Blanchard v. Steward Carney Hospital, Inc.

NOTICE: All slip opinions and orders are subject to formal
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14-P-717 Appeals Court

LYNNE BLANCHARD & others1 vs. STEWARD CARNEY HOSPITAL, INC., &
others.2

No. 14-P-717.

Suffolk. January 14, 2015. - February 24, 2016.

Present: Katzmann, Sullivan, & Blake, JJ.

"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government. Practice, Civil, Standing, Motion to dismiss.

Civil action commenced in the Superior Court Department on
May 24, 2013.

A 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.
Dahlia C. Rudavsky for the plaintiffs.

KATZMANN, J. In this case we consider whether the

defendants' special motion to dismiss the plaintiffs' defamation

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.
 2

claim pursuant to G. L. c. 231, § 59H, widely known as the

"anti-SLAPP"3 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.

Background. The 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

3
"'SLAPP' is an acronym for Strategic Lawsuit Against
Public Participation." Office One, Inc. v. Lopez, 437 Mass.
113, 121 n.13 (2002).
 3

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, so that she could "see in fact

what was happening."

In late 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
 4

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.

The day that Walczak received Harshbarger's report, he sent

a letter to each plaintiff terminating her for her "conduct at
 5

work."4 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 community we serve. As a result, I have
terminated the employment of each of these individuals."

The 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

4
In their complaint against the hospital, two related
entities, and Walczak (Steward defendants), alleging defamation,
the plaintiffs stated that the Massachusetts Nurses Association,
a union representing the plaintiffs, had filed grievances on
their behalf, that the hospital had denied those grievances, and
that an arbitrator had "found that [the Steward defendants] had
violated the [collective bargaining agreement] by discharging
the grievants." According to the complaint, the arbitrator
stated that "the concept of collective guilt and responsibility
does not suffice to establish just cause to terminate any
particular member of the group," and ordered reinstatement,
removal of any allegations or findings of wrongdoing from the
grievants' personnel files, and payment to them of all lost back
wages and benefits, with interest. The complaint stated that
the Steward defendants have appealed the award and have not
reinstated any of the plaintiffs.
 6

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."

In June, 2011, DMH issued reports on the incidents, finding

wrongdoing by a single mental health counsellor for the first

three 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."
 7

The article quoted a letter from the Massachusetts Nurses

Association to Carney Hospital nurses as stating that the nurses

"adamantly deny any allegations of wrongdoing."

On May 24, 2013, the plaintiffs filed their defamation

claims against the Proskauer defendants5 and against Carney

Hospital, two related entities, and Walczak (collectively,

Steward defendants).6 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

5
Counts 4 and 5 of the complaint were against the Proskauer
defendants, for defamation and infliction of emotional distress.
The defamation claim was based on Harshbarger's statements in
his written report and oral presentation to the Steward
defendants. The Proskauer defendants filed a special motion to
dismiss the defamation claim pursuant to the anti-SLAPP statute.
The judge allowed this motion, finding that the statements
contained in Harshbarger's report, in the context in which they
were made, constituted petitioning activity protected under
G. L. c. 231, § 59H. Subsequently, all claims against the
Proskauer defendants were dismissed with prejudice on the
parties' stipulation; judgment entered for the Proskauer
defendants on May 27, 2014.
6
Counts 1-3 of the plaintiffs' complaint are against the
Steward defendants. Of these, only count 3 (defamation) is at
issue in this appeal. At the motion hearing, the Steward
defendants waived their motion to dismiss counts 1 and 2
pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974),
subject to renewal as a motion for summary judgment. (Count 1
alleges retaliatory discharge based on whistleblower activity;
count 2 alleges violations of G. L. c. 119, § 51A, for the
discharge of two of the plaintiffs after they reported abuse or
neglect of patients on the unit.)
 8

Boston Globe articles of May 28, 2011, and June 22, 2011," and

"made false and defamatory statements about the 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.

Discussion. 1. Overview. a. The anti-SLAPP statute.

The 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 (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 (1998) (Duracraft).

Under the "well-established [two-part] burden-shifting test,"

Hanover v. New England Regional Council of Carpenters, 467 Mass.

587, 595 (2014), "[t]o invoke the statute's protection, the

special movant[s], [here, the Steward defendants, must] show, as
 9

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 (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 (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 (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':
 10

'[1] [A]ny 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."
(Emphasis added.)

Cadle Co. v. Schlichtmann, 448 Mass. 242, 248 (2007) (Cadle

Co.). The second category is of particular relevance to the

instant case.

b. Standard of review. As has 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 (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; Ehrlich v. Stern,

74 Mass. App. Ct. 531 (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
 11

independent evaluation. See, e.g., Corcoran, 452 Mass. at 863-

864 (discussing Cadle Co., 448 Mass. 242 [2007]); Plante v.

Wylie, 63 Mass. App. Ct. 151, 160-161 (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 test).7

We 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 hospital

employees.

2. Standing. At the outset we briefly address and reject

the plaintiffs' standing argument. The plaintiffs contend that

7
In Benoit, the Supreme Judicial Court explained:

"The anti-SLAPP statute requires the judge to consider
the pleadings and supporting and opposing affidavits. The
question to be determined by a judge in deciding a special
motion to dismiss is not which of the parties' pleadings
and affidavits are entitled to be credited or accorded
greater weight, but whether the nonmoving party has met its
burden (by showing that the underlying petitioning activity
by the moving party was devoid of any reasonable factual
support or arguable basis in law, and whether the activity
caused actual injury to the nonmoving party)."

454 Mass. at 154 n.7.
 12

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 (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 (2009) (underlying suit named defendants' principal, whose

statements were challenged, as individual defendant).8 Walczak

thus has standing.

3. The statements to the Boston Globe. By way of

overview, we note our conclusion, discussed below, that the

8
The cases upon which the plaintiffs rely to contest
standing -- Kobrin v. Gastfriend, 443 Mass. 327, 332 (2005);
Fisher v. Lint, 69 Mass. App. Ct. 360, 364-365 (2007); and
Moriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 442, 447 (2008)
-- were specifically distinguished by the Keegan court because
those cases "rest on the commonsense principle that a statute
designed to protect the constitutional right to petition has no
applicability to situations in which the government petitions
itself." Keegan v. Pellerin, 76 Mass. App. Ct. 186, 192 (2010).
This is not a case in which the government was petitioning
itself; rather, Walczak was petitioning on behalf of his
employer, the hospital. See ibid.
 13

judge erred in concluding that Walczak's statements to the

Boston Globe "can[not] be considered petitioning activity under

Massachusetts law." We disagree with the stark contrast the

judge drew between the Proskauer defendants' statements in the

report and the statements the Steward defendants made in the

Boston Globe articles. The judge, citing Kobrin v. Gastfriend,

443 Mass. 327, 333 (2005) (Kobrin), for the proposition that the

anti-SLAPP statute applies only where a "party seeks some

redress from the government," found it "clear that the

statements in Harshbarger's report constitute petitioning

activity in that they were aimed at persuading the regulatory

agencies involved not to revoke Carney Hospital's license." The

judge noted that, in response to DMH's threat to close the unit,

Harshbarger was recruited and was required to "interface with

the various regulatory agencies and personnel on behalf of

Carney Hospital and develop remedies so that the Hospital could

retain its license and prevent the Unit from being closed." The

pleadings and affidavits indicate that the Steward defendants'

overarching goal was the same as that of the Proskauer

defendants: to ensure that the hospital retained its license

and to prevent the unit from being closed.9 The strategy was to

9
The affidavit of Michael R. Bertoncini, deputy general
counsel of one of the Steward defendants during the relevant
time period, explained, "The leadership of [his client] and
Carney Hospital believed that swift and decisive action was
 14

take a comprehensive approach to fixing the problems at the unit

to demonstrate to DMH that the unit should maintain its license.

In short, with respect to the statements to the Boston Globe, we

do not discern a consequential distinction between the conduct

of the Steward defendants and the Proskauer defendants.

Walczak's statements were made and designed to achieve the same

goal and also qualify as protected petitioning activity.

a. Specifically, the parties disagree as to whether

Walczak's statements in the Boston Globe articles on May 28,

2011, and June 22, 2011, qualify as protected petitioning

activity. We conclude, as this court did in Wynne v. Creigle,

63 Mass. App. Ct. 246, 254 (2005) (Creigle), that Walczak's

statements "were sufficiently tied to and in advancement of" the

maintenance of the license to operate the unit. In Creigle,

there were two independent bases on which the defendant's

statements to the newspaper were found to be protected

petitioning activity. One basis was that the statements "were

sufficiently tied to and in advancement of" the defendant's

necessary to ensure the safety of patients in the Unit, to
respond to the concerns of the DMH/DCF personnel on the scene,
and to work with and persuade the relevant regulatory agencies
not to suspend Carney Hospital's license to operate the Unit and
not to close the Unit." Bertoncini also stated that his client
and the hospital hoped that the hiring of Harshbarger to conduct
the review and the "corresponding response would provide clear
and convincing evidence and support for the position that the
Unit should not lose its license to operate, should not be
closed[,] and should be given the opportunity to effect a
comprehensive remedy."
 15

petition for benefits then under consideration by the

Legislature, and, "thus, they fall within the ambit of

statements made 'in connection with' legislative proceedings

within the meaning of G. L. c. 231, § 59H, and constitute

protected petitioning activity on that basis." Ibid. The

second basis was that the context in which the defendant's

statements to the newspaper occurred was as a response to the

materials the plaintiff had earlier provided to the newspaper,

and the fact that the defendant's statements were "essentially

mirror images" of statements she had made in an earlier

governmental investigation of the plaintiff. Ibid. In Cadle

Co., 448 Mass. at 251, the court further emphasized the

importance of context when, in distinguishing Creigle, it noted

that unlike Creigle, in Cadle Co., there was "nothing in the

record [to] support a finding that the [defendant's] challenged

statements . . . were either a response to statements that [the

plaintiff] had made to the press or repetitions of statements

initially made in a governmental proceeding."

We similarly conclude from the content of the Boston Globe

articles, particularly the June 22 article, and from Walczak's

affidavit, which was not challenged by the plaintiffs, that the

"defendant's statements were not unsolicited," but, rather, were

responsive. In his affidavit, Walczak states that he

"understood that representatives from the nurses' union were
 16

commenting to the media on the terminations and that the media

was also seeking commentary from current and former officials

from the very regulatory agencies who were in the process of

reviewing Carney Hospital's licensing status. As such, I felt

that it was important that I explain to the media, and hence to

the general public and the agencies themselves, why Carney

Hospital took the actions that it did, and what our plans were

for ensuring the safety and care of our patients going forward."

The relevant Boston Globe articles include statements and

perspectives from the nurses' representatives that demonstrate

that they were actively informing reporters about the nurses'

side of the story, denying any allegations of wrongdoing.

Harshbarger noted in his affidavit that there was public

pressure on the agencies to close the unit and withdraw its

license. Walczak's comments, when viewed in this context,

qualify as protected petitioning activity because the

investigation was ongoing, and it is clear that DMH, which was

regularly on site at the hospital, would be paying attention, or

at least would have access to these articles. If Walczak did

not respond, there would have been a serious risk that the

situation would be reported in a manner that did not take into

account the Steward defendants' perspective. Walczak's

statements to the Boston Globe were designed to communicate to

the regulatory agencies that the hospital was taking action to
 17

avoid losing its license to operate the unit. Even within the

articles at issue here, professionals in the local health care

arena, including some former and current officials of the

reviewing agencies, commented on and evaluated Walczak's course

of action, commending the serious steps he took to address the

incidents, and noting DMH's approval of his actions. Indeed, in

Walczak's affidavit, he stated that it was his

"sincere belief that [his] comments to the media would
reach the regulators with the message that Carney Hospital
had taken the incidents very seriously, implemented
immediate remedial action, and developed a plan of action,
all of which would contribute to convincing the agencies
that patient safety was a priority and that the Unit should
remain licensed and open."

With the agencies continuously monitoring the situation and

the unavoidable publicity that developed around it, the media

essentially became a venue to express the perspectives of each

side; as such, the Boston Globe articles were available to, and

likely considered by, the regulatory agencies. The judge erred

in concluding that the statements to the Boston Globe were not

protected activity on the ground that the Steward defendants,

both directly and through Harshbarger, "already were in

communication with the agencies regarding their investigation."

This conclusion ignored Harshbarger's averments regarding those

communications. His affidavit stated, "At this point, DMH's

investigation was ongoing and the possibility that the Unit's

license to operate would be revoked and the Unit would be closed
 18

was still not only being considered, but highly likely. There

was some public pressure on the agencies to close the Unit and

withdraw the necessary license."

Walczak's statements in the Boston Globe describing the

actions the hospital had taken -- particularly where there was

ongoing public pressure on the agencies to close the unit and to

withdraw the hospital's license to operate the unit -- were

important affirmations, as they came from the president of the

hospital himself in support of the urgent goal of influencing

DMH to preserve the license, and were thus legitimate protected

activity. Cf. Benoit, 454 Mass. at 153 (motion judge erred in

concluding that petitioning activities were not "legitimate").

In attempting to reach and educate through the media the

opponents in the public who had been pressuring the agencies to

revoke the license, Walczak's statements possessed the

characteristics of petitioning activity. Contrast Burley v.

Comets Community Youth Center, Inc., 75 Mass. App. Ct. 818, 823-

824 (2009) (Burley) (statements made to the defendant's

employees that the plaintiff was banned from a skating rink for

inappropriate behavior were not protected petitioning activity

where there was no link shown between the employees and the

relevant governmental body).

In context and in totality, Walczak's statements to the

Boston Globe were in furtherance of the overriding strategic
 19

mission of bringing to bear upon the regulatory decisionmakers

the seriousness of the hospital's effort to reform the

institution. As such, the Steward defendants have satisfied

their burden of making a threshold showing that the plaintiffs'

"claims [are] 'based on' [the] petitioning activit[y] alone and

have no substantial basis other than or in addition to [the]

petitioning activit[y]." Office One, Inc., 437 Mass. at 122,

citing Duracraft, 427 Mass. at 167-168. Contrast Global NAPS,

Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 605

(2005) (Global NAPS, Inc.). That the statements in the media

were not made directly to the regulatory agencies does not

remove them from protected petitioning activity, given that the

ultimate audience was those agencies. Walczak's statements to

the Boston Globe were protected petitioning activity because

they were made "to influence, inform, or at the very least,

reach governmental bodies -- either directly or indirectly"

(emphasis added). Corcoran, 452 Mass. at 862, quoting from

Global NAPS, Inc., 63 Mass. App. Ct. at 605.

We also conclude that Walczak's statements in the Boston

Globe articles qualify as protected petitioning activity on the

alternative basis that they are "essentially mirror images" of

statements in the report. In essence, the plaintiffs argue that

in order to qualify as "mirror images," the statements in the

Boston Globe and the report must be identical. The case law,
 20

however, indicates that the contested statements do not have to

be an exact match but rather must be only "essentially" mirror

images of the protected statements. Creigle, 63 Mass. App. Ct.

at 254. See Burley, 75 Mass. App. Ct. at 823. We interpret the

qualifier "essentially" as requiring only that the statements be

close to or very similar to the protected statements. While the

report is significantly more thorough and detailed, Walczak's

statements maintain the same tone and content, summarizing the

report to respond succinctly and effectively to press inquiries

and statements by the nurses' representatives. Walczak's

statements to the Boston Globe convey the content of the report,

which the hospital commissioned specifically to assure the

investigating agencies that it was taking the requisite action

to fix the problem. Taken in context, Walczak's repetition of

the report's content to the media also possessed the

characteristics of petitioning activity. See Creigle, supra at

253-254.

b. Our focus now shifts to the plaintiffs, because even

though we conclude that with respect to the statements to the

Boston Globe, the plaintiffs' claim was "based on" the

defendants' protected petitioning activity, the plaintiffs have

the opportunity to defeat the special motion to dismiss the

defamation count based on those statements by showing, "by a

preponderance of the evidence, that . . . the defendants'
 21

petitioning activity [was] devoid of any reasonable factual [or

legal] support . . . and that . . . the activity caused the

plaintiffs actual harm." Office One, Inc., 437 Mass. at 123.

See Duracraft, 427 Mass. at 165; Wenger, 451 Mass. at 5, citing

G. L. c. 231, § 59H; Chiulli v. Liberty Mut. Ins., Inc., 87

Mass. App. Ct. 229, 233-234 (2015). See also Baker v. Parsons,

434 Mass. 543, 554-555 (2001) (Baker) (to defeat a special

motion to dismiss defamation claims, the plaintiff had the

burden of showing "by a preponderance of evidence that the

defendants lacked any reasonable factual support for their

petitioning activity").

The plaintiffs have failed to show that the defendants'

petitioning activity, as constituted by the statements to the

Boston Globe, was devoid of factual or legal support.10 "Because

the plaintiffs failed to show that the petitioning activity in

issue was devoid of any reasonable factual basis or basis in

law, it is not necessary to reach the question whether the

activity caused the plaintiffs actual injury." Office One Inc.,

437 Mass. at 124. See Creigle, 63 Mass. App. Ct. at 255. See

10
The plaintiffs acknowledge that "no such showing was made
-- or attempted" because "they in fact supported Steward's
advocacy goal: the preservation of the Unit's license." We do
not agree that this explains the plaintiffs' silence on this
point. While the plaintiffs may have had an interest in
preservation of the license, they did not share the goal of
staffing the unit with new staff. It was thus incumbent upon
the plaintiffs to show the absence of factual or legal support
for the statements they assert were defamatory.
 22

also Dickey v. Warren, 75 Mass. App. Ct. 585, 592 (2009). In

drafting G. L. c. 231, § 59H, the "Legislature intended to

immunize parties from claims 'based on' their petitioning

activities," Duracraft, 427 Mass. at 167, and we conclude that

the claims in the instant case concerning the Boston Globe

articles are exactly the type that the Legislature had in mind.

See Baker, 434 Mass. at 551 (noting that defamation is the "most

popular SLAPP cause of action," the court concluded that the

"initial showing by the defendants that the claims against them

were based on their petitioning activities alone is not defeated

by the plaintiff's conclusory assertion that certain statements

made by the defendants in petitions to government officials

constitute defamation" [quotation and citation omitted]).

4. The e-mail sent to Carney Hospital staff. We turn now

to the e-mail that Walczak sent on May 27, 2011, to the Carney

Hospital staff. In that e-mail, he noted the hospital's "rich

tradition of providing excellent care to our patients," that he

had "become aware of the alleged incidents where a number of

Carney [Hospital] staff have not demonstrated this steadfast

commitment to patient care," "that these individual employees

have not been acting in the best interest of their patients, the

hospital, or the community we serve," and that "[a]s a result, I

have terminated the employment of each of these individuals."

In his affidavit filed in the litigation below, Walczak avers
 23

that the e-mail was sent "not only to communicate to the

hospital employees what was happening, but to give assurances to

the regulatory agencies who were in the process of determining

whether Carney Hospital's license to operate the Unit should be

revoked that the deficiencies which has [sic] been reported on

the Unit would not continue in that Unit or be tolerated in any

other part of Carney Hospital."11

Regarding whether the e-mail could qualify as petitioning

activity, the Superior Court judge ruled: "With respect to the

email which Walczak sent to the internal employees of Carney

Hospital, this communication cannot be considered petitioning

activity protected by G. L. c. 231, § 59H. The Steward

Defendants have not shown how the statements in the email,

communicated only to Carney Hospital employees, were intended to

influence, inform, or reach, directly or indirectly,

governmental agencies. See Global NAPS, Inc., 63 Mass. App. Ct.

at 605." (Emphasis added.)

During the hearing on the anti-SLAPP motion to dismiss, the

judge appropriately indicated that she could "look at the[]

11
Walczak's affidavit further states:

"On May 27, 2011, I sent an email to all Carney Hospital
employees reaffirming Carney Hospital's commitment to
providing the best possible care to every patient that
comes through the doors and explaining the reasons why I
decided to terminate the employment of individuals who, in
my view, had not lived up to that standard."
 24

affidavits." There was no allegation or averment in Walczak's

affidavit, or in any of the other affidavits presented to the

judge, that the e-mail sent to the Carney Hospital staff was

provided to the regulators, or that the regulators were told

about it. That the e-mail may have been part of an over-all

strategy to address the conditions in the unit in the hope of

influencing the regulators is not sufficient to qualify as

petitioning activity where there is no evidence in the record

that the e-mail was transmitted to the regulators or that they

were informed of that communication. In sum, we cannot say that

the judge erred in her determination that the Steward defendants

had "not shown [that] the statements in the email, communicated

only to Carney Hospital employees," qualified as protected

petitioning activity.12 Compare Burley, 63 Mass. App. Ct. at 823

(moving party failed to show that statements to employees were

made "in conjunction with its protected petitioning activity").

Conclusion. The order of the Superior Court is reversed

insofar as it denied the Steward defendants' special motion to

dismiss count 3 of the plaintiffs' complaint (defamation) as to

12
Having determined that the Steward defendants have not
satisfied the first prong of the two-part test, we need not
address the second prong regarding proof of factual or legal
support.
 25

Walczak's statements to the Boston Globe. In all other respects

the order is affirmed.13,14

So ordered.

13
See Wenger, 451 Mass. at 2, 9 (denying a special motion
to dismiss with respect to a G. L. c. 93A claim and allowing the
special motion to dismiss as to malicious prosecution and abuse
of process claims). Under the circumstances here, where the e-
mail and statements to the Globe were distinct actions clearly
set forth in the defamation count and could readily have been
the subject of separate counts, the complaint differs from that
presented in Ehrlich, 74 Mass. App. Ct. at 534, where such
delineation was absent. But see Burley, 75 Mass. App. Ct. at
821-824.
14
As count 3 survives in part, the Steward defendants'
motion for attorney's fees and costs pursuant to the anti-SLAPP
statute is denied.
 SULLIVAN, J. (concurring in the result). The motion judge

denied the special motion to dismiss the plaintiffs' defamation

claim against the Steward defendants1 because, in her judgment,

the defendants failed to meet their burden to show that the

count for defamation was based solely on petitioning activity.

See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167

(1998) (Duracraft) (moving party must make a threshold showing

that the complaint is based on petitioning activity "alone").

Because the judge did not make a clear error of law or judgment

in declining to dismiss the defamation claim with respect to the

e-mail, I agree that the special motion to dismiss must be

denied as to the e-mail. I do not agree that the statements

made to the Boston Globe constituted solely petitioning

activity. However, based on the "mirror image" doctrine, I also

must agree that the statements to the Boston Globe are

petitioning activity. I write separately to emphasize material

differences in the reasons for which I arrive at these

conclusions, reasons which impact both the standard of review of

decisions on "anti-SLAPP" motions and the scope of protection

afforded litigants in the Commonwealth under the First Amendment

to the United States Constitution.

1
Steward Carney Hospital, Inc. (Carney Hospital or
hospital); Steward Hospital Holdings, LLC; Steward Health Care
System, LLC; and William Walczak.
 2

Standard of review. A threshold question is the proper

application of the standard of review. We review the motion

judge's decision for an abuse of discretion. See Kobrin v.

Gastfriend, 443 Mass. 327, 330-331 (2005) (Kobrin); Marabello v.

Boston Bark Corp., 463 Mass. 394, 397 (2012) (Marabello).2

Whether the appellate courts have functionally conducted (or

should conduct) a "fresh and independent evaluation" of anti-

SLAPP motions to dismiss, albeit under the umbrella of the abuse

of discretion standard, is a different question, one left

largely unanswered by existing precedent. See ante at . To

be sure, an appellate court reviews errors of law de novo, and

an error of law is an abuse of discretion. See Kobrin, supra at

330-331; Marabello, supra at 397. With some frequency the

existence of petitioning activity has been decided as a matter

of law on the basis of the complaint.3 See Fabre v. Walton, 436

2
See also Office One, Inc. v. Lopez, 437 Mass. 113, 121
(2002) (Office One, Inc.); Cadle Co. v. Schlichtmann, 448 Mass.
242, 250 (2002) (Cadle); Hanover v. New England Regional Council
of Carpenters, 467 Mass. 587, 595 (2014).
3
For example, where a complaint is based solely on the
filing of a police report, the special motion to dismiss has
been allowed as a matter of law. See Benoit v. Frederickson,
454 Mass. 148, 153 (2009); Keegan v. Pellerin, 76 Mass. App. Ct.
186, 190 (2010). See also McLarnon v. Jokisch, 431 Mass. 343,
347 (2000) (application for an abuse prevention order). The
cases cited ante at arose as a question of law based on a
review of the complaint. The sole exception is North Am.
Exposition Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 854
& n.5 (2009), where the court supplemented its review of the
 3

Mass. 517, 522-523 (2002); Office One, Inc. v. Lopez, 437 Mass.

113, 122-123 (2002) (Office One, Inc.); Wenger v. Aceto, 451

Mass. 1, 5 (2008) (Wenger); North Am. Expositions Co. Ltd.

Partnership v. Corcoran, 452 Mass. 852, 864-865 (2009)

(Corcoran). Where the pertinent allegations suggest that there

may be both petitioning activity and nonpetitioning activity,

the motion must be denied. See Garabedian v. Westland, 59 Mass.

App. Ct. 427, 432 (2003); Ehrlich v. Stern, 74 Mass. App. Ct.

531, 536-537 (2009) (Ehrlich); Burley v. Comets Community Youth

Center, Inc., 75 Mass. App. Ct. 818, 821-822 (2009) (Burley).

In this case, we also have the moving parties' affidavits.

How must those affidavits be treated? The answer lies in the

hornbook principle, as applicable in anti-SLAPP suits as in

other areas of the law, that the judge may look to the entire

record and is not required to credit a defendant's affidavit.

See Cadle Co. v. Schlichtmann, 448 Mass. 242, 250-251 (2007)

(Cadle). In the context of an anti-SLAPP motion, this means

that the judge is not required to accept at face value either

party's "self-serving characterization" of conduct as

petitioning or nonpetitioning activity. See ibid. (holding that

the judge was permitted to determine as a factual matter that

the defendant had failed to meet his burden to show that the

allegations of the complaint, but with uncontested evidence
only. This case arises in a different posture.
 4

purpose in setting up a litigation Web site was petitioning

rather than commercial).4 In my view, this determination on

appeal falls under the more deferential standard of review for

abuse of discretion, id. at 250, that is, whether the motion

judge made "a clear error of judgment in weighing the factors

relevant to the decision, . . . such that the decision [fell]

outside the range of reasonable alternatives." L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation and

citation omitted).

The defamation claim. Turning to the defamation claim, the

complaint alleges and Walczak's affidavit confirms that he sent

an e-mail to all Carney Hospital employees. The e-mail

contained a stern warning about patient care, hospital

standards, and his reasons for the mass termination. There was

no allegation or averment in this or any other affidavit that

4
Alternatively, there is the approach taken in Benoit v.
Fredrickson, 454 Mass. at 154 n.7. In Benoit, the court
cautioned against fact finding on the second prong of the two-
part test. This caution makes sense in the context of ensuring
that the applicable standard -- whether the petitioning activity
is utterly devoid of reasonable factual support or an arguable
basis in law -- is not usurped by a shadow trial on the merits
on a motion to dismiss. The interest at stake in the first
prong of the test -- determining whether a defendant has met his
burden of proving that his statements were solely for
petitioning purposes -- is a different one. However, even if a
factual dispute were found to exist on the first prong, under
the Benoit approach, the dispute itself would be the basis for
denying the motion, because the existence of the dispute means
that the defendants have not met their burden to show that their
conduct was solely for a petitioning purpose.
 5

the e-mail was provided to the regulators, or that the

regulators were told about it. The judge concluded that the

Steward defendants "have not shown how the statements in the

email, communicated only to Carney Hospital employees, were

intended to influence, inform, or reach, directly or indirectly,

governmental agencies. . . . The statements cannot be

considered petitioning activity merely because they communicated

to the Hospital staff what remedial action the Hospital was

taking as a response to a regulatory agency investigation."

The judge did not abuse her discretion. As a matter of

law, the hospital's decision to terminate the employment of all

employees in the adolescent psychiatric unit (unit) was conduct,

not speech, and is not entitled to the protection of the anti-

SLAPP statute. See Marabello, 463 Mass. at 398-400. The fact

that the hospital explained its actions to its employees does

not transform conduct into petitioning activity. A "tangential

statement[]" that "concerns a topic that has attracted

governmental attention . . . does not give that statement the

character contemplated by the statute." Global NAPS, Inc. v.

Verizon New England, Inc., 63 Mass. App. Ct. 600, 605, 607

(2005). That the e-mail may have been part of an over-all

strategy to address the conditions in the unit and thereby avoid

the wrath of the regulators is not enough. "[A]n over-broad

construction of the anti-SLAPP statute would compromise the
 6

nonmoving party's right to petition -- the same right the

statute was enacted to protect." Kobrin, 443 Mass. at 335.5

It is not clear from the judge's decision whether she did

not credit Walczak's affidavit or whether, even if she accepted

it at face value, she found the affidavit was insufficient to

show that petitioning activity was the sole basis for the e-

mail, or both. See Wenger, 451 Mass. at 5, quoting from

Duracraft, 427 Mass. at 167-168 (movant must show that the claim

"[is] based on 'petitioning activities alone and ha[s] no

substantial basis other than or in addition to the petitioning

activities'"). The judge's decision is properly sustained on

either basis.

First, for the reasons stated above, the judge did not

abuse her discretion to the extent that she declined to credit

Walczak's affidavit. See Cadle, 448 Mass. at 250. The judge

considered the affidavit6 and found it unpersuasive in light of

the complete absence of any evidence that the e-mail was sent to

the regulators. In this factual context, the judge did not

5
It is particularly important to note that the e-mail went
further than the report prepared by Attorney Scott Harshbarger
and could be read to suggest that the fired employees were
responsible for the incidents leading to the investigation. It
is these statements in particular which the plaintiffs allege
were defamatory.
6
The affidavits were discussed at length in the motion
hearing, and the judge stated on the record her intention to
consider them.
 7

engage in a clear error in judgment in concluding that the

affidavit, crafted after the fact for purposes of supporting the

special motion, failed to sustain the defendants' burden to show

that Walczak engaged in petitioning activity. The statements in

the affidavit concerning the defendants' motives and beliefs are

not relevant. "We care not whether a defendant seeking

dismissal under the anti-SLAPP statute is 'sincere' in his or

her statements; rather, our only concern, as required by the

statute, is that the person be truly 'petitioning' the

government in the constitutional sense." Kobrin, 443 Mass. at

338 n.14.

Second, even if the judge were to give weight to Walczak's

statement that he hoped to influence the regulators (which she

clearly did not in view of the lack of any indication that the

regulators knew of the e-mail's existence), or to simply accept

the statements at face value, Walczak also stated that he "sent

this email . . . to communicate to the hospital employees what

was happening."7 On its face, the e-mail served patient care and

7
In his affidavit, Walczak stated that he sent the e-mail
for the purpose of

"reaffirming Carney Hospital's commitment to providing the
best possible care to every patient that comes through the
doors and explaining the reasons why I decided to terminate
the employment of individuals who, in my view, had not
lived up to that standard. I sent this email not only to
communicate to the hospital employees what was happening,
but to give assurances to the regulatory agencies who were
 8

labor relations purposes separate and independent of any claimed

attempt to influence regulators. The anti-SLAPP statute

protects a narrow range of conduct based solely and exclusively

on petitioning activity. See Ehrlich, 74 Mass. App. Ct. at 536-

537. See also Duracraft, 427 Mass. at 167-168. Even if one

were to accept the defendants' view that the e-mail must be

viewed as petitioning activity as a matter of law (which both

the majority and I do not), the e-mail also served

nonpetitioning purposes. Thus, the plaintiffs' complaint "[did]

not concern solely the defendants' pursuit of legal rights."

Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 748 (2002), quoting

from Bell v. Mazza, 394 Mass. 176, 183 (1985).

For this reason above all others, the judge also correctly

ruled as a matter of law that the motion should be denied. It

bears remembering that the "sole purpose" doctrine came about as

a judicial gloss -- a gloss designed to save the statute from

constitutional infirmity.8 In Duracraft, 427 Mass. at 167, the

Supreme Judicial Court "adopt[ed] a construction of [the words]

in the process of determining whether Carney Hospital's
license to operate the Unit should be revoked that the
deficiencies which has [sic] been reported on the Unit
would not continue in that Unit or be tolerated in any
other part of Carney Hospital" (emphasis added).
8
The cases emphasizing the importance of the "sole purpose"
test are legion. See, e.g., Fabre v. Walton, 436 Mass. at 524;
Office One, Inc., 437 Mass. at 122; Cadle, 448 Mass. at 250;
Wenger, 451 Mass. at 5; Fustolo v. Hollander, 455 Mass. 861, 865
(2010); Ehrlich, 74 Mass. App. Ct. at 536-537.
 9

'based on' that would exclude motions brought against

meritorious claims with a substantial basis other than or in

addition to the petitioning activities implicated" (emphasis

added). By limiting anti-SLAPP motions to those cases where the

only basis for the plaintiffs' complaint is the defendants'

nonfrivolous petitioning activity, the court resolved the

"conundrum [that had] troubled judges and bedeviled the

statute's application" -- that is, how to protect the

defendants' right to petition the government, provided the

petition is not a sham, while at the same time also protecting

an adverse party's right to petition. Id. at 166-167. See

Kobrin, 443 Mass. at 335.

The statements attributed to Walczak in the newspaper

articles suffer from precisely the same defects as the e-mail.

The judge found the statements to the Boston Globe to be

tangential, "particularly when the defendants already were in

communication with the agencies." In addition, the Walczak

affidavit states that his comments to the Globe were an appeal

to the public, an understandable purpose in light of the

potential impact of the allegations on the confidence of

patients, donors, insurers, and business partners, but still a

nonpetitioning purpose.9 On its face, the Walczak affidavit

9
In his affidavit, Walczak stated that he spoke to the
newspaper because "I felt that it was important that I explain
 10

demonstrates that the statements to the press encompass

substantial nonpetitioning purposes.10

It matters not that the statements to the press (like the

e-mail) may have been part of an over-all strategic mission to

influence regulators. See ante at . Nor does it matter, for

First Amendment purposes, that a single act -- the statements to

the Globe -- may arguably serve both petitioning and

nonpetitioning purposes. If the conduct complained of serves a

substantial nonpetitioning purpose (such as persuading patients,

future patients, donors, future donors, insurers, and the public

at large of the quality of patient care), the complaint must go

forward. Otherwise, the scope of the anti-SLAPP statute would

expand exponentially to include protected First Amendment

petitioning activity. The result would be an interpretation of

the statute that renders it constitutionally infirm. See

Duracraft, 427 Mass. at 166-167; Kobrin, 443 Mass. at 335.

to the media, and hence to the general public and the agencies
themselves, why Carney Hospital took the actions that it did,
and what our plans were for ensuring the safety and care of our
patients going forward" (emphasis added).
10
In this regard, there is a "consequential distinction"
between Harshbarger and his law firm (Proskauer defendants) and
the Steward defendants. See ante at . The Proskauer
defendants were hired to assist in influencing the regulators.
The Steward defendants had safety, labor relations,
institutional, and commercial interests apart from the
regulatory proceedings.
 11

However, because I agree with the majority that the

statements in the press, made in response to the Massachusetts

Nurses' Association's comments on the terminations, were

protected by the mirror image doctrine, I also must agree, based

on our existing precedent, that the statements to the Globe

acquired the status of protected petitioning activity. See

Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Contrast Cadle,

448 Mass. at 251 ("Here, nothing in the record would support a

finding that the challenged statements made by Schlichtmann were

either a response to statements that Cadle had made to the press

or repetitions of statements initially made in a governmental

proceeding"). Other than the brief reference in Cadle, the

mirror image doctrine has not been considered in any depth by

the Supreme Judicial Court, and its parameters have not been

much explored by this court. Whatever those parameters may be,

I concur with the majority that the fact that the hospital was

responding to (not initiating) a press inquiry, and that the

response essentially mirrored the statements in the report

prepared by Attorney Scott Harshbarger, compels the conclusion

that this much of the claim is petitioning activity under

existing precedent.

Which leads to the final conundrum -- the ultimate

disposition of the defamation claim. In Wenger, 451 Mass. at 9,

the Supreme Judicial Court, without discussion, parsed a
 12

complaint, count by count, dismissing some counts under the

anti-SLAPP statute and preserving others. This approach has

borne some criticism, on the theory that parsing claims

undermines the "sole purpose" doctrine and results in expensive

and complicated litigation contrary to the purpose of the anti-

SLAPP statute. See One Claim at a Time: The Inherent Problems

with Piecemeal Application of the anti-SLAPP Statute, Vol. 11-n1

Mass. Bar Assn. Section Rev. (2009). Wenger remains good law,

however, and we follow it.11

This case is different in that it involves a single count

alleging two separate acts of defamation. One of our cases

since Wenger has explicitly stated that "the anti-SLAPP inquiry

produces an all or nothing result as to each count the complaint

contains. Either the count survives the inquiry or it does not,

and the statute does not create a process of parsing counts to

segregate components from those that cannot." Ehrlich, 74 Mass.

App. Ct. at 536, and cases cited. Accord Burley, 75 Mass. App.

Ct. at 821. The majority holds that the statements to the Globe

could have as easily been pleaded as two counts rather than one,

and that it would elevate form over substance to permit the

count based on the statements to the Globe to go forward, thus

distinguishing Ehrlich. Whether Wenger governs in this

11
Indeed, the defamation count here is but one of many
counts, and has been considered separately at all stages of the
litigation in accordance with Wenger.
 13

circumstance as well, or whether Ehrlich is the correct

statement of the law turns, as does much of this case, on

further clarification of the reach of the "sole purpose"

doctrine first articulated in Duracraft.

Accordingly, I concur in the result solely because I agree

with those portions of the majority opinion that hold that the

e-mail was not petitioning activity and the statements to the

Boston Globe were protected by the mirror image doctrine under

existing precedent.