any order
306
00:17:25.890 --> 00:17:27.660
extinguishing those rights.
307
00:17:27.660 --> 00:17:30.333
Did you appeal Judge Sanders' order,
308
00:17:32.005 --> 00:17:33.930
the 2013 order?
309
00:17:33.930 --> 00:17:35.490
Yes, that one appealed.
310
00:17:35.490 --> 00:17:39.510
There was a rescript opinion in the appeals court
311
00:17:39.510 --> 00:17:43.773
and had nothing to do with Parcel 18-1A.
312
00:17:45.090 --> 00:17:47.790
Right, but you're arguing right now that she got it wrong
313
00:17:47.790 --> 00:17:51.120
as to 3A and 3B 'cause you have all of Parcel 18
314
00:17:51.120 --> 00:17:52.334
was supposed to be developed.
315
00:17:52.334 --> 00:17:53.970
Exactly, exactly.
316
00:17:53.970 --> 00:17:57.480
And our two breach of contract actions
317
00:17:57.480 --> 00:18:01.710
are based upon the sale construction agreement,
318
00:18:01.710 --> 00:18:03.210
which survives.
319
00:18:03.210 --> 00:18:06.810
We also have the agreement
320
00:18:06.810 --> 00:18:11.810
of the Boston Planning & Development Agency
321
00:18:12.690 --> 00:18:15.570
that we are the developer for Parcel 18,
322
00:18:15.570 --> 00:18:20.280
which right now is contemplating as a hotel.
323
00:18:20.280 --> 00:18:22.854
And if I may, most respectfully, Your Honor,
324
00:18:22.854 --> 00:18:24.483
can I just have one more minute?
325
00:18:25.560 --> 00:18:27.723
Thank you, one minute, quickly.
326
00:18:28.920 --> 00:18:33.270
The whole purpose of Linkage was to provide opportunity
327
00:18:33.270 --> 00:18:34.890
for the black community.
328
00:18:34.890 --> 00:18:35.940
What happened?
329
00:18:35.940 --> 00:18:39.363
Northeastern, 1 International Place,
330
00:18:40.320 --> 00:18:43.080
over $300 million,
331
00:18:43.080 --> 00:18:48.080
the garage, over 500, strike that, $200 million.
332
00:18:48.586 --> 00:18:51.790
CPA received less than
333
00:18:53.377 --> 00:18:55.680
$500,000.
334
00:18:55.680 --> 00:18:58.740
That was not the purpose.
335
00:18:58.740 --> 00:19:02.910
The phase that Northeastern now wants to do
336
00:19:02.910 --> 00:19:04.440
that they petitioned
337
00:19:04.440 --> 00:19:09.440
for a 26-story high-rise apartment
338
00:19:09.450 --> 00:19:13.500
that's going to cater to upper-end students, more money.
339
00:19:13.500 --> 00:19:16.770
It's gonna be in excess of $300 million.
340
00:19:16.770 --> 00:19:19.140
So Northeastern had the benefit
341
00:19:19.140 --> 00:19:22.800
of almost a billion dollars of real estate,
342
00:19:22.800 --> 00:19:25.777
and CPA got 500,000.
343
00:19:27.000 --> 00:19:28.770
That was not the purpose.
344
00:19:28.770 --> 00:19:30.900
That was not the purpose of Linkage.
345
00:19:30.900 --> 00:19:33.720
That was not the purpose of the various agreements
346
00:19:33.720 --> 00:19:36.210
that have been produced in this matter.
347
00:19:36.210 --> 00:19:40.350
It's not the intent of the construction and sale agreement.
348
00:19:40.350 --> 00:19:42.513
And Your Honor, in the final agreement,
349
00:19:43.890 --> 00:19:46.110
I think, most respectfully,
350
00:19:46.110 --> 00:19:48.780
Justice Connolly did not address
351
00:19:48.780 --> 00:19:52.950
or read all of the submissions,
352
00:19:52.950 --> 00:19:55.890
excuse me, strike that, that she was given,
353
00:19:55.890 --> 00:19:59.250
because clearly it was sham petitioning
354
00:19:59.250 --> 00:20:04.250
and had no apply to what my client did.
355
00:20:05.430 --> 00:20:07.493
Thank you very much.
Thank you so much.
356
00:20:13.830 --> 00:20:15.123
Okay, Attorney Lapp.
357
00:20:18.180 --> 00:20:20.310
Chief Justice, associate justices,
358
00:20:20.310 --> 00:20:21.690
may it please the court,
359
00:20:21.690 --> 00:20:24.183
Daryl Lapp on behalf of Northeastern.
360
00:20:27.300 --> 00:20:31.770
The last time that Columbia Plaza had any rights,
361
00:20:31.770 --> 00:20:35.430
actual rights in the development of Parcel 18,
362
00:20:35.430 --> 00:20:39.300
was in 1997, over 25 years ago.
363
00:20:39.300 --> 00:20:40.350
There was a time-
364
00:20:40.350 --> 00:20:44.070
Which counts did you successfully dismiss
365
00:20:44.070 --> 00:20:46.140
on the special motion?
366
00:20:46.140 --> 00:20:48.640
On the special motion, Judge Connolly
367
00:20:50.520 --> 00:20:55.237
allowed our motion with respect to Counts VII and VIII,
368
00:20:56.460 --> 00:21:00.630
which were the two 93A, I'm sorry,
369
00:21:00.630 --> 00:21:03.804
on Count VI, the fraud-
Okay, I thought so.
370
00:21:03.804 --> 00:21:05.050
I got this wrong.
371
00:21:05.050 --> 00:21:05.970
False representation.
Count VI is the fraud
372
00:21:05.970 --> 00:21:07.170
charge.
373
00:21:07.170 --> 00:21:12.060
And so much of VII and VIII,
374
00:21:12.060 --> 00:21:16.770
as was based on our 2017 letter
375
00:21:16.770 --> 00:21:18.510
to the BPDA,
376
00:21:18.510 --> 00:21:23.473
in which we responded to CPA's assertion to the BPDA
377
00:21:23.473 --> 00:21:24.306
that they had development rights.
378
00:21:24.306 --> 00:21:27.330
So that raises the first question for us,
379
00:21:27.330 --> 00:21:28.350
and we'll give you a chance
380
00:21:28.350 --> 00:21:30.210
to respond, Mr. Owens, at the end,
381
00:21:30.210 --> 00:21:33.960
but we're gonna try to focus on the anti-SLAPP for a bit.
382
00:21:33.960 --> 00:21:38.960
So one of the things she does is she carves up the counts,
383
00:21:39.420 --> 00:21:42.180
and she's doing exactly what we said in Blanchard.
384
00:21:42.180 --> 00:21:44.370
So I'm not criticizing her,
385
00:21:44.370 --> 00:21:48.340
but that creates all kinds of complexity
386
00:21:50.790 --> 00:21:52.413
that we're struggling with.
387
00:21:56.339 --> 00:22:00.810
The language that we've used before Blanchard was solely.
388
00:22:00.810 --> 00:22:05.810
So if it's solely based, and we return to that standard,
389
00:22:08.580 --> 00:22:10.890
what happens to those counts?
390
00:22:10.890 --> 00:22:14.610
'Cause again, she dismisses parts of VII and VIII,
391
00:22:14.610 --> 00:22:18.630
but we're wondering whether this should be a solely,
392
00:22:18.630 --> 00:22:23.103
meaning we're not gonna parse these counts on Count I.
393
00:22:24.360 --> 00:22:26.610
How would that work in your case
394
00:22:26.610 --> 00:22:29.013
and with what Justice Connolly did here?
395
00:22:30.030 --> 00:22:31.800
Is that clear, and if it's not-
396
00:22:31.800 --> 00:22:33.570
I think so, Your Honor.
397
00:22:33.570 --> 00:22:35.160
I'd answer it a couple of different ways.
398
00:22:35.160 --> 00:22:39.760
First of all, I would say it's our position that
399
00:22:42.930 --> 00:22:45.000
all of the case here,
400
00:22:45.000 --> 00:22:48.630
all of the claims in all of the counts
401
00:22:48.630 --> 00:22:52.320
are based solely upon Northeastern's petitioning activity.
402
00:22:52.320 --> 00:22:54.690
Let me read you from Justice Connolly's decision,
403
00:22:54.690 --> 00:22:57.210
'cause I figured you might be going there.
404
00:22:57.210 --> 00:23:00.090
She writes, CPA's claims, however,
405
00:23:00.090 --> 00:23:03.240
are not based on Northeastern's petitioning.
406
00:23:03.240 --> 00:23:05.250
They are based on Northeastern
407
00:23:05.250 --> 00:23:10.080
seeking to develop Parcel 18-1A without CPA,
408
00:23:10.080 --> 00:23:12.600
thereby denying CPA its alleged right
409
00:23:12.600 --> 00:23:16.260
to participate in the development of Parcel 18-1A
410
00:23:16.260 --> 00:23:18.360
or reasonable compensation.
411
00:23:18.360 --> 00:23:21.840
Simply because CPA warned about Northeast conduct
412
00:23:21.840 --> 00:23:24.840
that led to the filing of CPA's complaint
413
00:23:24.840 --> 00:23:27.750
does not mean that CPA's claims against Northeastern
414
00:23:27.750 --> 00:23:30.750
are based solely on Northeastern's petition activities.
415
00:23:30.750 --> 00:23:33.813
And she uses that to dismiss,
416
00:23:34.920 --> 00:23:37.470
to say the special motion to dismiss is denied
417
00:23:37.470 --> 00:23:41.730
as to I, II, III, IV, V, and IX and X.
418
00:23:41.730 --> 00:23:44.070
So why is that wrong?
419
00:23:44.070 --> 00:23:49.070
It's wrong because in this case, all of the claims,
420
00:23:49.710 --> 00:23:51.990
not just the two breach of contract claims,
421
00:23:51.990 --> 00:23:54.720
but all of the counts and all of the claims
422
00:23:54.720 --> 00:23:57.960
within the counts are based upon two things.
423
00:23:57.960 --> 00:24:02.160
They're based upon the 2017 letter that we sent to the BPDA,
424
00:24:02.160 --> 00:24:05.730
in which we refuted CPA's claims to development rights
425
00:24:05.730 --> 00:24:08.790
and specifically referenced Judge Sanders' decision
426
00:24:08.790 --> 00:24:12.570
and what we continue to believe that decision means.
427
00:24:12.570 --> 00:24:14.610
And secondly, all the claims are based
428
00:24:14.610 --> 00:24:19.560
on our 2019 statement of intention to the BPDA to begin-
429
00:24:19.560 --> 00:24:23.790
But Justice Connolly says no, they're really based on,
430
00:24:23.790 --> 00:24:25.890
and I'm not saying who's right, I'm just saying,
431
00:24:25.890 --> 00:24:30.480
she's saying they're really based on the fact that Linkage
432
00:24:30.480 --> 00:24:35.220
gave CPA some kind of endless rights to this,
433
00:24:35.220 --> 00:24:37.953
to be a player in this, the whole thing.
434
00:24:38.820 --> 00:24:41.100
I think that's what she's saying.
435
00:24:41.100 --> 00:24:44.880
I agree with you that what Justice Connolly was saying
436
00:24:44.880 --> 00:24:48.570
was there are parts of this complaint
437
00:24:48.570 --> 00:24:52.920
that are about CPA asserting a right
438
00:24:52.920 --> 00:24:56.010
to develop parts of Parcel 18,
439
00:24:56.010 --> 00:24:59.670
and they are seeking to vindicate that purported right.
440
00:24:59.670 --> 00:25:01.320
And she found, I disagree with this,
441
00:25:01.320 --> 00:25:03.330
but she found a way to distinguish that
442
00:25:03.330 --> 00:25:06.390
from other aspects of the complaint
443
00:25:06.390 --> 00:25:09.360
that were, in her view, squarely based on,
444
00:25:09.360 --> 00:25:12.720
solely based on my client's petitioning activity.
445
00:25:12.720 --> 00:25:17.610
Are you appealing any part of the motion to dismiss
446
00:25:17.610 --> 00:25:19.680
that was denied?
447
00:25:19.680 --> 00:25:21.420
We did not cross-appeal.
448
00:25:21.420 --> 00:25:23.130
You did not, okay.
We did not.
449
00:25:23.130 --> 00:25:24.690
All right, so sticking to the parts
450
00:25:24.690 --> 00:25:27.150
that are actually before us on appeal,
451
00:25:27.150 --> 00:25:31.080
which are the allowance of the special motion to dismiss,
452
00:25:31.080 --> 00:25:34.020
in part, on Count VII and VIII,
453
00:25:34.020 --> 00:25:36.600
what's your position on that?
454
00:25:36.600 --> 00:25:41.130
Is it possible to save a, is it 93A?
455
00:25:41.130 --> 00:25:42.813
Yeah, 93A claims.
456
00:25:46.440 --> 00:25:48.123
Can you carve those out,
457
00:25:49.200 --> 00:25:50.577
the part that's based on petitioning
458
00:25:50.577 --> 00:25:52.620
and the part that's not based on petitioning?
459
00:25:52.620 --> 00:25:55.020
Or do you have to look at the course of conduct?
460
00:25:57.810 --> 00:26:01.200
We can, insofar as your question started with,
461
00:26:01.200 --> 00:26:05.220
let's focus on what we're here to either affirm or reverse,
462
00:26:05.220 --> 00:26:06.330
the court, in our view,
463
00:26:06.330 --> 00:26:09.600
clearly should affirm Judge Connolly's ruling
464
00:26:09.600 --> 00:26:12.240
that at least that part of the claims
465
00:26:12.240 --> 00:26:16.860
that are based upon my client's 2017 letter to the BPDA,
466
00:26:16.860 --> 00:26:19.350
that those are claims that are solely based
467
00:26:19.350 --> 00:26:21.180
on petitioning activity.
468
00:26:21.180 --> 00:26:23.130
Those are claims that are solely based
469
00:26:23.130 --> 00:26:27.510
on Northeastern University asserting a position
470
00:26:27.510 --> 00:26:30.390
to the regulators whose approval they need
471
00:26:30.390 --> 00:26:32.610
in order to go forward with any development project.
472
00:26:32.610 --> 00:26:34.920
She was clearly right about that.
473
00:26:34.920 --> 00:26:37.920
Did that letter overstate what Judge Sanders found?
474
00:26:37.920 --> 00:26:40.500
Absolutely not, Your Honor, absolutely not.
475
00:26:40.500 --> 00:26:43.590
What Judge Sanders found was that,
476
00:26:43.590 --> 00:26:46.830
as every other judge who's looked at this has found,
477
00:26:46.830 --> 00:26:49.050
starting with Judge Connors back at the beginning
478
00:26:49.050 --> 00:26:51.960
of the earlier lawsuit through Judge Sanders
479
00:26:51.960 --> 00:26:53.610
through the appeals court,
480
00:26:53.610 --> 00:26:58.230
which affirmed her ruling on this issue in the earlier case,
481
00:26:58.230 --> 00:27:03.230
that CPA had no actual right
482
00:27:03.930 --> 00:27:07.590
to participate in the development of Parcel 18-3A.
483
00:27:07.590 --> 00:27:09.780
They brought the earlier case
484
00:27:09.780 --> 00:27:13.380
asserting that my client had violated their rights
485
00:27:13.380 --> 00:27:16.410
by developing 18-3A and 3B
486
00:27:16.410 --> 00:27:19.230
on Northeastern's own without involving them.
487
00:27:19.230 --> 00:27:21.153
That's how they brought that case.
488
00:27:21.990 --> 00:27:24.180
Every judge who's looked at this case
489
00:27:24.180 --> 00:27:26.370
has come to the same conclusion.
490
00:27:26.370 --> 00:27:29.070
By the time the bank foreclosed
491
00:27:29.070 --> 00:27:31.320
on these properties back in 1997,
492
00:27:31.320 --> 00:27:34.200
and when Northeastern bought them out of foreclosure,
493
00:27:34.200 --> 00:27:38.640
CPA no longer had any actual right to participate
494
00:27:38.640 --> 00:27:41.580
in the development of 3A, 3B, or anything else.
495
00:27:41.580 --> 00:27:43.260
Okay, so that's the important part,
496
00:27:43.260 --> 00:27:44.460
the or anything else.
497
00:27:44.460 --> 00:27:48.933
You say that Sanders is writ large all of Parcel 18?
498
00:27:50.670 --> 00:27:54.690
What Judge Sanders went on to find was this,
499
00:27:54.690 --> 00:27:57.720
she said Columbia Plaza has no right
500
00:27:57.720 --> 00:28:00.363
to participate in the development of 18-3A.
501
00:28:01.320 --> 00:28:05.880
Northeastern was trying to involve CPA
502
00:28:05.880 --> 00:28:08.640
in the development of the remaining sub-parcel,
503
00:28:08.640 --> 00:28:11.130
which by that point was 18-1A,
504
00:28:11.130 --> 00:28:13.170
not because it had to do so,
505
00:28:13.170 --> 00:28:15.330
but because it was trying to honor the intentions
506
00:28:15.330 --> 00:28:17.370
of the original Linkage Program.
507
00:28:17.370 --> 00:28:21.720
That's why she was careful to refer to inchoate rights.
508
00:28:21.720 --> 00:28:24.300
The inchoate right that Columbia Plaza had
509
00:28:24.300 --> 00:28:27.510
was the right to be considered by Northeastern
510
00:28:27.510 --> 00:28:29.310
as a potential development partner.
511
00:28:29.310 --> 00:28:31.620
Northeastern had the right to identify itself
512
00:28:31.620 --> 00:28:35.610
or any co-venture, including a co-venture with CPA,
513
00:28:35.610 --> 00:28:37.800
as a developer of the remaining sub-parcel.
514
00:28:37.800 --> 00:28:40.650
And what Judge Sanders went on to find was this,
515
00:28:40.650 --> 00:28:44.340
she said insofar as CPA had any inchoate right
516
00:28:44.340 --> 00:28:47.550
that continues in relation to developing a hotel,
517
00:28:47.550 --> 00:28:51.090
it forfeited those rights by failing to engage
518
00:28:51.090 --> 00:28:53.760
with Northeastern at every invitation,
519
00:28:53.760 --> 00:28:58.680
all of which happened after the 2007 development plan.
520
00:28:58.680 --> 00:29:03.217
At 2007, so 2007 is the moment where Northeastern says,
521
00:29:03.217 --> 00:29:06.007
"We no longer wanna try to develop a hotel on 3A.
522
00:29:06.007 --> 00:29:08.407
"We wanna put a dormitory on 3A and 3B."
523
00:29:09.510 --> 00:29:11.580
The BRA approved that plan.
524
00:29:11.580 --> 00:29:12.817
Northeastern said at that time,
525
00:29:12.817 --> 00:29:17.817
"It is our intention to try to develop a hotel on 18-1A
526
00:29:18.007 --> 00:29:21.157
"in partnership with CPA, not because we have to,
527
00:29:21.157 --> 00:29:22.230
"but because we want to."
528
00:29:22.230 --> 00:29:23.700
And what Judge Sanders found
529
00:29:23.700 --> 00:29:26.550
was whatever inchoate right CPA had
530
00:29:26.550 --> 00:29:29.430
to be considered as a development partner,
531
00:29:29.430 --> 00:29:33.150
they forfeited it by refusing at every turn
532
00:29:33.150 --> 00:29:34.483
to engage with Northeastern.
533
00:29:34.483 --> 00:29:36.420
So this is the 2008 conduct.
534
00:29:36.420 --> 00:29:39.480
The 2008 conduct, the 2009 conduct.
535
00:29:39.480 --> 00:29:41.400
It goes all the way through 2012.
536
00:29:41.400 --> 00:29:46.400
That part of her opinion is about nothing but 18-1A.
537
00:29:46.440 --> 00:29:48.780
And so when my client went to,
538
00:29:48.780 --> 00:29:53.040
in response to Columbia Plaza's petitioning,
539
00:29:53.040 --> 00:29:55.590
my client exercised its rights of petitioning
540
00:29:55.590 --> 00:29:57.967
and went to the BPA and said, "No, they're not correct.
541
00:29:57.967 --> 00:29:59.617
"They don't have a right to participate
542
00:29:59.617 --> 00:30:01.747
"in the development of 18-1A.
543
00:30:01.747 --> 00:30:04.387
"They're wrong for all sorts of reasons,
544
00:30:04.387 --> 00:30:06.367
"including, but not limited to,
545
00:30:06.367 --> 00:30:10.620
"the meaning of Judge Sanders' ruling in the earlier case."
546
00:30:10.620 --> 00:30:13.380
After you won the motion to dismiss, in part,
547
00:30:13.380 --> 00:30:15.870
on VII and VIII, Count VII and VIII, the 93A,
548
00:30:15.870 --> 00:30:16.893
what was left?
549
00:30:17.970 --> 00:30:22.320
Nothing was left because Judge Connolly entered a,
550
00:30:22.320 --> 00:30:25.156
we moved to dismiss the entire case on anti-SLAPP grounds.
551
00:30:25.156 --> 00:30:26.912
Yes, you lost.
552
00:30:26.912 --> 00:30:28.920
Or in the alternative, 12(b)(6),
553
00:30:28.920 --> 00:30:30.960
I see.
They cross-moved,
554
00:30:30.960 --> 00:30:31.950
they opposed our motion
555
00:30:31.950 --> 00:30:34.230
and cross-moved for summary judgment.
556
00:30:34.230 --> 00:30:37.537
We said, "No, they don't get summary judgment.
557
00:30:37.537 --> 00:30:38.910
"We get summary judgment."
558
00:30:38.910 --> 00:30:42.270
And so what Judge Connolly did was she entered one ruling,
559
00:30:42.270 --> 00:30:43.560
which had three pieces.
560
00:30:43.560 --> 00:30:46.800
We got some dismissed on anti-SLAPP grounds,
561
00:30:46.800 --> 00:30:49.770
we got other counts dismissed on Rule 12(b)(6) grounds,
562
00:30:49.770 --> 00:30:53.010
and whatever was left, we got rid of on summary judgment.
563
00:30:53.010 --> 00:30:56.580
So the whole case was disposed of in that moment.
564
00:30:56.580 --> 00:30:57.480
Thank you, that's really helpful.
565
00:30:57.480 --> 00:31:01.110
And it was done in a count-by-count way, right?
566
00:31:01.110 --> 00:31:02.640
I know you've-
567
00:31:02.640 --> 00:31:04.620
Even more specifically, it was done claim by claim
568
00:31:04.620 --> 00:31:06.543
within counts.
Right, right.
569
00:31:07.770 --> 00:31:11.643
And if we're revisiting that structure,
570
00:31:14.190 --> 00:31:16.470
but it worked here, right?
571
00:31:16.470 --> 00:31:17.580
So maybe-
Yes.
572
00:31:17.580 --> 00:31:19.593
No part of the case survived, right.
573
00:31:20.580 --> 00:31:24.630
And again, but like one of the issues from the prior case,
574
00:31:24.630 --> 00:31:26.280
and you're not arguing the prior case,
575
00:31:26.280 --> 00:31:30.450
but had to do with if a bunch of the petitioning activity
576
00:31:30.450 --> 00:31:34.060
is without any merit, do you dismiss
577
00:31:36.934 --> 00:31:39.000
the whole ball of wax?
578
00:31:39.000 --> 00:31:41.760
You have views on that or?
579
00:31:41.760 --> 00:31:43.050
My view is that-
580
00:31:43.050 --> 00:31:44.790
'Cause you have no axe to grind here
581
00:31:44.790 --> 00:31:47.160
'cause you won on the individual ones.
582
00:31:47.160 --> 00:31:48.840
Right.
What is your understanding
583
00:31:48.840 --> 00:31:51.990
of anti-SLAPP law on that issue?
584
00:31:51.990 --> 00:31:54.960
My own view would be that it is open to the court
585
00:31:54.960 --> 00:31:58.710
at the motion stage to review the complaint, claim by claim,
586
00:31:58.710 --> 00:32:00.900
count by count, claim by claim.
587
00:32:00.900 --> 00:32:03.630
And if there are any claims
588
00:32:03.630 --> 00:32:08.460
that are based on petitioning activity,
589
00:32:08.460 --> 00:32:11.550
then the moving party has met their stage one burden.
590
00:32:11.550 --> 00:32:14.280
And I think, to me, it's always been significant to note
591
00:32:14.280 --> 00:32:17.010
that the statute uses that word claim.
592
00:32:17.010 --> 00:32:18.150
Right.
And so it suggests
593
00:32:18.150 --> 00:32:20.520
that if a claim-by-claim focus is appropriate
594
00:32:20.520 --> 00:32:23.127
and if, this is not that case, but-
595
00:32:23.127 --> 00:32:25.833
But what are you reading into?
596
00:32:27.270 --> 00:32:30.513
What is your difference between a claim and a count?
597
00:32:31.410 --> 00:32:34.140
I just think it's interesting to me
598
00:32:34.140 --> 00:32:37.020
that the legislature didn't use the word cause of action,
599
00:32:37.020 --> 00:32:39.750
all right, which might be a count.
600
00:32:39.750 --> 00:32:44.129
They chose the smallest piece.
601
00:32:44.129 --> 00:32:46.710
You could have a claim and multiple counts.
602
00:32:46.710 --> 00:32:50.100
Breach of contract could be violated two different ways
603
00:32:50.100 --> 00:32:52.803
or however you pleaded, but it's the claim.
604
00:32:53.880 --> 00:32:55.560
Well, that's one way it could be a claim.
605
00:32:55.560 --> 00:32:58.830
They could claim, well, they do, actually,
606
00:32:58.830 --> 00:33:00.180
like in this case, they claim
607
00:33:00.180 --> 00:33:04.680
that we breached a contract with them
608
00:33:04.680 --> 00:33:06.750
in relation to the 1999 agreement
609
00:33:06.750 --> 00:33:08.853
by doing several different things.
610
00:33:09.780 --> 00:33:11.640
Same with 93A, and Judge Connolly
611
00:33:11.640 --> 00:33:15.150
parsed it sort of issue by issue, claim by claim.
612
00:33:15.150 --> 00:33:16.530
I think, I mean, I think the answer to the question-
613
00:33:16.530 --> 00:33:19.200
Count by count, or claim, oh, I see.
614
00:33:19.200 --> 00:33:22.470
So you're saying a claim is a factual allegation,
615
00:33:22.470 --> 00:33:25.710
whereas a count might be the legal remedy.
616
00:33:25.710 --> 00:33:27.810
Right, the 93A count
617
00:33:27.810 --> 00:33:30.930
included claims based on our 2017 petitioning
618
00:33:30.930 --> 00:33:33.270
and claims based on our 2019 petitioning,
619
00:33:33.270 --> 00:33:35.910
and Judge Connolly split it up.
620
00:33:35.910 --> 00:33:38.370
I think there is, it's not this case,
621
00:33:38.370 --> 00:33:41.670
there is a case in which some of the claims
622
00:33:41.670 --> 00:33:43.710
could be barred by the anti-SLAPP statute,
623
00:33:43.710 --> 00:33:44.880
and some would not be.
624
00:33:44.880 --> 00:33:46.740
Well, Blanchard would be one, right?
625
00:33:46.740 --> 00:33:50.340
The "Globe" claims were potentially barred,
626
00:33:50.340 --> 00:33:53.370
whereas the internal email was not.
627
00:33:53.370 --> 00:33:54.960
That would be a good example.
628
00:33:54.960 --> 00:33:57.220
So we've seen that.
We've seen it.
629
00:33:57.220 --> 00:33:58.110
But what about the claims,
630
00:33:58.110 --> 00:33:59.640
or I should stop using that word,
631
00:33:59.640 --> 00:34:02.070
what about the allegations
632
00:34:02.070 --> 00:34:04.260
where there's a continuing course of conduct,
633
00:34:04.260 --> 00:34:05.460
some of which is petitioning
634
00:34:05.460 --> 00:34:06.960
and some of which is not petitioning.
635
00:34:06.960 --> 00:34:08.370
I don't know if you have a view on that,
636
00:34:08.370 --> 00:34:11.940
like the Reichenbach case that the appeals court addressed,
637
00:34:11.940 --> 00:34:16.230
or the Haverhill case where there was a bunch of conduct,
638
00:34:16.230 --> 00:34:17.490
some of which is petitioning
639
00:34:17.490 --> 00:34:19.740
and some of which is not petitioning,
640
00:34:19.740 --> 00:34:24.600
that were needed to establish the legal count
641
00:34:26.460 --> 00:34:30.333
that formed the basis of the plaintiff's allegations.
642
00:34:31.380 --> 00:34:33.510
Right, we didn't take a position on that issue
643
00:34:33.510 --> 00:34:35.730
because we didn't need to for purposes of this case.
644
00:34:35.730 --> 00:34:40.730
It seems to me that if there is a way to parse out-
645
00:34:40.890 --> 00:34:43.380
If there's a way to parse out, then we have Blanchard one.
646
00:34:43.380 --> 00:34:44.310
Right.
If there's not a way
647
00:34:44.310 --> 00:34:46.623
to parse out, the question is what do we do?
648
00:34:48.420 --> 00:34:50.563
And the answer is I guess it doesn't relate to your case.
649
00:34:50.563 --> 00:34:52.920
The answer is it doesn't relate to my case.
650
00:34:52.920 --> 00:34:54.870
I think that one thing we certainly see
651
00:34:54.870 --> 00:34:57.330
is the very strong legislative intent
652
00:34:57.330 --> 00:35:00.630
that petitioning activity be protected.
653
00:35:00.630 --> 00:35:03.633
And if it were difficult to parse,
654
00:35:05.400 --> 00:35:07.650
I think there's an argument to be made
655
00:35:07.650 --> 00:35:09.420
that the whole thing gets dismissed
656
00:35:09.420 --> 00:35:10.870
under the anti-SLAPP statute.
657
00:35:18.270 --> 00:35:21.270
We ask that the court affirm the rulings below
658
00:35:21.270 --> 00:35:23.550
on both the dismissal of CPA's claims
659
00:35:23.550 --> 00:35:26.820
and the award of attorney's fees and costs
660
00:35:26.820 --> 00:35:28.270
under the anti-SLAPP statute.