Anti-SLAPP Watch: To Parse or not to Parse - SJC Grants FAR in Blanchard v. Steward County Hospital,
The case raises questions about the scope of anti-SLAPP protection for statements made to the press and whether the anti-SLAPP statute allows (or constitutionally could allow) parsing and dismissal of only a portion of a single claim when the claim is based in part on petitioning activity and in part on other conduct.
Blanchard is a defamation case filed by nurses against their former employer, the defendant hospital, and its president that arose from statements the president made in an internal email and to the press regarding an investigation about complaints about abuse and neglect of patients at the hospital. The internal email stated that terminated employees (which included the plaintiff nurses) had "not been acting in the best interest of the patients, the hospital, or the community [they] serve" and that "[a]s a result, [he has] terminated the employment of each of the individuals." The Boston Globe quoted the hospital president who described an internal investigation report that recommended "to start over on the unit [in which the plaintiff nurses had worked" and "described 'serious concerns about patient safety and quality of care'" and stated, "We will have top notch employees replace those who left." The plaintiff nurses were terminated, but were not those whose conduct was at issue in the investigation.
After the trial court denied defendants' special motion to dismiss under the anti-SLAPP statute, the Appeals Court affirmed in part and reversed in part. There was much to dislike about the decision.
The Appeals Court concluded that the hospital president's statements to the Boston Globe constituted protected petitioning activity because they were made in the context of scrutiny from the regulatory licensing agencies and public pressure on those agencies to close the unit and withdraw its license. By contrast, the Appeals Court concluded that the hospital president's internal email to hospital staff did not because while the email may have been part of the overall strategy to address unit conditions with hopes of influencing regulators, there was nothing to indicate the email itself had been provided to regulators or that regulators were told about it.
The Appeals Court reversed the trial court's denial of the special motion to dismiss insofar as it had allowed the entire defamation claim to survive, and concluded that while the claim survived, it could not be based on the hospital president's statements to the Globe, only on his internal email.
The decision extended anti-SLAPP protection for press statements far beyond the "mirror image" rule in Wynne v. Creigle and beyond what has been recognized before by allowing protection for statements made to the press about an internal investigative report by outside counsel.
The panel also for the first time applied the anti-SLAPP statute to dismiss only a portion of a single claim notwithstanding the SJC's holding in Duracraft v. Holmes Prods. Corp., that a party seeking dismissal based on the anti-SLAPP statute must show that a claim is "based solely" on petitioning activity even to move on to the second prong of the anti-SLAPP analysis. Until Blanchard, an anti-SLAPP motion produced an "all or nothing" result at least as to each single claim, to avoid the constitutional "conundrum" identified in Duracraft that the anti-SLAPP statute creates since early dismissal of a lawsuit itself infringes upon petitioning activity.
Blanchard is one to watch at the SJC given the proliferation of anti-SLAPP motions and the litigation within litigation the statute has created in the last two decades. T