Blanchard v. Steward Carney Hospital, Inc.

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SJC-12141
LYNNE BLANCHARD & others1 vs. STEWARD CARNEY HOSPITAL, INC., &
others.2
Suffolk. November 7, 2016. - May 23, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.3
"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government. Practice, Civil, Motion to dismiss. Words,
"Based on."
Civil action commenced in the Superior Court Department on
May 24, 2013.
Special motions to dismiss were heard by Linda E. Giles, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
1
Gail Donahoe, Gail Douglas-Candido, Kathleen Dwyer, Linda
Herr, Cheryl Hendrick, Kathleen Lang, Victoria Webster, and
Nydia Woods.
2
Steward Hospital Holdings, LLC; Steward Health Care
System, LLC; and William Walczak.
3
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
Jeffrey A. Dretler (Joseph W. Ambash also present) for the
defendants.
Dahlia C. Rudavsky (Ellen J. Messing also present) for the
plaintiffs.
Donald J. Siegel & Paige W. McKissock, for Massachusetts
AFL-CIO, amicus curiae, submitted a brief.
LENK, J. In the spring of 2011, following reports of abuse
at the adolescent psychiatric unit (unit) of Steward Carney
Hospital, Inc., then president of the hospital, William Walczak,
fired all of the registered nurses and mental health counsellors
who worked in the unit. Walczak subsequently issued statements,
both to the hospital's employees and to the Boston Globe
Newspaper Co. (Boston Globe), arguably to the effect that the
nurses had been fired based in part on their culpability for the
incidents that took place at the unit. The plaintiffs, nine of
the nurses who had been fired, then filed suit against the
defendants for, among other things, defamation.
The hospital defendants4 responded by filing a special
motion to dismiss the defamation claim pursuant to G. L. c. 231,
§ 59H, the "anti-SLAPP" statute. A Superior Court judge denied
the motion, concluding that the hospital defendants had failed
4
For convenience and, in particular, to distinguish them
from other defendants who were named in the complaint but are
not part of this appeal, we refer to Steward Carney Hospital,
Inc. Steward Hospital Holdings, LLC, Steward Health Care System,
LLC, and William Walczak as "the hospital defendants" or "the
defendants."
We refer to the plaintiffs as "the plaintiff nurses," "the
nurses," or "the plaintiffs" interchangeably as well.
3
to meet their threshold burden of showing that the claim was
based solely on their petitioning activity. The hospital
defendants filed an interlocutory appeal in the Appeals Court as
of right. See Fabre v. Walton, 436 Mass. 517, 521–522 (2002).
The Appeals Court then reversed the motion judge's decision in
part. See Blanchard v. Steward Carney Hosp., Inc., 89 Mass.
App. Ct. 97, 98 (2016). We granted the parties' applications
for further appellate review. We conclude that a portion of the
plaintiff nurses' defamation claim is based solely on the
hospital defendants' petitioning activity. The hospital
defendants as special movants thus having satisfied in part
their threshold burden under Duracraft v. Holmes Prods. Corp.,
427 Mass. 156, 167-168 (1998) (Duracraft), the matter must be
remanded to the Superior Court where the burden will shift to
the plaintiff nurses to make a showing adequate to defeat the
motion.
Under current case law, the plaintiff nurses, as nonmoving
parties, could defeat the special motion only by showing that
the hospital defendants' petitioning activity upon which a
portion of the plaintiff's defamation claim is based was a sham,
i.e., without a reasonable basis in fact or law, a showing that
the record suggests may be difficult to make. Insofar as the
record also suggests the possibility that the plaintiff nurses'
claim may not have been brought primarily to chill the hospital
4
defendants' legitimate exercise of their right to petition,
however, the case underscores a long recognized difficulty in
the statute. It is one rooted in the fact that both parties
enjoy the right to petition, including the right to seek redress
in the courts. The anti-SLAPP statute is meant to subject only
meritless SLAPP suits to expedited dismissal, yet it nonetheless
may be used to dismiss meritorious claims not intended primarily
to chill petitioning.
Because the statute as thus construed remains at odds with
evident legislative intent, and continues to raise
constitutional concerns, we take this opportunity to augment the
framework set forth in the Duracraft case (Duracraft framework)
by broadening the construction of the statutory term "based on."
While a nonmoving party may still defeat a special motion to
dismiss by demonstrating that the special movant's petitioning
activity is a sham, we hold that a nonmoving party's claim also
is not subject to dismissal as one solely based on a special
movant's petitioning activity if the nonmoving party can
establish that its claim was not "brought primarily to chill"
the special movant's legitimate exercise of its right to
petition. See Duracraft, 427 Mass. at 161 (1998), quoting 1994
House Doc. No. 1520. On remand, the plaintiff nurses may
attempt to make such a showing in satisfaction of their burden.
5
1. Background. The unit at Steward Carney Hospital, Inc.,
in Boston (hospital), is licensed by the Department of Mental
Health (DMH) and the Department of Public Health (DPH).5 In
April, 2011, there were four incidents involving alleged patient
abuse or neglect at the unit. The hospital immediately reported
these incidents to DMH, DPH, and the Department of Children and
Families. DMH commenced an investigation into the incidents,
and required that there be no new admissions to the unit. DMH
also considered revoking the hospital's license to operate the
unit pending the hospital's response to the reports of abuse.
The hospital soon placed all but a small number of unit
employees, including managers, nurses, and mental health
counsellors, on paid administrative leave. It also hired Scott
Harshbarger, then senior counsel at the law firm Proskauer
Rose LLP, to conduct an investigation into the incidents, to
recommend remedial actions, and to represent the hospital's
interests in its dealings with the State agencies. Upon
concluding his investigation, Harshbarger recommended to Walczak
that, in light of what he termed a "code of silence" amongst the
unit's staff, "it would be prudent to replace the current
5
The unit typically treats mentally and physically
challenged teenagers in "acute states," who are admitted from
other facilities as a "last resort." Many of them are under the
custody of the Department of Children and Families and have
little involvement with their families.
6
personnel in order to ensure quality care for these vulnerable
patients."
After reviewing Harshbarger's recommendation, Walczak
informed each of the plaintiff nurses that he was terminating
her employment. The following day, he sent an electronic mail
(e-mail) message to all hospital employees, which began by
noting that the hospital "has a rich tradition of providing
excellent care to [its] patients." After providing the
hospital's employees with credit for this successful commitment
to patient care, the message continued, in relevant part:
"Recently, I have become aware of the alleged
incidents where a number of [hospital] staff have not
demonstrated this steadfast commitment to patient care. I
have thoroughly investigated these allegations and have
determined that these individual employees have not been
acting in the best interest of their patients, the
hospital, or the community we serve. As a result, I have
terminated the employment of each of these individuals."
In a Boston Globe article about the incidents two days
after the plaintiff nurses were fired, Walczak was quoted as
saying that, when he read Harshbarger's report, he "decided to
replace the nurses and other staff on the unit."6 Walczak said
that the report recommended that he "start over on the unit" and
that his "goal [was] to make it the best unit in the state."
The article noted that Walczak "would not provide details of the
6
The article stated that Harshbarger had been investigating
an employee's alleged sexual assault of a patient and
"conditions on the 14-bed locked unit for extremely troubled
teens."
7
alleged assault or patient safety concerns, or comment on why
the entire staff was dismissed, given that the allegation
involved one employee and one patient." Approximately one month
later, the Boston Globe published another article on the
incidents at the hospital, quoting Walczak as stating that
"[t]he Harshbarger report indicated it wasn't a safe situation"
and stating that the report "underscored his decision to fire
the entire staff of the unit."
In June, 2011, DMH issued its reports on each of the four
incidents. The reports concerning the first three incidents
concluded that there had been wrongdoing by a single mental
health counsellor, while the fourth report concluded that
unspecified staff on duty during the incident had acted
improperly.7
2. Prior proceedings. In May, 2013, in a five-count
complaint brought against the hospital defendants, along with
7
In May, 2011, the union that represented the plaintiff
nurses, the Massachusetts Nurses Association, filed grievances
on behalf of each of the unit's nurses, including each of the
plaintiff nurses. Pursuant to the collective bargaining
agreement between the hospital and this nurses association, the
grievances were subject to arbitration. The first arbitration
involved five of the plaintiff nurses: Douglas, Hendrick, Herr,
Lang, and Woods. The arbitrator found in favor of the nurses
and ordered, inter alia, their reinstatement. The hospital
appealed from that ruling; the appeal is apparently still
pending.
8
Harshbarger and Proskauer Rose LLP (Proskauer defendants),8 the
plaintiff nurses claimed that the hospital defendants and the
Proskauer defendants had each defamed them. The plaintiff
nurses alleged, in one count of their complaint, that the
hospital defendants defamed them both by the e-mail message sent
to hospital employees announcing their terminations, as well as
by communications made to and published by the Boston Globe.
The plaintiff nurses asserted that such statements falsely
suggested that "after a thorough investigation, [Walczak] had
determined . . . that each of the terminated plaintiffs had
demonstrated inadequate commitment to patient care and that each
had provided such deficient patient care that her employment had
to be terminated."9
In their defamation claim against the Proskauer defendants,
the plaintiff nurses asserted that Harshbarger's preliminary and
8
The complaint also included a claim against the hospital
defendants for violation of the healthcare provider
whistleblower statute, G. L. c. 149, § 187, and plaintiffs Lang
and Donahoe claimed that the hospital defendants retaliated
against them for performing their obligations under the
mandatory reporting statute, G. L. c. 119, § 51A. In addition,
all of the plaintiff nurses asserted a claim of intentional or
reckless infliction of emotional distress against Harshbarger
and Proskauer Rose LLP.
9
The plaintiff nurses claimed that Walczak's "statements
implied the existence of undisclosed facts, namely, that the
decision to terminate each of the plaintiff nurses was based on
her actions in connection with undisclosed incidents involving
patients in the unit, which were known to Walczak and had been
'thoroughly investigated.'"
9
final written reports had defamed them by falsely suggesting
that they had "adhered to a 'code of silence,'" had failed to
report "a variety of problems, . . . including misconduct," of
which they were aware, and had been derelict in their duties in
a number of other respects.
Both sets of defendants responded by filing special motions
to dismiss the defamation counts under the anti-SLAPP statute.
See G. L. c. 231, § 59H.10 A Superior Court judge allowed the
Proskauer defendants' special motion to dismiss, but denied the
hospital defendants' motion. The hospital defendants appealed.11
The Appeals Court reversed in part, allowing the defendants'
special motion to dismiss with respect to Walczak's comments to
the Boston Globe, affirming the denial with respect to the e-
mail message, and denying the hospital's motion for attorney's
fees and costs. Blanchard, 89 Mass. App. Ct. at 98, 111 & n.14.
We granted the parties' cross applications for further appellate
review.
3. Discussion a. The anti-SLAPP statute. The
Legislature enacted the anti-SLAPP statute to counteract "SLAPP"
10
Both sets of defendants also filed motions to dismiss the
other claims under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754(1974). At a hearing on the motions to dismiss, the defendants
waived their motions under rule 12 (b) (6).
11
Defendants Harshbarger and Proskauer Rose LLP filed a
stipulation of dismissal prior to the proceedings in the Appeals
Court, and they have no role in this appeal.
10
suits, defined broadly as "lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances." Duracraft,
427 Mass. at 161, quoting 1994 House Doc. No. 1520. See G. L.
c. 231, § 59H. See also Cardno ChemRisk, LLC, v. Foytlin, 476
Mass. 479, 488 n.14 (2017) (explaining catalyst for
legislation). The main "objective of SLAPP suits is not to win
them, but to use litigation to intimidate opponents' exercise of
rights of petitioning and speech." Duracraft, supra. To
forestall such suits, the anti-SLAPP statute provides a
"procedural remedy for early dismissal of the disfavored"
lawsuits. Id. This remedy is the special motion to dismiss,
which can be brought prior to engaging in discovery, and is
intended to dispose of "civil claims, counterclaims, or cross
claims" that are based solely on a party's exercise of its right
to petition. See G. L. c. 231, § 59H. The statute also
mandates the award of attorney's fees to successful special
movants. Id.
To prevail on such a motion, a special movant, such as the
hospital defendants here, "must make a threshold showing through
pleadings and affidavits that the claims against it 'are "based
on" the petitioning activities alone and have no substantial
basis other than or in addition to the petitioning activities.'"
Fustolo v. Hollander, 455 Mass. 861, 865 (2010), quoting
11
Duracraft, supra at 167-168. See Fabre, 436 Mass. at 524
(special movant must demonstrate that "the only conduct
complained of is . . . petitioning activity").12 The anti-SLAPP
statute defines a party's exercise of its right to petition
broadly to include:
"[1] any written or oral statement made before or
submitted to a legislative, executive, or judicial body, or
any other governmental proceeding; [2] any written or oral
statement made in connection with an issue under
consideration or review by a legislative, executive, or
judicial body, or any other governmental proceeding; [3]
any statement reasonably likely to encourage consideration
or review of an issue by a legislative executive, or
judicial body or any other governmental proceeding; [4] any
statement reasonably likely to enlist public participation
in an effort to effect such consideration; or [5] any other
statement falling within constitutional protection of the
right to petition government."
G. L. c. 231, § 59H.
If the hospital defendants are able to make a threshold
showing that the plaintiff nurses' claim is based solely on the
hospital defendants' petitioning activities, the burden shifts
to the plaintiff nurses to establish "by a preponderance of the
evidence that the [hospital defendants] lacked any reasonable
12
The statute also requires a special movant to demonstrate
that it was exercising "its own right of petition" in both the
statutory and the constitutional sense. See Cardno ChemRisk,
LLC v. Foytlin, 476 Mass. 479, 486-489 (2017); G. L. c. 231,
§ 59H ("In any case in which a party asserts that the civil
claims, counterclaims, or cross claims against said party are
based on said party's exercise of its right of petition under
the [C]onstitution of the United States or of the
[C]ommonwealth, said party may bring a special motion to
dismiss").
12
factual support or any arguable basis in law for its petitioning
activity," Baker v. Parsons, 434 Mass. 543, 553-554 (2001), and
that the hospital defendants' sham petitioning activity caused
the plaintiff nurses "actual injury." G. L. c. 231, § 59H. See
Fustolo, 455 Mass. at 865.
b. Petitioning activity. As part of its threshold burden,
the hospital defendants must show that the conduct complained of
constitutes the exercise of its right to petition. See Baker,
434 Mass. at 550. The hospital defendants contend that the
motion judge erred in determining that Walczak's communications
to the Boston Globe and to the hospital employees did not
constitute petitioning activity under the anti-SLAPP statute.
The hospital defendants argue that Walczak's statements to the
Boston Globe, and his e-mail message to all hospital employees,
were the exercise of the hospital defendants' right to petition
because such statements were made "in connection with an issue
under consideration or review by a legislative, executive, or
judicial body, or any other governmental proceeding."13 See
G. L. c. 231, § 59H. Given that DMH was considering whether to
revoke the hospital's license to operate the unit when the
statements were made, the hospital defendants contend that both
communications were part of the hospital's efforts to maintain
13
The defendants do not contend that Walczak's
communications fall under any of the other definitions of
petitioning activity in the anti-SLAPP statute.
13
its license to operate the unit by demonstrating that it was
taking remedial steps.
The initial question before us is thus whether Walczak's
communications to the Boston Globe and to the hospital employees
were each made "in connection with" DMH's investigation of the
incidents and its decision regarding the hospital's license to
operate the unit, such that they constitute petitioning activity
under the anti-SLAPP statute. In determining whether statements
constitute petitioning, "we consider them in the over-all
context in which they are made." North Am. Expositions Co. Ltd.
Partnership v. Corcoran, 452 Mass. 852, 862 (2009). To fall
under the "in connection with" definition of petitioning under
the anti-SLAPP statute, a communication must be "made to
influence, inform, or at the very least, reach governmental
bodies -- either directly or indirectly." Id., quoting Global
NAPs, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600,
605 (2005). The key requirement of this definition of
petitioning is the establishment of a plausible nexus between
the statement and the governmental proceeding.
The archetypical demonstration of this nexus involves a
party's statement regarding an ongoing governmental proceeding
made directly to a governmental body. See, e.g., Office One,
Inc. v. Lopez, 437 Mass. 113, 123 (2002) (communications with
Federal Deposit Insurance Corporation seeking favorable outcome
14
constituted petitioning activity).14 Failing something this
clear cut, courts look to objective indicia of a party's intent
to influence a governmental proceeding. See North Am.
Expositions Co. Ltd. Partnership, 452 Mass. at 862-863
(statement was petitioning activity where context in which it
was made suggested it was intended to influence governmental
body). This intent to influence is manifested in statements
that are "closely and rationally related to the [governmental
proceeding]" and "in furtherance of the objective served by
governmental consideration of the issue under review." Plante
v. Wylie, 63 Mass. App. Ct. 151, 159 (2005). Contrast Global
NAPs, Inc., 63 Mass. App. Ct. at 607 (statements to newspaper
containing oblique reference to defendant's petitioning activity
not protected under anti-SLAPP statute); Burley v. Comets
Community Youth Ctr., Inc., 75 Mass. App. Ct. 818, 823 (2009)
(defendant failed to demonstrate "statements were made in
conjunction with its protected petitioning activity . . . as
opposed to being incidental observations that were not tied to
the petitioning activity in a direct way" [quotations and
citation omitted]).
14
Such activity also would fall under the first definition
of petitioning activity in the anti-SLAPP statute. See G. L.
c. 231, § 59H (defining petitioning activity as "any written or
oral statement made before or submitted to a legislative,
executive, or judicial body, or any other governmental
proceeding . . . .").
15
We turn to the two types of communications at issue here.
i. Statements to the Boston Globe. Walczak's statements
to the Boston Globe commented on DMH's inquiry into the
incidents of abuse at the unit, and the hospital's attempts to
address the situation. Walczak's comments had a plausible nexus
to DMH's investigation based on their content and the high
likelihood that they would influence or at least reach DMH.
Based on their content, it can be reasonably inferred that
Walczak's statements to the Boston Globe were intended to
demonstrate to DMH the hospital's public commitment to address
the underlying problems at the unit. It is undisputed that DMH
was considering whether to revoke the hospital's license to
operate the unit at the time that Walczak made his comments to
the Boston Globe. DMH's decision whether to do so turned on the
hospital's implementation of remedial steps to prevent future
incidents.15 The content of Walczak's statements directly
addresses DMH's concern.
In the first article, published on May 28, 2011, Walczak's
statements implied that he had decided to terminate the nurses'
employment as a remedial action, based on Harshbarger's
15
The then director of licensing at the Department of
Mental Health (DMH) testified at an arbitration hearing
regarding the nurses' claim for reinstatement to the unit that
the decision whether to revoke the hospital's license to operate
the unit centered on the hospital's "plan . . . to make [the
situation] right."
16
recommendation. He is quoted as stating that the Harshbarger
report described "serious concerns about patient safety and
quality of care on the unit" and that the report recommended he
"start over on the unit." Walczak's statements in the second
article, dated June 22, 2011, noted that the Harshbarger report
indicated "it wasn't a safe situation [at the unit]" and that
the reports of additional incidents "required a much deeper look
at what was going on in the unit."16 In both of these
statements, Walczak emphasized that he was following the advice
contained in the Harshbarger report in addressing the unit's
problems.
By making clear that the hospital was following
Harshbarger's recommendations, the statements communicated to
readers, likely including some of the licensing decision makers
at DMH, that progress was occurring at the hospital, and that
its license to operate the unit should not be revoked. These
statements were neither "tangential" nor "unrelated to
governmental involvement," Global NAPs, Inc., 63 Mass. App. Ct.
at 607, but rather went to the heart of a government agency's
decision whether to terminate the hospital's license to operate
the unit. The statements directly related to DMH's then-pending
investigation and, in particular, to DMH's decision whether to
16
The article noted that, at the time, DMH had confirmed
the first three incidents at the unit and was still
investigating the fourth asserted incident of abuse.
17
pull the plug on the hospital's license for the unit. Walczak's
statements can fairly be said to have been "closely and
rationally related" to DMH's investigation and "in furtherance
of the objective" of the hospital's petitioning -- the
preservation of the hospital's license to operate the unit.
Plante, 63 Mass. App. Ct. at 159.
Walczak's statements, moreover, were issued in a manner
that was likely to influence or, at the very least, reach DMH.
He made his statements to the Boston Globe, a newspaper "widely
circulated in Boston and throughout the Commonwealth." Brauer
v. Globe Newspaper Co., 351 Mass. 53, 54 (1966). Decision
makers at DMH, and members of the public wishing to weigh in on
the licensing decision, could reasonably have been expected to
read Walczak's statements. The timing of Walczak's statements
to the Boston Globe indicates, as well, a plausible nexus
between the communications and DMH's licensure decision, the
statements having been made while DMH's investigation was still
ongoing.
The plaintiff nurses contend that Walczak made the
statements primarily to defend the unit's reputation to the
public. This goal, however, hardly can be seen as unrelated to
the hospital's objective of convincing DMH to leave intact the
hospital's license to operate the unit. The greater the
public's confidence in and support for the hospital, the more
18
complex any decision to revoke the hospital's license to operate
the unit would become. Ulterior motives, in any event, do not
bear on the petitioning nature of the statements to the Boston
Globe. See North Am. Expositions Co. Ltd. Partnership, 452
Mass. at 863 ("the fact that . . . speech involves a commercial
motive does not mean it is not petitioning"). Accordingly, we
conclude that Walczak's statements to the Boston Globe were
protected petitioning activity under the anti-SLAPP statute.
ii. Internal e-mail message. In contrast, Walczak's e-
mail message to all hospital employees concerning the
termination of the plaintiff nurses' employment was not
petitioning activity. Neither the content of the e-mail
message, nor any evidence offered by the hospital defendants,
suggests any audience for the message other than hospital
employees. The explanation of troubling events at their
workplace that was presented to hospital employees in an e-mail
message by the hospital's president has no plausible nexus to
the hospital's efforts to sway DMH's licensing decision.
In this regard, the defendants have not shown that the e-
mail message to employees had reached, or was reasonably likely
to reach, DMH. A private statement to a select group of people
does not, without more, establish a plausible nexus to a
governmental proceeding. It stands to reason that statements
cannot be "in furtherance of" petitioning the government if they
19
are not reasonably geared to reaching it. Plante, 63 Mass. App.
Ct. at 159. The defendants have not shown that the hospital or
someone on its behalf had forwarded the e-mail message to DMH or
even had informed DMH that it had been sent to hospital
employees. Nor have the defendants shown that someone in the
hospital's employ receiving the e-mail message reasonably would
be expected to or did communicate its message to DMH. Walczak's
conclusory affidavit stating that he intended the e-mail message
to come to DMH's attention17 does not indicate any mechanism
through which the statement could arrive at the agency.18 See
Burley, 75 Mass. App. Ct. at 823-824 (defendants' message to
employees was not petitioning activity despite defendants'
contention that they intended message to be conveyed to police).
17
Walczak attested that he had sent the electronic mail (e-
mail) message "not only to communicate to the hospital employees
what was happening, but to give assurances to the regulatory
agencies" in the process of determining whether to revoke the
hospital's license to operate the unit "that the deficiencies
which ha[d] been reported on the [u]nit would not continue."
Yet the defendants fail to establish that DMH likely would have
encountered the message, let alone that what employees were told
would influence DMH's decision concerning the hospital's license
to operate the unit.
18
The defendants also note that, in his affidavit,
Harshbarger stated that he communicated to the general counsel
of DMH, "the action [that the hospital's] leadership was taking
in response to the [i]ncidents." Harshbarger's summation of the
hospital's efforts, however, does not affect the analysis of
whether Walczak's e-mail message was intended to or did
influence DMH.
20
Walczak's intent alone does not suffice in the circumstances to
establish the requisite nexus.
Moreover, nothing in the content of the e-mail message
itself, stating in essence that the terminated nurses deviated
from the hospital's "rich tradition of providing excellent care
to [its] patients," suggests that it was intended to influence
or reach DMH. The e-mail message begins by lauding the
hospital's "performance on national quality and safety
standards," and notes that the "employees and caregivers at" the
hospital are the reason for its exemplary performance. Walczak
then states that he had "thoroughly investigated" allegations
concerning the incidents at the unit, "determined that [the
plaintiff nurses] have not been acting in the best interest of
their patients, the hospital, or the community we serve," and
concluded by addressing the plaintiff nurses' termination.
There is nothing in this text to suggest that it was intended to
influence, inform, or reach anyone other than the hospital
employees to whom an explanation of concerning events at their
workplace was given.
In light of this, we conclude that while Walczak's
statements to the Boston Globe were protected petitioning
activity, his e-mail message to hospital employees was not an
exercise of the hospital defendants' right of petition.
21
c. The meaning of "based on." Given the foregoing, the
hospital defendants take the view that they have met their
threshold burden by showing that the portion of the defamation
claim based on the Boston Globe articles is solely based on such
petitioning activity. They maintain that, if the nurses cannot
show that this petitioning activity was, in essence, a sham, so
much of their claim as asserts that the Boston Globe statements
defamed them should be dismissed, with the plaintiff nurses made
to pay a proportionate amount of the defendants' legal fees and
costs. The plaintiff nurses, in contrast, maintain that,
because some of their unitary defamation claim rests on
nonpetitioning activity, the hospital defendants fail to show
that the defamation claim is solely based on the defendants'
petitioning activity.
Although we have said that a complaint should be evaluated
count by count for anti-SLAPP purposes, see Wenger v. Aceto, 451
Mass. 1, 9 (2008) (granting special motion to dismiss with
respect to two specific counts in nonmoving party's complaint),
we have not had occasion to consider whether, at the threshold
burden stage, the special movant can meet its burden by showing
that a portion of the nonmoving party's claim is based on
petitioning activity. Because the outcome of the threshold
burden inquiry so often proves dispositive of the special
motion, the permutations of that preliminary stage have largely
22
occupied the field of appellate consideration.19 This case
involves yet another variation on that theme. However, it also
involves more than that.
19
Twelve out of the seventeen cases decided by this court
and the majority of the cases decided by the Appeals Court that
address the anti-SLAPP statute in depth have centered on the
special movant's threshold burden. This appellate jurisprudence
has split the special movant's threshold burden into three
parts. First, the special movant must establish that its
complained of conduct is petitioning activity. See, e.g.,
Hanover v. New England Regional Council of Carpenters, 467 Mass.
587, 590-595 (2014); Marabello v. Boston Bark Corp., 463 Mass.
394, 397-400 (2012); North Am. Expositions Co. Ltd. Partnership
v. Corcoran, 452 Mass. 852, 861-862 (2009); Cadle Co. v.
Schlichtmann, 448 Mass. 242, 250 (2007); Global NAPs, Inc. v.
Verizon New England, Inc., 63 Mass. App. Ct. 600, 606-607
(2005). Second, the special movant must establish that the
activity is its own petitioning activity. See, e.g., Cardno
ChemRisk, LLC, 476 Mass. 485, 486 (2017); Fustolo v. Hollander,
455 Mass. 861, 869 (2010); Kobrin v. Gastfriend, 443 Mass. 327,
330 (2005). Third, the special movant must demonstrate that the
nonmoving party's claims are solely based on its petitioning
activity. See, e.g., Matter of the Discipline of Attorney, 442
Mass. 660, 673-674 (2004); Office One, Inc. v. Lopez, 437 Mass.
113, 121-123 (2002); Fabre v. Walton, 436 Mass. 517, 522-523
(2002); McLarnon v. Jokisch, 431 Mass. 343, 348 (2000);
Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 167-168
(1998).
Similarly, Appeals Court cases construing the anti-SLAPP
statute center chiefly on the nonmoving party's threshold
burden. See Chiulli v. Liberty Mut. Ins., Inc., 87 Mass. App.
Ct. 229, 234 (2015); Keystone Freight Corp. v. Bartlett Consol.,
Inc., 77 Mass. App. Ct. 304, 316 (2010); Brice Estates, Inc. v.
Smith, 76 Mass. App. Ct. 394, 396-397 (2010); Burley v. Comets
Community Youth Ctr., Inc., 75 Mass. App. Ct. 818, 823-824
(2009); Dickey v. Warren, 75 Mass. App. Ct. 585, 588-589 (2009),
cert. denied, 560 U.S. 926 (2010); Ehrlich v. Stern, 74 Mass.
App. Ct. 531, 537-538 (2009); Guiffrida v. High Country
Investor, Inc., 73 Mass. App. Ct. 225, 243 (2008); Moriarty v.
Mayor of Holyoke, 71 Mass. App. Ct. 442, 447-448 (2008); Fisher
v. Lint, 69 Mass. App. Ct. 360, 363-365 (2007); SMS Financial V,
LLC v. Conti, 68 Mass. App. Ct. 738, 745-747 (2007); Kalter v.
23
Each of the positions advanced by the parties as to what
solely based on should entail at the threshold burden stage has
some merit, but our resolution of that issue cannot reach or
settle the deeper problem that is laid bare in this appeal.
That problem is whether the plaintiff nurses' defamation claim
is, in fact, a "SLAPP" suit at all. Otherwise put, even if it
were shown that the Boston Globe based portion of the nurses'
defamation claim arises from and is, in that limited sense,
solely based on their hospital employer's quite legitimate
petitioning activity, it nevertheless remains unclear whether
this qualifies as a disfavored "SLAPP" suit meriting early
dismissal. Under current case law, the inquiry ends without
Wood, 67 Mass. App. Ct. 584, 586-591 (2006); Global NAPS, Inc.,
supra at 603-607; Wynne v. Creigle, 63 Mass. App. Ct. 246, 251-
255 (2005); Plante v. Wylie, 63 Mass. App. Ct. 151, 157-161
(2005); Adams v. Whitman, 62 Mass. App. Ct. 850, 852-858 (2005);
MacDonald v. Paton, 57 Mass. App. Ct. 290, 294-295 (2003);
Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 748-749 (2002).
By contrast, only a handful of cases from this court
address the nonmoving party's second-stage burden under the
anti-SLAPP statute in a substantial way. See Van Liew v.
Stansfield, 474 Mass. 31, 36-41 (2016); Benoit v. Frederickson,
454 Mass. 148, 153-154 (2009); Wenger v. Aceto, 451 Mass. 1, 6-9
(2008); Fabre, 436 Mass. at 524-525; Baker v. Parsons, 434 Mass.
543, 553-554 (2001). Similarly, only a smattering of Appeals
Court opinions address substantively the nonmoving party's
burden. See The Gillette Co. v. Provost, 91 Mass. App. Ct. 133,
137-140 (2017); Demoulas Super Mkts. v. Ryan, 70 Mass. App. Ct.
259, 263-268 (2007); DiPiero v. Burke, 70 Mass. App. Ct. 154,
158-161 (2007); Garabedian v. Westland, 59 Mass. App. Ct. 427,
434 (2003); Donovan v. Gardner, 50 Mass. App. Ct. 595, 599-601
(2000); Vittands v. Sudduth, 49 Mass. App. Ct. 401, 414-415
(2000).
24
permitting confirmation that the fundamental statutory concern
is satisfied, much like the proverbial unacknowledged elephant
in the room. To ensure that only "SLAPP" suits -- those without
merit primarily brought to chill legitimate petitioning
activities -- are subject to early dismissal and its attendant
financial penalties, we conclude that the statutory term "based
on" must be accorded broader meaning than it has at present.
We turn first, then, to what the threshold burden demands
of the special movant seeking early dismissal under the anti-
SLAPP statute. In essence, the Duracraft framework imposes the
threshold burden as an initial screening device, requiring the
special movant to show in the first instance that the claims
against it in fact arose only from its own petitioning
activities. It stands to reason that, in doing so, the special
movant must take the adverse complaint as it finds it, and
cannot fairly be expected to overcome the manner in which a
nonmoving party has chosen to structure its complaint. Thus,
however reasonable it may have been for the nurses to frame
their defamation claim against the hospital defendants as one
count including two types of communications, we agree with the
Appeals Court that, when ascertaining whether petitioning
activity is the sole basis of a claim, the structure of the
nonmoving party's complaint ordinarily cannot be dispositive of
the matter. See Blanchard, 89 Mass. App. Ct. at 111 n.13. Were
25
it otherwise, nonmoving parties could undercut the anti-SLAPP
statute and its salutary purpose by combining into a single
count claims that are based on both petitioning and
nonpetitioning activities. Where, as here, the claim structured
as a single count readily could have been pleaded as separate
counts, a special movant can meet its threshold burden with
respect to the portion of that count based on petitioning
activity.
That being said, the plaintiff nurses' contrary position as
to the scope of the threshold burden finds support in Erhlich v.
Stern, 74 Mass. App. Ct. 531, 536 (2009), which notes the
considerable potency of the sweeping early dismissal remedy
provided by the anti-SLAPP statute. In an effort to assure that
this remedy is confined only to suits meriting such harsh
treatment, the Appeals Court construed the threshold burden
strictly, stating that "the anti-SLAPP inquiry produces an all
or nothing result as to each count the complaint contains . . .
and the statute does not create a process for parsing counts to
segregate components that can proceed from those that cannot."
Id. While, as explained, we depart from the Ehrlich view of the
threshold burden, we recognize the well-founded concerns that
underlie it and that prompt us now to revisit the Duracraft
framework.
26
Under current law, there are only two ways for a nonmoving
party, such as the nurses here, to resist the early dismissal of
their claim as a "SLAPP" suit. One way is to argue that the
special movant has not met its threshold burden. Failing that,
the other way is to argue that the special movant's petitioning
activity was not legitimate but instead a sham, i.e., lacking
any reasonable basis in fact or law. Because it is often
difficult to make the latter showing,20 the dispositive issue
tends to be whether the special movant's threshold burden has
been met. But, as this case illustrates, even where that burden
has been met and the petitioning activity in question may be
entirely legitimate, such inquiry is not entirely adequate to
the task of determining whether the special motion should be
allowed.
Particularly in instances where, as here, the classic
indicia of a "SLAPP" suit, see Duracraft, 427 Mass. at 161-162,
20
Under current case law, in order to meet its second-stage
burden under the anti-SLAPP statute, a nonmoving party must, in
essence, demonstrate through pleadings and affidavits that there
is no credible factual or legal basis for the special movant's
petitioning activities. See Benoit, 454 Mass. at 154 n.7;
Wenger, 451 Mass. at 7-8. Given the high bar for nonmoving
parties that this generally represents, it is little wonder that
the plaintiff nurses focused almost entirely on the hospital
defendants' purported failure to meet their threshold burden.
See Blanchard, 89 Mass. App. Ct. at 109 (concluding that
plaintiff nurses did not attempt to make showing that hospital
defendants' statements to Boston Globe were "devoid of factual
or legal support" and thus failed to meet their second-stage
burden).
27
appear to be absent,21 the present framework does not provide
adequate means to distinguish between meritless claims targeting
legitimate petitioning activity and meritorious claims with no
such goal.22 It is only the former, the actual "SLAPP" suit,
that the Legislature intended to stop early in its tracks. The
Legislature did not intend the expedited remedy it provided, the
special motion to dismiss, to be used instead as a cudgel to
forestall and chill the legitimate claims -- also petitioning
activity -- of those who may truly be aggrieved by the sometimes
collateral damage wrought by another's valid petitioning
activity. We are mindful that the threshold burden was itself
crafted to address this underlying concern and its genesis
accordingly remains instructive.
21
Contrast Cardno ChemRisk, LLC, 476 Mass. at 480-483 &
n.10, where the plaintiff nonmoving party, an established
scientific consulting firm, brought defamation claims in two
States against individual environmental activists of modest
means, while not having brought such claims against parties of
apparent financial capacity and public stature who had published
similar allegedly defamatory statements. Following its receipt
of discovery from the individual defendants but before
responding to the defendants' discovery requests, and during the
pendency of the defendants' ultimately successful appeal from
the denial of their special motion to dismiss, the plaintiff
moved voluntarily to dismiss its lawsuit; the motion was denied.
Id. at 483 n.8.
22
The plaintiff nurses, for their part, maintain that they
supported the goal of the hospital defendants' petitioning,
which was to preserve the hospital's license to operate the
unit.
28
The threshold burden, not appearing in the anti-SLAPP
statute itself, was prudently imposed upon special movants as a
means of bridging the discrepancy between the statute's evident
purpose and its language and, thereby, of addressing
constitutional concerns otherwise raised. Duracraft, 427 Mass.
at 167-168. While the Legislature passed the anti-SLAPP statute
to counteract "meritless" lawsuits brought to chill a party's
petitioning activity, i.e., "SLAPP" suits, id. at 161, the
Duracraft court realized that the "statutory language fails to
track and implement such an objective." Id. at 166. See id. at
163 ("In the statute as enacted, the Legislature . . . did not
address concerns over its breadth and reach, and ignored its
potential uses in litigation far different from the typical
SLAPP suit").
The statute as written does not focus on ascertaining
whether the nonmoving party's claim is in fact a "SLAPP" suit.
Instead, it looks only to whether the special movant's own
legitimate petitioning activity forms the basis of that claim.
This leaves open the possibility that a special movant, whose
legitimate petitioning activity forms the basis of a meritorious
adverse claim that is not primarily geared toward chilling such
petitioning, may nonetheless use the special motion to eradicate
29
that nonmoving party's adverse claim.23 As has long been
recognized, this potential infringement of an "adverse party's
exercise of its right to petition, even when it is not engaged
in sham petitioning . . . has troubled judges and bedeviled the
statute's application." Duracraft, 427 Mass. at 166-167.24
23
The Illinois Supreme Court described the problem
succinctly when addressing Illinois's anti-SLAPP law, which in
many respects mirrors that of the Commonwealth. The court
wrote:
"The sham exception tests the genuineness of the
defendants' acts; it says nothing about the merits of the
plaintiff's lawsuit. It is entirely possible that
defendants could spread malicious lies about an individual
while in the course of genuinely petitioning the government
for a favorable result. For instance, in the case at bar,
plaintiff alleges that defendants defamed him by making
statements that plaintiff abused children, did not get
along with colleagues, and performed poorly at his job.
Assuming these statements constitute actionable defamation,
it does not follow that defendants were not genuinely
attempting to achieve a favorable governmental result by
pressuring the school board into firing the plaintiff. If
a plaintiff's complaint genuinely seeks redress for damages
from defamation or other intentional torts and, thus, does
not constitute a SLAPP, it is irrelevant whether the
defendants' actions were genuinely aimed at procuring
favorable government action, result, or outcome" (footnote
and quotations omitted).
Sandholm v. Kuecker, 2012 IL 111443, ¶ 53.
24
Both the United States Constitution and the Massachusetts
Declaration of Rights provide a right to petition that includes
the right to seek judicial resolution of disputes. Sahli v.
Bull HN Information Sys., Inc., 437 Mass. 696, 700-701 (2002)
(noting "constitutional right to seek judicial resolution of
disputes under the First Amendment to the United States
Constitution and art. 11 of the Massachusetts Declaration of
Rights"). See First Amendment ("Congress shall make no
law . . . abridging . . . the right of the people . . . to
30
To ameliorate this constitutional infirmity and to ensure
that only "SLAPP" suits are subject to dismissal, the Duracraft
court imposed upon special movants the burden of showing that
the claims against them are "solely based on" protected
petitioning activity. See Duracraft, 427 Mass. at 165, 167
("Because the Legislature intended to immunize parties from
claims 'based on' their petitioning activities, we adopt a
construction of 'based on' that would exclude motions brought
against meritorious claims with a substantial basis other than
or in addition to the petitioning activities implicated"). The
goal of this framework was to "distinguish meritless from
meritorious claims, as was intended by the Legislature." Id. at
168.
While the Duracraft framework limited the reach of the
statute and mitigated the problem, subsequent experience has
shown that it did not eliminate it. The statute continues to
permit, in certain circumstances, the expedited dismissal of a
nonmoving party's meritorious claim that does not seek primarily
to chill protected petitioning activity, i.e., non"SLAPP" suits.
petition the Government for a redress of grievances."); art. 11
("Every subject of the Commonwealth ought to find a certain
remedy, by having recourse to the laws, for all injuries or
wrongs which he may receive in his person, property, or
character"); art. 19 of the Massachusetts Declaration of Rights
("The people have a right . . . to request of the legislative
body, by the way of . . . petitions . . . redress of the wrongs
done them, and of the grievances they suffer"). See also
Kobrin, 443 Mass. at 333.
31
The reason the statute can still "be misused to allow motions
for expedited dismissal of nonfrivolous claims in contravention
of the Legislature's intent," Matter of the Discipline of an
Attorney, 442 Mass. 660, 673 (2004), is its exclusive focus on
the special movant's petitioning activity in determining whether
the nonmoving party's claim is a "SLAPP" suit. Without also
considering the nonmoving party's claim, however, a court cannot
adequately assess whether it is a meritless "SLAPP" suit aimed
primarily at chilling a special movant's right to petition or,
instead, a valid exercise of the nonmoving party's own right to
petition.
d. Augmenting the Duracraft framework. To ensure that the
anti-SLAPP statute will "distinguish meritless from meritorious
claims, as was intended by the Legislature," Duracraft, 427
Mass. at 168, we once again narrow the problematic sweep of the
statute by broadening the meaning of the term "based on." A
nonmoving party's claim is not subject to dismissal as one
"based on" a special movant's petitioning activity if, when the
burden shifts to it, the nonmoving party can establish that its
suit was not "brought primarily to chill" the special movant's
legitimate exercise of its right to petition. See Duracraft,
427 Mass. at 161, quoting 1994 House Doc. No. 1520. In other
words, a claim that is not a "SLAPP" suit will not be dismissed.
32
As a practical matter, the expedited special motion to
dismiss will proceed as follows, still in essentially two
stages, taking place early in the litigation and with limited
discovery available only by leave of court. See G. L. c. 231,
§ 59H. At the first stage, a special movant must demonstrate
that the nonmoving party's claims are solely based on its own
petitioning activities. This is the familiar Duracraft
threshold inquiry, which will remain unchanged. At the second
stage, if the special movant meets this initial burden, the
burden will shift, as it does now, to the nonmoving party. The
nonmoving party may still prevail, as at present, by
demonstrating that the special movant's petitioning activities
upon which the challenged claim is based lack a reasonable basis
in fact or law, i.e., constitute sham petitioning, and that the
petitioning activities at issue caused it injury. G. L. c. 231,
§ 59H.
If it cannot make this showing, however, the nonmoving
party may henceforth meet its second-stage burden and defeat the
special motion to dismiss by demonstrating in the alternative
that each challenged claim does not give rise to a "SLAPP" suit.
It may do so by demonstrating that each such claim was not
primarily brought to chill the special movant's legitimate
petitioning activities. To make this showing, the nonmoving
party must establish, such that the motion judge may conclude
33
with fair assurance, that its primary motivating goal in
bringing its claim, viewed in its entirety, was "not to
interfere with and burden defendants' . . . petition rights, but
to seek damages for the personal harm to [it] from [the]
defendants' alleged . . . [legally transgressive] acts."
Sandholm v. Kuecker, 2012 IL 111443, ¶ 57. The nonmoving party
must make this showing with respect to each such claim viewed as
a whole.25
In applying this standard, the motion judge, in the
exercise of sound discretion, is to assess the totality of the
circumstances pertinent to the nonmoving party's asserted
primary purpose in bringing its claim. The course and manner of
25
At the first stage of the anti-SLAPP inquiry, courts
assess whether the nonmoving party's claim is solely "based on"
the special movant's petitioning activity in the sense that the
nonmoving party's claim itself arises only from and complains
only of that petitioning activity. See Fabre, 436 Mass. at 524.
If the special movant meets this threshold burden, and the
nonmoving party then fails to show that such petitioning
activity was sham petitioning, the nonmoving party may now
attempt to establish, under the augmented Duracraft framework,
that its claim is not "based on" the special movant's legitimate
petitioning activity because its primary motivating goal in
bringing the claim was not to chill such petitioning. Because
at this stage the motion judge is to assess in a holistic
fashion whether the claim at issue is a "SLAPP" suit, the
nonmoving party's showing in this regard is as to the entirety
of its claim. Otherwise put, the plaintiff nurses on remand may
attempt to demonstrate that their primary motivating goal in
bringing a purportedly meritorious defamation claim against the
hospital defendants -- alleging as defamatory both the e-mail
message to employees and the Boston Globe articles -- was not to
chill the hospital defendants' legitimate exercise of their
right to petition government in aid of retaining the hospital's
licensure of the unit.
34
proceedings, the pleadings filed, and affidavits "stating the
facts upon which the liability or defense is based," G. L.
c. 231, § 59H, may all be considered in evaluating whether the
claim is a "SLAPP" suit. See Duracraft, 427 Mass. at 161-162
(listing classic indicia of "SLAPP" suits).26 A necessary but
not sufficient factor in this analysis will be whether the
nonmoving party's claim at issue is "colorable or . . . worthy
of being presented to and considered by the court," see L.B. v.
Chief Justice of Probate & Family Court Dept., 474 Mass. 231,
241 (2016), i.e., whether it "offers some reasonable
possibility" of a decision in the party's favor. See
Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979).
On remand, then, the plaintiff nurses may seek to
demonstrate that the hospital defendants' petitioning activity,
i.e., the statements in the Boston Globe article, lacks any
reasonable basis in fact or law and caused the nurses injury.
26
This type of inquiry is not unknown in the anti-SLAPP
context. In Matter of the Discipline of an Attorney, 442
Mass. 660, 674 (2004), an attorney facing disciplinary charges
for allegedly attempting to influence a witness improperly
responded by filing a special motion to dismiss. Because we
determined that bar counsel did not have an improper purpose in
bringing charges against the attorney, we denied the attorney's
special motion. Id. We based our conclusion on two factors:
(1) bar counsel had "sought to sanction the respondent for
'conduct that is prejudicial to the administration of justice,'
an undoubtedly meritorious charge if a witness had been
influenced by improper means;" and (2) "the less than careful
means of communication employed by the respondent left his
conduct at least open to the interpretation urged by bar
counsel." Id.35
Failing this, under the augmented Duracraft framework, they may
seek to establish that their defamation claim, viewed as a
whole, is nonetheless not a "SLAPP" suit. If the plaintiff
nurses cannot meet their second-stage burden under the augmented
framework, the hospital defendants' special motion to dismiss
shall be allowed as to so much of the defamation claim as is
based on the Boston Globe articles, and an appropriate award of
attorney's fees and costs shall be made.
4. Conclusion. The denial of the hospital defendants'
special motion to dismiss the plaintiffs' defamation claim as to
Walczak's statements to the Boston Globe is vacated. In all
other respects, the order is affirmed. The matter is remanded
to the Superior Court for further proceedings consistent with
this opinion.
So ordered.