January 14, 2015
action commenced in the Superior Court Department on May 24,
special motion to dismiss was heard by Linda E. Giles, J.
Jeffrey A. Dretler ( Katharine A. Crawford & Joseph W.
Ambash with him) for the defendants.
C. Rudavsky (Ellen J. Messing with her) for the plaintiffs.
Katzmann, Sullivan, & Blake, JJ.
N.E.3d 81] Katzmann, J.
this case we consider whether the defendants' special
motion to dismiss the plaintiffs' defamation claim
pursuant to G. L. c. 231, § 59H, widely known as the
" anti-SLAPP"  statute, was properly denied. The
central question is whether, during a period of crisis when
Steward Carney Hospital (Carney Hospital or hospital) faced
the loss of its license to operate an in-patient adolescent
psychiatric unit (unit) because of purported patient abuse
and neglect, statements quoted in a newspaper made by the
president of the hospital, and an electronic mail message
(e-mail) the president sent to hospital staff announcing the
dismissal of unnamed employees in the unit under review,
constituted protected petitioning activity. A judge in the
Superior Court denied the motion because she found that the
statements upon which the claim was based did not qualify as
protected petitioning activity and, therefore, the defendants
could not seek protection of the anti-SLAPP statute. We
conclude that the statements quoted in the newspaper
constitute protected petitioning activity, but that the
internal e-mail does not. Accordingly, we affirm in part and
reverse in part.
key facts of this case, as derived from the judge's
decision below, the newspaper articles at issue, affidavits
by those involved in the investigation, testimony in a
related arbitration proceeding (see note 4, infra ),
and relevant reports, are as follows. The plaintiffs are all
registered nurses (RNs) who had been working in the unit for
a number of years. In April, 2011, complaints were made
concerning four incidents of alleged patient abuse or neglect
within the unit. None of the alleged incidents involved abuse
or neglect of a patient by any of the plaintiffs (or any
other RN). The incidents were reported to the Department of
Mental Health (DMH), the Department of Public Health (DPH),
and the Department of Children and Families
(DCF) by unit RNs or other staff. The unit is licensed by DMH
and DPH. After the April complaints, the agencies, especially
DMH, were regularly on site to investigate the incidents and
to determine whether to revoke the license to operate the
unit. The director of licensing at DMH reported making
unannounced visits on different occasions, including weekends
and holidays, [46 N.E.3d 82] so that she could " see in
fact what was happening."
April, 2011, in response to the incidents, Carney Hospital
placed all mental health counselors, all regularly assigned
unit RNs (including the plaintiffs), and two managers on paid
administrative leave. The hospital then hired Attorney Scott
Harshbarger and his law firm, Proskauer Rose, LLP (Proskauer
defendants), to conduct an overall management review of the
unit and make recommendations. Harshbarger interviewed unit
staff, including each of the plaintiffs. The plaintiffs
identified specific issues that affected patient care and
areas for improvement. On May 13, 2011, Harshbarger made an
oral report of his conclusions to the hospital's then
president, William Walczak; Harshbarger submitted his written
report on May 26, 2011. In the report, which made no specific
allegations of abuse or neglect against any of the individual
plaintiffs or any member of the nursing staff, Harshbarger
recommended that the hospital " rebuild" the unit
by replacing all of its personnel. The report cited "
serious weaknesses" in the supervisory and managerial
structure of the unit, including, inter alia, " lack of
a clear reporting structure, lack of accountability,
oversight of patient care and quality, patient and staff
safety concerns, and a flawed and rarely invoked disciplinary
process." The report cited a " code of
silence" as one of the underlying sources and causes of
operational and performance dysfunction. " This code
results in a failure to report issues or concerns, and to
reinforce a general attitude that reporting can trigger
retaliation, intimidation, and/or be ignored or unsupported
by others." The report concluded that " it would be
prudent to replace the current personnel in order to ensure
quality care" for the patients.
that Walczak received Harshbarger's report, he sent a
letter to each plaintiff terminating her for her "
conduct at work." 
On May 27, 2011, Walczak sent an e-mail to all hospital
staff, which stated in pertinent part:
" As you all know, Carney Hospital has a rich tradition
of providing excellent care to our patients. Our performance
on national quality and safety standards is exceptional, and
in many cases superior to competing hospitals. The reason for
this performance is simple -- you[,] the employees and
caregivers at Carney [Hospital], are dedicated to providing
the best possible care to every patient that comes through
our doors. It is your dedication that makes Carney Hospital
such a special place.
" Recently, I have become aware of alleged incidents
where a number of Carney [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 [46 N.E.3d 83] community we serve. As a result, I have
terminated the employment of each of these individuals."
following day, on May 28, 2011, the Boston Globe published an
article stating that Walczak said he had hired Harshbarger to
investigate an allegation that an employee had allegedly
sexually assaulted a teenager on the locked adolescent
psychiatry unit, and that Harshbarger had recommended "
to start over on the unit." The article included
Walczak's statement that Harshbarger's report "
described 'serious concerns about patient safety and
quality of care.'" The article reported that Walczak
further stated, " We will have top-notch employees
replace those who left. My goal is to make it the best unit
in the state." In the article, a spokesman for the
Massachusetts Nurses Association, a union representing the
plaintiffs, said that the " hospital fired 29 employees,
including 13 nurses who are members of the union."
June, 2011, DMH issued reports on the incidents, finding
wrongdoing by a single mental health counsellor for the first
incidents and finding improper actions by unspecified staff
for the fourth incident. In a June 22, 2011, Boston Globe
article, it was reported that the firing of twenty-nine
nurses and mental health counsellors at Carney Hospital
followed five complaints of abuse or neglect in the
adolescent psychiatry unit, not just the one complaint as
initially disclosed, and that four of the complaints had been
validated. While declining to provide details on the cases,
Walczak was quoted in the article as stating that "
[t]he Harshbarger report indicated that it wasn't a safe
situation." The article explained that Walczak based his
decision to fire the entire staff " on an investigation
by former Attorney General Scott Harshbarger and his law
firm." The article quoted a letter from the
Massachusetts Nurses Association to Carney Hospital nurses as
stating that the nurses " adamantly deny any allegations
24, 2013, the plaintiffs filed their defamation claims
against the Proskauer defendants and against Carney
Hospital, two related entities, and Walczak (collectively,
Steward defendants). Relevant to the instant appeal,
pursuant to the anti-SLAPP statute, the Steward defendants
filed a special motion to dismiss count 3 of the complaint
(defamation), which alleged that Walczak " made false
and defamatory statements about the plaintiffs to the general
public in his remarks in the Boston Globe articles of May 28,
2011, and June 22, 2011," and " made false and
defamatory statements about the [46 N.E.3d 84] plaintiffs to
Hospital staff in his email of May 27, 2011." The judge
denied this motion,
finding that neither Walczak's statements to the Boston
Globe nor his e-mail to the hospital staff constituted
protected petitioning activity. The Steward defendants now
appeal from the denial of their motion.
The anti-SLAPP statute.
anti-SLAPP statute, G. L. c. 231, § 59H, " protects
the 'exercise of [the] right of petition under the
constitution of the United States or of the
[C]ommonwealth,' by creating a procedural mechanism, in
the form of a special motion to dismiss, for the expedient
resolution of so-called 'SLAPP' suits."
Office One, Inc. v. Lopez, 437 Mass. 113,
121, 769 N.E.2d 749 (2002) ( Office One, Inc. ).
" In the preamble to 1994 House Doc. No. 1520, the
Legislature recognized that ... 'there has been a
disturbing increase in lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of
speech and petition for redress of grievances.'"
Duracraft Corp. v. Holmes Prods. Corp., 427
Mass. 156, 161, 691 N.E.2d 935 (1998) ( Duracraft ).
Under the " well-established [two-part] burden-shifting
test," Hanover v. New England Regional
Council of Carpenters, 467 Mass. 587, 595, 6 N.E.3d 522
(2014), " [t]o invoke the statute's protection, the
special movant[s], [here, the Steward defendants, must] show,
as a threshold matter, through pleadings and affidavits, that
the claims against [them] are ... 'based on' [their]
petitioning activities alone and have no substantial basis
other than or in addition to [their] petitioning
activities." Office One, Inc., supra
at 122, citing Duracraft, supra at 167-168.
Wenger v. Aceto, 451 Mass. 1, 5, 883 N.E.2d
262 (2008) ( Wenger ). This is the first prong of
the test. Under the second prong, if the special movants make
such a showing, the burden then shifts to the nonmoving party
to demonstrate by a preponderance of the evidence that the
moving party's activities were " devoid of any
reasonable factual support or any arguable basis in law"
and that the petitioning activities caused actual injury.
Benoit v. Frederickson, 454 Mass. 148,
152-153, 908 N.E.2d 714 (2009) ( Benoit ), quoting
from G. L. c. 231, § 59H.
In order to determine if statements are petitioning, we
consider them in the over-all context in which they were
made." North Am. Expositions Co. Ltd.
Partnership v. Corcoran, 452 Mass. 852, 862,
898 N.E.2d 831 (2009) ( Corcoran ). "
'[P]etitioning' has been consistently defined to
encompass a 'very broad' range of activities in the
context of the anti-SLAPP statute." Id. at 861,
citing Duracraft, supra at 161-162. "
The statute identifies five types of statements that comprise
'a party's exercise of its right of petition':
' [A]ny written or oral statement made before or
submitted to a legislative, executive, or judicial body, or
any other governmental proceeding;  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 ;
 any statement reasonably likely to encourage
consideration or review of an issue by a legislative,
executive, or judicial body or any other governmental
proceeding;  any statement reasonably likely to enlist
public participation in an effort to effect such
consideration; or  any other statement falling within
constitutional protection of the right to petition
government.' G. L. c. 231, § 59H." (Emphasis
Cadle Co. v. Schlichtmann, 448 Mass. 242,
248, 859 N.E.2d 858 (2007) ( Cadle Co. ). [46 N.E.3d
85] The second category is of particular relevance to the
Standard of review.
been stated, we review the judge's decision to grant the
special motion to dismiss for abuse of discretion or error of
law. See Marabello v. Boston Bark Corp.,
463 Mass. 394, 397, 974 N.E.2d 636 (2012); Hanover
v. New England Regional Council of Carpenters, 467
Mass. at 595. We note that while this formulation appears in
various anti-SLAPP decisions, there are other cases where it
is absent. See, e.g., Corcoran, supra, 452
Mass. 852; Benoit, 454 Mass. 148, 908 N.E.2d 714;
Ehrlich v. Stern, 74 Mass.App.Ct. 531, 908
N.E.2d 797 (2009) ( Ehrlich ). In any event, with
respect to the first prong of the test -- whether conduct as
alleged on the face of a complaint qualifies as protected
petitioning activity -- it does not appear that the courts
have deferred to the motion judge but rather have made a
fresh and independent evaluation. See, e.g.,
Corcoran, 452 Mass. at 863-864 (discussing Cadle
Co., 448 Mass. 242, 859 N.E.2d 858 );
Plante v. Wylie, 63 Mass.App.Ct. 151,
160-161, 824 N.E.2d 461 (2005) ( Plante ). Where the
motion judge's determination of the second prong of the
two-part test does not implicate credibility assessments, it
is arguable that appellate review should be similarly de
novo. See, e.g., Benoit, 454 Mass. at 154 n.7
(discussing the appropriate standard of review with respect
to the analysis of the second prong of the two-part
conclude that whether we review the judge's denial of the
motion to dismiss de novo or with discretion, the ruling was
in error with respect to the statements to the Boston Globe,
but was not in error with respect to the e-mail sent to
outset we briefly address and reject the plaintiffs'
standing argument. The plaintiffs contend that the anti-SLAPP
statute does not apply because Walczak is not personally
aggrieved by the agencies' actions and was not
petitioning them on his own behalf. Keegan v.
Pellerin, 76 Mass.App.Ct. 186, 191-192, 920 N.E.2d
888 (2010), is dispositive on this issue. Here, Walczak, who
engaged in petitioning activity on behalf of the hospital
while he was its president, is protected by the anti-SLAPP
statute because " when a nongovernmental person or
entity is the petitioner, the statute protects one who is
engaged to assist in the petitioning activity under
circumstances similar to those this record reveals."
Id. at 192, citing Plante, 63 Mass.App.Ct.
at 156-157. See Office One, Inc., 437 Mass. at
121-124. See also Corcoran, 452 Mass. 852, 898
N.E.2d 831 (2009) (underlying suit named defendants'
principal, whose statements were challenged, as individual
defendant). Walczak thus has standing.
N.E.3d 86] 3. The statements ...