No Anti‑SLAPP Shield for Private‑Employer Contacts Without a Plausible Nexus to Government Proceedings: The First Circuit’s Post‑Bristol Application in Blakesley v. Marcus

Introduction

In Blakesley v. Marcus, the First Circuit confronted a contemporary question under Massachusetts’ anti‑SLAPP statute, Mass. Gen. Laws ch. 231, § 59H, in the wake of the Massachusetts Supreme Judicial Court’s (SJC) 2024 decision in Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. The dispute stems from allegations that two family members of a divorcing spouse reported professional misconduct by nurse Rebecca Blakesley to both government bodies and private actors. When Blakesley sued for defamation and tortious interference, the defendants invoked the anti‑SLAPP statute to seek early dismissal.

The district court denied the special motion to dismiss, holding that the suit involved “mixed claims” because the defendants engaged not only in governmental reporting (which is “petitioning”) but also contacted private employers and a nursing school (which is not). On interlocutory appeal, the First Circuit assumed without deciding that it had collateral-order jurisdiction and affirmed on the merits. The Court’s decision meaningfully applies Bristol’s narrowed framework, clarifying that:

Stage one requires defendants to show the claims are based solely on petitioning activity; “mixed claims” defeat anti‑SLAPP relief at the threshold; and
Contacts with private entities do not become “petitioning” merely because those entities might become “potential witnesses” in a government investigation; there must be objective indicia of a plausible nexus to the governmental proceeding.

Summary of the Opinion

The Court affirmed the denial of the defendants’ special motion to dismiss under § 59H. Applying Bristol’s two‑stage framework, the panel agreed with the district court that stage one was not satisfied because the plaintiff’s claims were not based solely on petitioning activity. The defendants’ outreach to private employers and (unbriefed on appeal) the nursing school did not qualify as “petitioning,” nor did the defendants carry their burden to show that such outreach was “made in connection with an issue under consideration” by a government body. The Court declined to extend Massachusetts law to treat communications to “potential witnesses” as per se petitioning, emphasizing the need for a plausible nexus to governmental consideration supported by objective indicia. The Court also upheld the district court’s treatment of the two defendants as coordinated actors for stage‑one purposes.

On the jurisdictional question, the First Circuit noted the complex and divided landscape concerning interlocutory appeals of anti‑SLAPP denials and, consistent with its precedent, bypassed the thorny jurisdictional inquiry because the merits favored the party opposing jurisdiction.

Analysis

Precedents and Authorities Cited

The opinion situates its analysis within the SJC’s controlling interpretation of § 59H and the First Circuit’s approach when sitting in diversity.

Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935 (Mass. 1998): The foundational case instructing that § 59H must be construed narrowly, excluding motions aimed at meritorious claims with substantial non‑petitioning bases.
Bristol Asphalt Co. v. Rochester Bituminous Products, Inc., 227 N.E.3d 1019 (Mass. 2024): The SJC’s recent recalibration of anti‑SLAPP practice, returning to a simplified two‑stage test and re‑emphasizing strict construction and caution. Stage one places on the movant the burden to show the claims are based solely on petitioning; only then does stage two assess whether the petitioning was “devoid of any reasonable factual support or any arguable basis in law” and caused actual injury.
477 Harrison Ave., LLC v. Jace Boston, LLC, 74 N.E.3d 1237 (Mass. 2017): Clarifies that the stage‑one inquiry examines the conduct alleged, not the actor’s motive.
Blanchard v. Steward Carney Hospital, Inc., 75 N.E.3d 21 (Mass. 2017), overruled on other grounds by Bristol: Explains that statements are “in connection with” a governmental proceeding only where a “plausible nexus” exists, gauged by objective indicia (timing, audience, content) and whether the communication was meant to inform, influence, or at least reach the government.
Wynne v. Creigle, 825 N.E.2d 559 (Mass. App. Ct. 2005): Press statements that are “mirror images” of statements made to the governmental body may qualify as “in connection” with the proceeding.
Plante v. Wylie, 824 N.E.2d 461 (Mass. App. Ct. 2005): Settlement communications between the parties to a governmental proceeding may qualify as “in connection with” that proceeding because they are designed to influence its outcome.
Global NAPs, Inc. v. Verizon New England, Inc., 828 N.E.2d 529 (Mass. App. Ct. 2005): Not all public statements about a pending proceeding are petitioning; where a press statement is merely an oblique reference and not a “mirror image” of the government submission, § 59H protection does not attach.
Erie framework: As a federal court sitting in diversity, the First Circuit predicts how the SJC would rule (e.g., Smith v. Prudential Ins. Co. of America; Lawrence General Hospital v. Continental Casualty Co.). It exercises caution before extending state law (Doyle v. Hasbro, Inc.; Markham v. Fay).
Collateral order doctrine: The Court references Godin v. Schencks; Lee‑Barnes v. Puerto Ven Quarry Corp.; Doe v. Town of Lisbon; Digital Equipment Corp. v. Desktop Direct Inc.; the split among circuits on appealability of anti‑SLAPP denials (e.g., Ninth Circuit’s en banc Gopher Media LLC v. Melone rejecting appealability; Tenth Circuit’s Coomer v. Make Your Life Epic LLC; Second Circuit’s Ernst v. Carrigan; contrasted with Fifth Circuit’s Henry v. Lake Charles American Press, L.L.C.). The First Circuit relies on its practice of assuming jurisdiction to reach a merits outcome favoring the non‑appellant on jurisdiction (In re Financial Oversight & Management Board for Puerto Rico; Nisselson v. Lernout).

Legal Reasoning

The heart of the decision applies Bristol’s streamlined, narrow approach. Stage one asks whether the plaintiff’s claims are based solely on the defendants’ petitioning activity. The defendants bore the burden to demonstrate that the conduct underlying Blakesley’s defamation and tortious interference claims consisted only of petitioning. They could not.

The Court accepted that reports to government bodies (e.g., HHS/OCR, a state health department, and the Massachusetts Board of Registration in Nursing (BORN)) are petitioning. The problem for the defendants was their additional outreach to private employers and a nursing school, which the district court deemed non‑petitioning. Because the claims thus rested on both petitioning and non‑petitioning conduct, they were “mixed claims,” which Bristol says fall outside the statute’s early‑dismissal remedy and should proceed in ordinary litigation.

Attempting to save their motion, the defendants posited that their private‑entity communications were nevertheless “made in connection with an issue under consideration” by government — essentially, because the employers might be witnesses in the BORN investigation or because these communications “reiterated” points made to regulators. The Court rejected this as a matter of Massachusetts law:

“In connection with” requires a plausible nexus established through objective indicia (timing, audience, content), with the touchstone being whether the communication was meant to influence, inform, or reach the government directly or indirectly.
The defendants’ cited authorities do not stretch as far as they claim. Blanchard and Wynne involved statements to the press that were mirror images of governmental submissions, or that directly responded to a public-facing counterpart in an ongoing proceeding. Plante concerned settlement communications between the actual adversaries in a government matter. None involved outreach to purported “potential witnesses,” and the First Circuit identified no Massachusetts decision blessing that category as petitioning per se.
Exercising Erie restraint, the Court declined to extend Massachusetts law to treat communications to potential witnesses as automatically “in connection with” a government proceeding. On the record and arguments presented, the defendants showed no plausible nexus.
The defendants also waived any appellate argument that contacting the nursing school constituted petitioning; their opening brief did not develop that contention, and the court applied ordinary waiver principles.

Finally, the Court upheld the district court’s view that the two defendants plausibly coordinated their outreach, noting that Colleen’s BORN complaint referenced Jennifer’s reports to OCR and the nursing school. Given Bristol’s admonition to apply the “strong medicine” of § 59H cautiously, the Court found no basis to excise Colleen from the case at the threshold merely because she personally contacted only governmental bodies.

Impact

Blakesley carries several practical and doctrinal implications for Massachusetts anti‑SLAPP practice, especially in federal court:

Narrower stage‑one gatekeeping after Bristol: Defendants must now cleanly segregate petitioning from non‑petitioning conduct. If a plaintiff’s claims rest substantially on non‑petitioning acts (such as contacting private employers or schools), the case is “mixed” and not eligible for early dismissal under § 59H.
“Potential witnesses” is not a shortcut: Outreach to private entities cannot be rebranded as petitioning merely because those entities might become witnesses. Without objective indicia that the communication was designed to reach or influence the government, the “in connection with” pathway fails.
Press and settlement communications remain narrow carve‑outs: Following Blanchard, Wynne, Plante, and Global NAPs, statements to the press may qualify only when they are mirror images of governmental submissions or are otherwise clearly tethered to influencing the proceeding, and settlement communications between parties to the proceeding may qualify. These are narrow contexts, not general permission to publicize allegations.
Coordination matters: Joint actors cannot evade Bristol’s stage‑one requirement by dividing roles between governmental and private outreach. Where coordination is plausible, courts may consider the combined course of conduct in assessing whether claims are “based solely” on petitioning.
Interlocutory appeals remain uncertain: The First Circuit flagged the split over the appealability of anti‑SLAPP denials and did not resolve it. Counsel should not assume immediate appellate review and may need to consider alternative routes (e.g., certification under 28 U.S.C. § 1292(b), or awaiting final judgment).
Substantive defenses preserved: Denial of an anti‑SLAPP motion at stage one does not adjudicate the merits. Defendants can still assert traditional defenses (truth, opinion, privileges, lack of fault, lack of causation) and seek summary judgment on a developed record.
Reporting professional misconduct: Individuals who report to both regulators and private employers should be aware that the anti‑SLAPP statute may not insulate the private‑entity contacts. Other privileges may apply depending on context, but § 59H is not a universal shield.
Strategic pleading and motion practice: Plaintiffs alleging defamation or interference tied to regulatory complaints may avoid anti‑SLAPP dismissal by grounding claims in non‑petitioning conduct (e.g., employer outreach). Defendants seeking § 59H relief should be prepared to show that the plaintiff’s claims target only petitioning conduct and that any ancillary communications fall within recognized, narrow “in connection” categories.

Complex Concepts Simplified

Anti‑SLAPP (Strategic Lawsuit Against Public Participation): A statute designed to quickly dismiss meritless suits filed to chill a person’s right to petition the government (e.g., by filing complaints with regulatory bodies).
Petitioning activity: Under § 59H, statements to a legislative, executive, or judicial body, or other governmental proceeding; statements made “in connection with” an issue under government consideration; statements likely to encourage such governmental review; or statements otherwise within constitutional petitioning protection.
Bristol’s two‑stage framework:
- Stage one: The movant (defendant) must show the claims are based solely on its petitioning activity. If not, the motion fails.
- Stage two: If stage one is met, the opponent (plaintiff) can defeat dismissal by showing the petitioning lacked reasonable factual support or an arguable basis in law and caused actual injury.
Mixed claims: Claims based on both petitioning and non‑petitioning conduct. After Bristol, such claims are not subject to anti‑SLAPP dismissal and should proceed through ordinary litigation.
“In connection with” and the plausible‑nexus test: To transform a non‑governmental communication into petitioning, there must be objective evidence that the communication was meant to inform, influence, or reach the government about an issue under its consideration (e.g., timing relative to the proceeding, audience selection, content mirroring government submissions).
Collateral order doctrine: A narrow exception allowing some interlocutory appeals of non‑final orders. Whether denials of anti‑SLAPP motions qualify is contested among the circuits. The First Circuit often assumes jurisdiction when it will affirm, thereby avoiding a definitive ruling on appealability in that case.
Erie “prediction”: In diversity, federal courts apply state substantive law and predict how the state’s highest court would rule, avoiding novel extensions of that law absent clear guidance.

Conclusion

Blakesley v. Marcus is a careful, post‑Bristol application of Massachusetts’ anti‑SLAPP law. The First Circuit reaffirms that the statute’s “strong medicine” is reserved for a narrow class of cases where claims are based solely on petitioning. When a plaintiff’s claims rest substantially on non‑petitioning conduct — here, outreach to private employers and a nursing school — stage one fails and early dismissal is inappropriate. The decision also resists expanding Massachusetts law to deem communications with “potential witnesses” as per se petitioning, insisting instead on objective indicia of a plausible nexus to government consideration.

Going forward, defendants seeking anti‑SLAPP dismissal must carefully demonstrate that the claims target only protected petitioning, and they should not expect private‑entity outreach to be swept into § 59H’s shelter without clear, government‑facing ties. Plaintiffs, in turn, can survive anti‑SLAPP motions by pleading and substantiating non‑petitioning conduct as a substantial basis for their claims. In an appellate environment where immediate review remains unsettled, Blakesley’s merits disposition provides a detailed roadmap for both sides in the increasingly refined terrain of Massachusetts anti‑SLAPP practice after Bristol.