Marie-Armel Theodat v. Boston Water and Sewer Commission, and Others[1]

Opinion

Marie-Armel Theodat used to work for the Boston Water and Sewer Commission (the “Commission”) as its Chief Human Resources Officer. Theodat, who is a Black, Haitian-American woman, alleges that she was mistreated by her employer and colleagues because of her race, national origin, and sex, and that the Commission retaliated against her when she complained.

Michael F. Flaherty, Jr., served as Deputy General Counsel and then General Counsel for the Commission during part of the time that Theodat worked there. Sean Canty was the Commission’s Director of Facilities and Safety. The Boston Herald published 20 articles and an editorial about Theodat starting in late 2024; Theodat says they were instigated by Flaherty and Canty as part of a campaign of harassment. Many of the articles discussed or mentioned civil lawsuits against Theodat, including a lawsuit filed by Attorney Ricardo Arroyo on behalf Theodat’s granduncle, who claimed that Theodat had participated in a fraudulent scheme to obtain ownership of her relative’s home.

BWSC fired Canty in 2024, placed Theodat on paid administrative leave in December 2024, fired Flaherty in January 2025, and fired Theodat in April 2025. Theodat alleges that Vitale signed the letter terminating her employment days after Mayor Michelle Wu and her advisor Louis Mandarini told him to do so.

--------------------------------------------

[1]       Michael J. Woodall; Christopher Cook; Armindo Goncalves; Henry F. Vitale; Peter K. Hunt; Robert M. Lamarca; Janet M. Mahoney; Michael F. Flaherty, Jr.; Sean P. Canty; Michelle Wu; Louis Mandarini III; Ricardo N. Arroyo; MediaNews Group, Inc; MNG-BH Acquisition LLC d/b/a The Boston Herald; Joseph N. Dwinell; Gayla Cawley; and Traveler’s Casualty and Surety Company of America.

                                                            -1-

Theodat filed a 78-page, 277-paragraph amended complaint that incorporates 23 exhibits. In her amended complaint, Theodat asserts that:

o          the Commission, its Board members Michael Woodall, Christopher Cook, and Armindo Goncalves, its Executive Director Henry Vitale, its Chief Operating Officer Peter Hunt, and its Deputy General Counsels Robert LaMarca and Janet Mahoney (the “BWSC Defendants”), as well as Flaherty and Canty, discriminated against Theodat on the basis of her race, national origin, and sex, and retaliated against her for complaining about that misconduct;

o          the owner of the Boston Herald newspaper (MNG-BH Acquisition LLC), its parent company (MediaNews Group, Inc.), its Executive Editor (Joseph Dwinell), and one of its reporters (Gayla Cawley) (which Theodat calls the “Herald Defendants”), as well as the BWSC Defendants, Flaherty, and Canty are all liable for defamation;

o          Mayor Wu, Mandarini, the Herald Defendants, Flaherty, and Canty are liable for intentionally interfering with Theodat’s employment at the Commission;

o          the Commission (but not the other BWSC Defendants), Flaherty, Canty, Arroyo, and the Herald Defendants are liable for invasion of privacy;

o          all of the defendants mentioned above are liable for intentional infliction of emotional distress;

o          Flaherty, Canty, Arroyo, and the Herald Defendants engaged in a civil conspiracy;

o          the Commission violated the public records statute; and

o          the Commission’s employment practices liability insurer, Travelers Casualty and Surety Company of America, violated G.L. c. 93A and G.L. c. 176D with respect to Theodat’s claims against the Commission.

All of the defendants other than Canty and Travelers have moved to dismiss the claims asserted against them.[2]  With one exception, the various defendants

[2]        Canty filed an answer, as well as counterclaims for tortious interference and defamation, in late April 2026. Theodat stipulated that she is not pressing her

            <continued…>

                                                            -2-

have moved to dismiss the claims against them under Mass. R. Civ. P. 12(b)(6), arguing that the facts alleged by Theodat in her amended complaint fail to state viable claims against them. Attorney Arroyo has moved to dismiss the claims against him under the so-called anti-SLAPP statute, G.L. c. 231, § 59H. He has not moved for dismissal under Rule 12(b)(6).

The BWSC Defendants have also moved to strike certain parts of the complaint and to impound exhibits submitted with their motion to strike. Several days ago the BWSC Defendants filed an additional motion challenging the authenticity of a particular document that Theodat submitted in response to their motion to dismiss.

For the reasons discussed below, the Court will:

o          deny the BWSC Defendants’ motion to strike certain paragraphs from the amended complaint, motion to impound certain exhibits that they submitted in support of the motion to strike, and motion for expedited discovery and an evidentiary hearing regarding the authenticity of a document submitted by Theodat;

o          allow in part the BWSC Defendants’ motion to dismiss with respect to (a) the hostile work environment claim as against Woodall, Cook, Goncalves, Vitale, and Hunt; (b) the claim under G.L. c. 151B based on being placed on involuntary leave claim as against LaMarca and Mahoney; (c) the c. 151B claim based on the termination of Theodat’s employment as against Woodall, Cook, Goncalves, Hunt, LaMarca, and Mahoney; (d) the invasion of privacy claim against the Commission; and (e) the defamation and intentional infliction of emotional distress claims against each of the BWSC Defendants;

o          deny in part the BWSC Defendants’ motion to dismiss with respect to (a) the hostile work environment claim against the Commission itself, LaMarca, and Mahoney; (b) the c. 151B claim based on being placed on involuntary leave as against the Commission, Woodall, Cook, Goncalves, Vitale, and Hunt; (c) the c. 151B claim based on the termination of Theodat’s employment as against the Commission and Vitale; and (d) the Public Records Act claim against the Commission.

claim for intentional infliction of emotional distress against the Travelers and that her chapter 93A claim shall be severed and stayed until the claims against the BWSC Defendants are resolved.

                                                            -3-

o          allow in part Flaherty’s motion to dismiss with respect to the c. 151B claim based on the termination of Theodat’s employment at the Commission and the claims for defamation, invasion of privacy, and intentional infliction of emotional distress;

o          deny in part Flaherty’s motion with respect to the hostile work environment claim, the c. 151B claim based on being placed on involuntary leave claim, and the claims for intentional interference with advantageous relations and conspiracy;

o          deny Arroyo’s anti-SLAPP motion to dismiss;

o          allow the motion to dismiss the intentional interference and intentional infliction of emotional distress claims against Mayor Wu and Mandarini; and

o          allow the motions to dismiss the claims against MediaNews Group, Inc., MNG-BH Acquisition LLC d/b/a The Boston Herald, Dwinell, and Cawley.

The Court will also set a July 1, 2026, deadline for the remaining parties to submit a proposed case schedule and ask its session clerk to set a time for a scheduling conference soon thereafter.

1. Boston Water & Sewer Commission Defendants. The Court will begin by addressing separately each of the three motions filed by the BWSC Defendants.

1.1. Motion to Strike. The BWSC Defendants have moved to strike several paragraphs from Theodat’s amended complaint, arguing that four paragraphs improperly reveal “confidential mediation information” and that other paragraphs “improperly expand the scope of the plaintiff’s employment claims beyond the previous [Massachusetts Commission Against Discrimination, or MCAD] proceeding.” The Court will deny this motion because neither of these arguments has merit.

1.1.1. References to Mediation. First, the paragraphs identified in the motion do not violate the statute that protects a mediator’s work product as well as confidential communications “made in the presence of such mediator.” See G.L. c. 231, § 23C. This statute does not protect communications made outside the presence of the mediator. See ZVI Const. Co., LLC v. Levy, 90 Mass. App. Ct. 412, 420 (2016). None of the paragraphs that the BWSC Defendants seek to strike reveal any confidential communications made in the mediator’s presence.

                                                            -4-

The paragraphs identified in the motion also do not violate the provision in the mediation agreement reflecting the principal that settlement offers or communications may not be offered “either to prove or disprove the validity or amount of a disputed claim.” See Mass. Guide to Evid. § 408.

Paragraph 153 merely notes that Theodat and many of the BWSC Defendants agreed to try to resolve their dispute with the help of a mediator. Paragraph 165 asserts that the mediation took place, that Theodat provided information about her claimed injuries, and that the mediation did not lead to any resolution. Paragraph 166 describes a post-mediation communication from counsel for the BWSC Defendants to Theodat’s counsel. Paragraph 167 alleges that the BWSC Defendants’ counsel refused to provide a document that was the subject of a public records request.

None of these allegations is improper, as evidence to establish these assertions would not be barred at trial for either of the reasons asserted by the BWSC Defendants. These allegations do not disclose the mediator’s work product, do not reveal communications made in the presence of the mediator, and are not offered to prove the validity or amount of Theodat’s claims.

The mere fact that these four paragraphs refer to the prior mediation does not make them improper.

1.1.2. Scope of MCAD Charge. Second, the other paragraphs in the amended complaint that are challenged by the BWSC Defendants do not impermissibly expand the scope of Theodat’s c. 151B claims beyond what she alleged before the MCAD.

Of course, it would not be appropriate to strike any part of the amended complaint even if Theodat were making discrimination claims that are barred because she did not timely present them to the MCAD. That may be grounds for moving to dismiss certain claims, but is not a ground to strike allegations from the pleading.

But the premise of this part of the BWSC Defendants’ motion to strike is without merit.

Theodat “was not required to return to the MCAD to file a second complaint” before asserting a claim of unlawful retaliation in violation of G.L. c. 151B based on conduct that occurred after she filed her original MCAD charge.  See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 389 n.19 (2005); accord Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 529 n.8 (2001).

                                                            -5-

Nor was Theodat required to present to the MCAD every jot and tittle of evidence that she may offer in court to support her discrimination claims. See Everett v. 357 Corp., 453 Mass. 585, 602–603 (2009). To the contrary, “a claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent Superior Court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover.” Pelletier v. Town of Somerset, 458 Mass. 504, 514 (2010), quoting Everett, supra, at 603. The BWSC Defendants have not shown that the additional allegations that they seek to strike were outside the scope of the what the MCAD investigation could have been expected to discover.

Furthermore, nothing in the amended complaint purports to add a new claim for disability discrimination, as Theodat properly notes in her opposition memorandum. Theodat is bound by her agreement that the mistaken reference to G.L. c. 151B, § 4(16), was a typographical error.

Finally, the allegations in the complaint do not show that Theodat’s tort claims against the BWSC Defendants are essentially duplicative of her statutory discrimination claims.

1.2. Motion to Impound. The BWSC Defendants have also asked the Court to impound two emails regarding the prior mediation that they opted to submit in support of their failed motion to strike. The Court will deny this motion because the BWSC Defendants have not shown that there is good cause to keep these materials out of the public case file.

Pleadings, exhibits, and other materials filed in connection with a civil or criminal action in Massachusetts courts may be viewed and copied by the public unless the party seeking to keep them secret establishes that there is “good cause” for impounding them and thus barring public access to them. See Commonwealth v. George W. Prescott Publishing Co., 463 Mass. 258, 269 (2012); New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business, 462 Mass. 76, 83 (2012).

“Massachusetts has long recognized a common-law right of access to judicial records.” New England Internet Café, 462 Mass. at 82, quoting The Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). “As a result, most judicial records— including transcripts, evidence, memoranda, court orders and … material relating to the issuance of search warrants (after the warrant is returned)—are presumptively public documents.” Id. at 83. This “presumption of public access ‘enhances public confidence in the judicial system.’ ” DosSantos v. Beth Israel

                                                            -6-

Deaconess Hospital-Milton, Inc., 497 Mass. 34, 41 (2026), quoting Commonwealth v. Chism, 476 Mass. 171, 178 (2017). Judges may restrict “[t]he public’s right of access to judicial records, … but only on a showing of ‘good cause.’ ” The Republican, supra, at 223.

“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be ‘strictly construed in favor of the general principle of publicity.’ ” The Republican, supra, quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950). “Closing a court record is analogous to closing a courtroom during a trial—both deny the public a right of access to see what is happening in a judicial case and both restrictions are of constitutional dimension.” Globe Newspaper Co. v. Clerk of Suffolk Cnty. Superior Ct., Suffolk Super. Ct. No. 01-5588-F, 2002 WL 202464, at *4 (Mass. Super. Feb. 4, 2002) (Gants, J.) (terminating impoundment orders in civil cases alleging sexual abuse by clergy).

“[T]he party urging impoundment … bears the burden of ‘demonstrating the existence of good cause’ ” to bar public access to parts of the case file. New England Internet Café, 462 Mass. at 83, quoting The Republican, 442 Mass. at 225.

The BWSC Defendants have not met that burden here. For the same reasons discussed above, their assertion that G.L. c. 233, § 23C, requires that these emails be kept confidential is incorrect.

1.3. BWSC Defendants’ Motion to Dismiss. Turning to their more substantive motion, the BWSC Defendants have moved to dismiss all of the claims against them pursuant to Mass. R. Civ. P. 12(b)(6). The Court will dismiss some of the claims against some of the BWSC Defendants, but concludes that others are legally sufficient.

To survive a Rule 12(b)(6) motion to dismiss, a complaint must make factual allegations that, if true, would “plausibly suggest … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). In deciding the Rule 12(b)(6) motions to dismiss that were filed in this case, the Court must assume that all of the factual allegations in Theodat’s amended complaint are true and must “draw every reasonable inference in favor of” Theodat from those allegations. See, e.g., Miele v. Foundation Medicine, Inc., 496 Mass. 171, 175 (2025).

1.3.1. Unlawful Discrimination Claims under Chapter 151B. The first three counts of Theodat’s amended complaint allege that each of the BWSC

                                                            -7-

Defendants engaged in unlawfully discriminatory and retaliatory conduct or actions against Theodat that violated G.L. c. 151B.

1.3.1.1. Limitations Period. The BWSC Defendants ask the Court to dismiss Theodat’s discrimination and retaliation claims to the extent that they are based on events that occurred more than 300 days before she filed a charge with the MCAD, arguing that any such claims are time-barred. A person may not sue their employer or former employer in Superior Court under c. 151B unless they first file a charge of discrimination at the MCAD within 300 days of the alleged act or acts of discrimination. See G.L. c. 151B, § 5; Cuddyer, 434 Mass. at 531 & n.11 (referring to prior six month filing deadline). Theodat filed her MCAD charge on March 16, 2025. The BWSC Defendants argue that she therefore “may only bring Chapter 151B claims for conduct that arose on or after May 21, 2024.”

The Court is not persuaded. The facts alleged in Theodat’s amended complaint plausibly suggest that she was the victim of a “continuing violation” of c. 151B by some of the BWSC Defendants, and thus that she may press her claims even though they are based in part on events that happened more than 300 days before Theodat filed her MCAD charge.

“Although the limitations clock” under c. 151B “generally starts with the commission of a discriminatory act, a true ‘continuing violation’ rewinds the clock for each discriminatory episode along the way.” Cuddyer, 434 Mass.      at 531, quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989).

The continuing violation doctrine allows an individual to seek damages for adverse employment actions that occurred outside the usual statute of limitations period “if the alleged events are part of an ongoing pattern of” of unlawful conduct “and there is a discrete violation within the ... limitations period to anchor the earlier claims.” Cuddyer, supra, at 532. “This exception recognizes that some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess adequately their discriminatory nature and impact.” Id. at 531. This doctrine applies to claims challenging a course of conduct that, as a whole, amounts to unlawful discrimination but that does not involve discrete acts each of which is unlawful standing alone. See Crocker v. Townsend Oil Co., 464 Mass. 1, 11 (2012); Silvestris

v. Tantasqua Reg. School Dist., 446 Mass. 756, 768–769 (2006).

The facts alleged in the amended complaint plausibly suggest that Theodat was subject to a pattern of harassment that constituted an unlawfully discriminatory hostile work environment, some of the allegedly discriminatory

                                                            -8-

acts occurred less than 300 days before Theodat filed her MCAD charge, those acts had a substantial relationship to earlier discriminatory acts that occurred more than 300 days before that charge, and the earlier acts did not trigger a duty to assert a claim. If Theodat can prove those things, then she may press her claims based in part on the earlier conduct under the continuing violation doctrine. See Padmanabhan v. Cambridge, 99 Mass. App. Ct. 332, 337 (2021).

The Supreme Judicial Court has construed G.L. c. 151B to impose a limitation on continuing violations claims that is relevant here. Under c. 151B, an employee who has been subjected to a pattern of “harassment that creates a hostile work environment and that includes conduct within the” statutory limitations period “may claim the benefit of the continuing violation doctrine and seek damages for conduct that occurred outside the limitations period, unless the plaintiff knew or reasonably should have known that her work situation was pervasively hostile and unlikely to improve…” (emphasis added). Cuddyer, 434 Mass. at 539.

But none of these issues may be resolved on a motion to dismiss. Whether Theodat can show that she was subject to a pattern of harassment, whether earlier conduct had a substantial relationship to alleged discrimination that occurred within the 300-day limitations period, “and whether the plaintiff knew or reasonably should have known before that period that the work situation was pervasively hostile and unlikely to improve” are questions of fact that generally must be resolved by a jury at trial, not questions of law for the Court to decide. See Pelletier v. Town of Somerset, 458 Mass. 504, 520–521 (2010); accord Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 621–622 (2005); Cuddyer, 434 Mass. at 541–542. That Theodat alleged in April 2023 that she was being subjected to a hostile work environment does not automatically establish that she knew or should have known that the situation was unlikely to improve; that is question of fact that will have to be decided at trial. See Pelletier.

1.3.1.2. G.L. c. 151B—Hostile Work Environment. Count I of the amended complaint alleges that each of the BWSC Defendants (as well as Flaherty and Canty) subjected Theodat to a hostile work environment in violation of G.L. c. 151B. The Court will deny the motion to dismiss this claim as against the Commission itself, LaMarca, and Mahoney. But it will allow the request to dismiss this claim against the other individual BWSC Defendants.

“A hostile work environment is one that is ‘pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the full participation of an individual in the

                                                            -9-

workplace.’ ” Cuddyer, 434 Mass. at 532, quoting College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrim., 400 Mass. 156, 162 (1987). “An employer may be found directly liable for discrimination under G.L. c. 151B, § 4, if it is notified of [unlawfully discriminatory] harassment in its workplace” by a non-supervisory employee “and fails to take adequate remedial action.” Trinh v. Gentle Communications, LLC, 71 Mass. App. Ct. 368, 376 (2008). Thus, c. 151B “imposes a duty ‘to take prompt action reasonably calculated to end the harassment and reasonably likely to prevent the conduct from recurring.’ ” Modern  Continental/Obayashi  v.  Massachusetts  Comm’n  Against  Discrim.,   445 Mass. 96, 108–109 (2005), quoting Berry v. Delta Airlines, Inc., 260 F.3d 803, 813 (7th Cir. 2001).

Theodat has alleged facts plausibly suggesting that LaMarca and Mahoney— along with Flaherty and Canty—took a series of actions that constituted unlawful harassment of Theodat because of her race, national origin, and sex, and that the Commission was aware of failed to remedy the situation.

Though Theodat alleges that she was harassed for other reasons as well, including the various civil lawsuits against Theodat, that does not negate her allegations suggesting that the conduct that created the alleged hostile work environment was motivated at least in part by her race, national origin, and sex. Theodat’s factual allegations plausibly suggest that LaMarca and Mahoney (and Flaherty and Canty) had mixed motives for harassing her and creating a hostile work environment, and at least one of those reasons was unlawful under G.L. c. 151B. That suffices to state a hostile work environment claim under a mixed-motive theory. If an employer or colleague takes adverse action against an employee based in part on factors that make the conduct illegal under c. 151B, and in part on other factors that do not implicate c. 151B, the employee may press a discrimination claim based on a “mixed motive” theory. See generally Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 112–114 (2009). The BWSC Defendants have not identified any Massachusetts appellate decision holding that a mixed-motive analysis can never apply to hostile work environment claims.

However, nothing in the amended complaint plausibly suggests that Woodall, Cook, Goncalves, Vitale, or Hunt participated in creating a hostile work environment for Theodat.

Theodat cannot use undifferentiated group pleading to assert a hostile work environment claim against all of the BWSC Defendants. The conclusory assertion that “Defendants subjected Theodat to a hostile work environment”

                                                            -10-

does not suffice in the absence of particularized allegations as to each individual’s alleged role in doing so. See Lee v. Volumetric Holdings GP LLC, 2024 WL 4134321, at *3 (Sept. 9, 2024) (Casper, J.) (dismissing c. 151B claims based on undifferentiated allegations against group of seven defendants).

“In order to satisfy the minimal requirements of notice pleading, a plaintiff cannot ‘lump’ multiple defendants together and must ‘state clearly which defendant or defendants committed each of the alleged wrongful acts.’ ” Canales v. Gatzunis, 979 F. Supp. 2d 164, 170 (D. Mass. 2013) (Tauro, J.), quoting Bagheri v. Galligan, 160 Fed.Appx. 4, 5 (1st Cir.2005) (affirming dismissal); accord Schlumberger Technology Corp. v. ARE-MA Region No. 103, LLC, Suffolk Super. Ct. civ. a. 2384CV02767-BLS1, slip op. at 4–5, 2024 WL 2091831, at *2, 2024 Mass. Super. LEXIS 40, at *5 (Mass. Super. April 8, 2024) (Krupp, J.) (dismissing complaint because “ ‘lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct’ failed to give adequate notice of claims”) (quoting Atuahene v. City of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. 2001) (affirming dismissal)).

Theodat has not identified any allegations in her lengthy complaint that plausibly suggest any of these other BWSC officials or employees may be personally liable on a hostile work environment theory.

1.3.1.3. G.L. c. 151B—Being Placed on Leave. Count II claims that each of the BWSC Defendants (as well as Flaherty and Canty) violated G.L. c. 151B by causing her to be placed on involuntary administrative leave.

The amended complaint alleges that Theodat was first placed on administrative leave in March 2023 at Vitale’s direction. It also alleges that she was placed on administrative leave a second time in December 2024, and that Woodall, Goncalves, Cook, Vitale, and Hunt all participated in deciding to impose that involuntary leave.

The facts alleged in the amended complaint state a viable claim against these individuals, and therefore against the Commission, that the decisions to place her on administrative leave was based on her race, national origin, and sex, and were also undertaken in retaliation for her complaints about being subjected to a hostile work environment. The Court will therefore deny the motion to dismiss count II as against these BWSC Defendants.

Here, too, Theodat may proceed on a mixed-motive theory, so her allegation that a jury rendered a verdict against her shortly before she was placed on administrative leave the second time does not fatally undermine this claim.

                                                            -11-

The BWSC Defendants’ assertion that Counts II and III must be dismissed because Theodat failed to identify any similarly situated individual who was treated more favorably than Theodat is incorrect. A plaintiff asserting a claim of unlawful discrimination under c. 151B is not required to make allegations, or later on present evidence, that a “similarly situated comparator” was treated more favorably; where such evidence exists it is often highly probative, but “it is not absolutely necessary.” See Trustees of Health and Hospitals of City of Boston, Inc. v. Mass. Comm’n Ag. Discrim., 449 Mass. 675, 682–683 (2007).

However, Theodat points to no factual allegations in her complaint that plausibly suggest LaMarca or Mahoney had anything to do with the decisions to place Theodat on leave. The Court will therefore allow the motion to dismiss count II as against LaMarca and Mahoney.

1.3.1.4. G.L. c. 151B—Termination of Employment. Count III claims that the termination of Theodat’s employment with the Commission in April 2025 violated c. 151B because it was based on her race, national origin, and sex, and was done in retaliation for having filed an MCAD complaint.

The amended complaint states that the termination letter was signed by Vitale. It does not allege that any of the other BWSC Defendants had any involvement in the decision to fire Theodat.

The Court will deny the motion to dismiss count III as against Vitale and the Commission, because the facts alleged in the complaint plausibly suggest that they terminated Theodat’s employment for reasons that violate c. 151B. But it will allow the motion to dismiss this claim as against the other BWSC Defendants. Once again, Theodat may not engage in group pleading that lumps all of the BWSC Defendants together without indicating how each of them participated in the decision to terminate her employment.

1.3.2. Tort Claims. Theodat asserts three different tort claims against some or all of the BWSC Defendants. Count VI alleges that the BWSC Defendants are liable for defamation. Count XII alleges that they are liable for intentional infliction of emotional distress. And count X alleges that the Commission itself, but not any of the individual BWSC Defendants, is liable for invasion of privacy

1.3.2.1. Tort Claims against the Commission. The claims that the Commission committed these three intentional torts are barred by the Massachusetts Tort Claims Act. The Court will allow BWSC’s motion to dismiss these claims.

                                                            -12-

This Tort Claims Act provides all covered “public employers with immunity against ‘any claim arising out of an intentional tort.’ ” Theisz v. Mass. Bay Transp. Auth., 495 Mass. 507, 520 (2025), quoting G.L. c. 258, § 10(c). This provision also “precludes a public employer from being held vicariously liable for the intentional tort of a public employee.”

The Commission is subject to the Tort Claims Act because the statute was amended in 1992 to include all local water and sewer commissions in the definition of public employer, even if they “may qualify as independent bodies politic and corporate for other purposes.” Alex v. Boston Water & Sewer Comm’n, 45 Mass App. Ct. 914, 914 (1998) (rescript).

As a result, Theodat’s intentional tort claims against the Commission for defamation, invasion of privacy, and intentional infliction of emotional distress are all barred by the Tort Claims Act. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 626–630 (2012) (defamation claims against public employers are barred); Tivnan v. Registrar of Motor Vehicles, 50 Mass. App. Ct. 96, 102 (2000) (invasion of privacy claims); Tilton v. Town of Franklin, 24 Mass. App. Ct. 110, 112–113 (1987) (intentional or reckless infliction of emotional distress claims).

1.3.2.2. Defamation Claims against Individual BWSC Defendants. The Court will also allow the motion to dismiss the defamation claims against the individual BWSC officials and employees.

To state a viable claim for defamation, Theodat must allege facts plausibly suggesting that (1) each defendant “published a defamatory statement” about Theodat, (2) “the statement was a false statement of fact (as opposed to opinion)”, (3) the defendant was “at fault for making the statement and any privilege that may have attached was abused,” and (4) either Theodat suffered damages as a result, “or the statement was of the type that is actionable without proof of economic loss.” Sullivan v. Superintendent, Massachusetts Correctional Institution-Shirley, 101 Mass. App. Ct. 766, 775 (2022), quoting Downey v. Chutehall Const. Co., Ltd., 86 Mass. App. Ct. 660, 663 (2014). “A statement that is claimed to be defamatory must reasonably be understood either as a statement of actual fact, or one that implies defamatory facts.” Id., quoting Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 53 (2020).

“To properly allege defamation, a plaintiff must specifically identify the allegedly false statement.” Kelleher, supra, at 53 n.2 (affirming dismissal). Allegations that a defendant made statements that “cast the plaintiff in a

                                                            -13-

negative light,” but that do not identify any specific statements that were allegedly false and defamatory, are “not sufficient.” Id.

In her written opposition at page 12, Theodat lists specific paragraphs in her amended complaint that allegedly provide the factual basis for her defamation claims against the individual BWSC Defendants.

The Court has carefully reviewed those allegations. Most of them say nothing about any statement that was allegedly published by any of these defendants, and the few exceptions do not identify any specific statements that were allegedly both false and defamatory. Even considered together, they do not set out a viable defamation claim against any of the individual BWSC defendants.

The conclusory assertions at paragraphs 215 to 220 that these defendants made unspecified defamatory statements are insufficient to state a viable claim. In deciding a Rule 12(b)(6) motion to dismiss, the Court must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473  Mass. 336, 339 (2015), quoting

Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676 (2011).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Doe v. American Guar. & Liab. Co.,       91 Mass. App. Ct. 99, 105 (2017), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While ‘detailed factual allegations’ are not required at the pleading stage, mere ‘labels and conclusions’ will not survive a motion to dismiss.” Burbank Apartments Tenant Ass’n v. Kargman, 474 Mass. 107, 116 (2016), quoting

Iannacchino, 451 Mass. at 636.

1.3.2.3. Emotional Distress Claims against Individual BWSC Defendants. The facts alleged by Theodat do not plausibly suggest that any of the individual BWSC Defendants could be liable for intentionally causing her to suffer emotional distress. The Court will therefore allow the motion to dismiss count XII as against these defendants.

To make out her claim for intentional infliction of emotional distress, Theodat must allege facts plausibly suggesting that each of the individual BWSC Defendants either “intended to inflict emotional distress” or recklessly caused such distress by doing or failing to do something when it “knew or should have known that emotional distress was a likely consequence of [their conduct].” Nancy P. v. D’Amato, 401 Mass. 516, 520 (1988).

                                                            -14-

In addition, Theodat must allege facts plausibly suggesting that each of these defendants engaged in misconduct that was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Roman v. Trustees of Tufts College, 461 Mass. 707, 718 (2012), quoting Foley v. Polaroid, 400 Mass. 82, 99 (1987), and Restatement (Second) of Torts § 46, commend d (1965). “What is required is ‘a high order of reckless ruthlessness or deliberate malevolence” resulting in “profoundly shocking conduct.’ ” Okoli v. Okoli,    81 Mass. App. Ct. 381, 389, review denied, 463 Mass. 1111 (2012) (affirming dismissal), quoting Conway v. Smerling, 37 Mass. App. Ct. 1, 8 (1994). Other upsetting behavior—including “insults, indignities, threats, annoyances, [or] oppressions”—cannot give rise to liability for intentional infliction of emotional distress, even if the behavior was undertaken on purpose, with “malice,” and intended to be upsetting. Roman, supra; Foley, supra.

Theodat has not stated a viable claim for intentional infliction of emotional distress because the allegations that the BWSC Defendants mistreated Theodat, subjected her to investigations based on false pretenses, placed her on administrative leave, and terminated her employment do not rise to the level of extreme, outrageous, and profoundly shocking conduct. See Padmanabhan v. City of Cambridge, 99 Mass. App. Ct. 332, 342–343 (2021) (claim that hospital falsely alleged to Board of Registration in Medicine and National Practitioners Data Bank that neurologist engaged in wrongdoing); Okoli, 81 Mass. App. Ct. at 389–390 (allegations that spouse threatened to remove support for plaintiff’s visa application and threatened him with deportation); Kurker v. Hill, 44 Mass. App. Ct. 184, 193–194 (1998) (allegations that defendant forced plaintiff out of family business and terminated his employment).

The Court will dismiss this claim against the individual BWSC Defendants because Theodat’s factual “allegations cannot support a finding that” each defendant’s “conduct was extreme and outrageous as a matter of law.” See Okoli, 81 Mass. App. Ct. at 389–390 (affirming dismissal).

1.3.3. Public Records Claim. In Count XIV, Theodat claims that the Commission has violated the Public Records Act, G.L. c. 66, § 10(c), by not providing her with copies of certain categories of public records that her attorney requested on Theodat’s behalf. The Commission’s arguments that Theodat lacks standing because she was not expressly identified in the records request as the “requestor,” and that Theodat may not assert this claim without alleging that she has paid the amount assessed by the Commission, are without

                                                            -15-

merit. The Court will therefore deny the Commission’s request to dismiss this claim.[3]

1.3.3.1. Standing. Theodat has standing to enforce the request because she the factual allegations in the amended complaint plausibly suggest that Theodat, acting through her agent, was the actual “requestor” within the meaning of the statute. The Commission points out that when Theodat’s attorney made a public records request on her behalf, the attorney did not identify Theodat as the requestor. That may be true, but it is beside the point. Theodat has standing to press this claim nonetheless.

“The primary purpose” of the Public Records Act “is to give the public broad access to governmental records.” Attorney Gen. v. Dist. Atty. for Plymouth Dist., 484 Mass. 260, 262 (2020), quoting Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382–383 (2002). Courts must construe this statute “broadly and liberally … in order to effectuate the legislative purpose of openness.” General Elec. Co. v. Dept. of Envtl. Prot., 429 Mass. 798, 806 n.9 (1999).

When an attorney seeks public records on behalf of an undisclosed client, the client may bring suit to enforce the statute if the public entity does not provide the requested records. ”Allowing an undisclosed principal to enforce a records request made through an agent furthers this purpose” of providing broad access to public records, “without creating any prejudice to the public entity holding the records. Public bodies have a statutory duty to respond diligently to all records requests, regardless of who makes the request.” San Juan Agr. Water Users Ass’n v. KNME-TV, 257 P.3d 884, 892 (N.M. 2011); accord Censabella v. Hillsborough County Attorney, 197 A.3d 74, 76–78 (N.H. 2018); Kleven v. City of Des Moines, 44 P.3d 887, 888–891 (Wash. App. 2002).

The facts alleged in the complaint plausibly suggest that counsel was acting as Theodat’s agent when they requested public records from the Commission.

[3]       In her opposition, Theodat represents that she resubmitted the prior public records request in her own name and paid the $350 fee requested by the BWSC, and states that she seeks leave to further amend her complaint to allege these new facts. But Theodat did not serve and file any motion to amend her complaint, separate from her memorandum, as required under Mass. R. Civ. P. 7(b) and Superior Court Rule 9A(a)(1). If Theodat still wishes to seek leave to submit such a further amendment, she should confer with the remaining parties as required by Superior Court Rule 9C and serve (and then file) an actual motion with her proposed amendment and a short supporting memorandum in accord with Rule 9A.

                                                            -16-

“At common law, an agency relationship exists where ‘there is mutual consent, express or implied, that the agent is to act on behalf and for the benefit of the principal, and subject to the principal's  control.’ ”  Segal  v.  Genitrix,  LLC,  478 Mass. 551, 562 (2017), quoting Theos &  Sons,  Inc.  v.  Mack  Trucks, Inc., 431 Mass. 736, 742 (2000).

“Under the common law of agency, a public records request made by an agent on behalf of an undisclosed principal is therefore the legal equivalent of a public records request made by the principal in the principal’s own name.” San Juan Agr. Water Users Ass’n, supra.

We must presume that the Legislature was not intending the supplant the common law of agency by enacting the Public Records law, as nothing in the statute creates an exception to or bars application of this long-recognized principle. Cf. Suffolk Const. Co., Inc. v. Division of Capital Asset Mgmt, 449 Mass. 444, 454–455 (2007) (public records act did not supplant common law attorney- client privilege). “In interpreting a statute, we presume that when the Legislature enacts a law it is aware of the statutory and common law that governed the matter in which it legislates.” Commonwealth v. J.F., 491 Mass. 824, 836 (2023), quoting Globe Newspaper Co., petitioner, 461 Mass. 113, 117 (2011). Although the Legislature is free to amend the common law, “[w]e will not presume that the Legislature intended ... a radical change in the common law without a clear expression of such intent.” Suffolk Const., supra at 455, quoting Commercial Wharf E. Condominium Ass’n v. Waterfront Parking Corp., 407 Mass. 123, 129 (1990).

The Commission’s reliance on Federal case law, holding that an individual must be specifically named in a Freedom of Information Act request in order to have standing to bring suit under that statute, is misplaced. See, e.g., Mahtesian v. United States Office of Personnel Mgmt., 388 F.Supp.2d 1047, 1048- 1050 (N.D. Cal. 2005) (collecting cases, and holding that standing to sue under FOIA is “an essential and unchanging part of the case or controversy requirement of Article III” of the United States Constitution) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); accord McDonnell v. United States, 4 F.3d 1227, 1238 (3d Cir. 1993).

First, decisions about the subject matter jurisdiction of Federal courts generally have little application to State courts. “Standing in state courts is governed by a different set of constraints and considerations than those limiting and guiding the federal courts.  ” Gammella v. P.F. Chang's China Bistro, Inc., 482 Mass. 1, 19 n.22 (2019), quoting S.L. Kafker & D.A. Russcol, Standing at a Constitutional

                                                            -17-

Divide: Redefining State and Federal Requirements for Initiatives after Hollingsworth v. Perry, 71 Wash. & Lee L. Rev. 229, 251 (2014); see also ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law….”).

Second, this Federal precedent is inconsistent with the principal under Massachusetts law that “the public records law does not distinguish among requesters or permit an inquiry ‘into the requestor’s purpose for seeking a particular record before determining whether to release it.’ ” District Attorney for Plymouth Dist., 484 Mass. at 271, quoting People for the Ethical Treatment of Animals, Inc. v. Dept. of Agric. Resources, 477 Mass. 280, 290 n.12 (2017).

1.3.3.2. Payment of Fee. The Commission’s further argument that Theodat cannot sue for the release of public records without alleging that she has paid the fee that the Commission assessed is also without merit. The Public Records Act requires courts to waive any such charge if they award reasonable attorney’s fees and costs to a plaintiff seeking the production of public records, and gives courts discretion to waive any such charge even if they do not award attorneys’ fees. See G.L. c. 66, § 10A(d)(3). Thus payment of the assessed fee cannot be a required element of a Public Records Act claim. Theodat expressly seeks waiver of the assessed fee. She may therefore press this claim without first paying the fee (though the parties report that Theodat has now done so).

2. Michael F. Flaherty, Jr. Let’s turn to Theodat’s claim against the former General Counsel for the Commission. Attorney Flaherty has moved to dismiss all of the claims against him under Rule 12(b)(6). The Court will dismiss some of the claims against Flaherty, but concludes that others are based on legally sufficient factual allegations.

2.1. G.L. c. 151B—Hostile Work Environment. Theodat includes Flaherty as a defendant under her hostile work environment claim in count I. The Court will deny Flaherty’s request to dismiss this claim.

Flaherty’s assertion that the complaint establishes that this claim is time barred is without merit. For the reasons discussed above in § 1.3.1.1 of this decision, the facts alleged in the amended complaint plausibly suggest that Theodat was subjected to a hostile work environment that constituted a “continuing violation,” such that her claims are timely even though they are based in part on things that happened more than 300 days before she filed an MCAD charge.

                                                            -18-

Flaherty’s further argument that Theodat cannot state a hostile work environment claim without alleging that Flaherty engaged in conduct that had an “explicit gender or racial connection,” or an “explicit connection to Theodat’s protected conduct that could support a retaliation claim,” is without merit. Theodat’s amended complaint includes factual allegations that would support a reasonable inference that Flaherty was motivated at least in part by Theodat’s race, national origin, sex, or complaints about being mistreated when he took action against Theodat in the manner alleged in the complaint.

Claims of unlawful discrimination under c. 151B or cognate federal statutes may be proved, and thus may be alleged, based solely on indirect or circumstantial evidence. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016) (since direct evidence of discriminatory animus rarely exists, plaintiff may prove c. 151B claim using only indirect or circumstantial evidence); see also Robinson v. Town of Marshfield, No. SJC-13825, 2026 WL 134560, at *9 (Mass. May 15, 2026) (circumstantial evidence by way of “temporal proximity” sufficient, standing alone, to support jury finding that employer retaliated against employee because of their protected activity).

This principle applies with full force to hostile work environment claims. “[A] ‘hostile work environment claim need not be supported by direct evidence of explicit racial harassment,’ as ‘[c]ircumstantial evidence may do.’ ” Tassy v. Buttigieg, 51 F.4th 521, 533 (2d Cir. 2022) (applying Title VII of the Federal Civil Rights Act of 1964), quoting Rivera v. Rochester Genesee Reg. Transp. Auth., 743 F.3d 11, 23 (2d Cir. 2014).[4]

Nor is Flaherty entitled to dismissal of this claim on the ground that, as he notes, the amended complaint alleges he “mistreated Theodat for reasons unrelated to race, gender, or her complaints regarding discrimination on those bases.” As discussed above in § 1.3.1.2, Theodat can state a viable hostile work environment claim against Flaherty by alleging that he had mixed motives for harassing her and creating a hostile work environment, and at least one of those reasons was unlawful under G.L. c. 151B. Considered as a whole, the factual allegations in the complaint do just that.

Finally, Flaherty’s assertion that Theodat has not adequately allegedly that he violated c. 151B by aiding and abetting harassment carried out by others is also

[4]       Though not binding on Massachusetts courts, Federal “case law construing the analogous Title VII of the Civil Rights Act of 1964” is often useful guidance in construing and applying c. 151B. See Yee v. Massachusetts State Police, 481 Mass. 290, 298 (2019).

                                                            -19-

unavailing. The facts alleged by Theodat plausibly suggest that Flaherty may be held liable under G.L. c. 151B, § 4(5), for aiding or abetting unlawful discrimination by others because they suggest that Flaherty himself engaged in unlawful harassment, he shared an unlawful discriminatory intent with others, and Flaherty knew that he was participating “in an enterprise designed to deprive” Theodat of rights guaranteed under c. 151B. See generally Lopez v. Commonwealth, 463 Mass. 696, 713 (2012).

2.2. G.L. c. 151B—Being Placed on Leave. The Court will also deny Flaherty’s request to dismiss the claim in count II that he unlawfully discriminated against Theodat by participating in the decision to place her on involuntary leave in December 2024. Flaherty argues that the factual allegations in the complaint “betray an obvious alternative, and legitimate, basis for placing her on leave.” Once again, this argument is unavailing because Theodat may proceed on a mixed motive theory, and has alleged facts plausibly suggesting that Flaherty was motivated at least in part by unlawfully discriminatory reasons. See § 1.3.1.2, above.

2.3. G.L. c. 151B—Termination of Employment. In contrast, the Court will allow Flaherty’s request to dismiss the claim against him in count III, which alleges that the termination of Theodat’s employment with the Commission in April 2025 occurred for unlawfully discriminatory reasons that violate c. 151B.

Theodat alleges that Flaherty had been fired from his position at the Commission three months earlier, in January 2025. She alleges no facts plausibly suggesting that Flaherty had anything to do with the subsequent decision to fire Theodat.

She has therefore failed to state a viable claim that Flaherty can be held liable under c. 151B with respect to the termination of her employment. See Nedder v. UMass Mem. Health Care, Inc., 772 F.Supp.3d 87, 97 (D.Mass. 2025) (Guzman, J.) (dismissing retaliatory termination claim under c. 151B claim because complaint did not allege that defendant “participated in or influenced” the termination decision); Khan v. Sedgwick Claims Mgmt. Services, Inc., 2023 WL 4409519, at *8–*9 (D.Mass. July 7, 2023) (Burroughs, J.) (dismissing c. 151B claims against employer’s CEO, board chair, and managing director because facts alleged in complaint did not suggest that they participated in alleged employment discrimination); Comley v. Media Planning Group, 108 F.Supp.3d 6, 15 (D.Mass. 2015) (Stearns, J.) (dismissing c. 151B claims against employer’s president and chief financial officer because they were not involved in allegedly unlawful termination of plaintiff’s employment).

                                                            -20-

2.4. Defamation. Theodat’s defamation claim against Flaherty in count VI fails for the same reason that the amended complaint fails to plausibly suggest that the BWSC Defendants are liable for defamation. The Court will therefore allow Flaherty’s request to dismiss this claim.

As noted above, “[t]o properly allege defamation, a plaintiff must specifically identify the allegedly false statement.” Kelleher, 98 Mass. App. Ct. at 53 n.2 (affirming dismissal). Allegations that a defendant made statements that “cast the plaintiff in a negative light,” but that do not identify any specific statements that were allegedly false and defamatory, are “not sufficient.” Id.

The amended complaint does not identify a single allegedly false statement made by Flaherty. In her written opposition at pages 13–14, Theodat lists specific paragraphs in her amended complaint that allegedly provide the factual basis for her defamation claim against Flaherty. The Court has carefully reviewed those allegations. None of them identifies any statement by Flaherty that was allegedly false and defamatory.

2.5. Intentional Interference with Advantageous Relations. The Court will deny Flaherty’s request to dismiss the claim in count IX that he intentionally interfered with Theodat’s employment at the Commission.

2.5.1. Workers’ Compensation Exclusivity. Flaherty’s assertion that Theodat tort claim for intentional interference is barred by the exclusivity provision of the Workers’ Compensation Act, G.L. c. 152, § 24, cannot be resolved at this stage of the case. That provision does not apply “[w]here a fellow employee commits an intentional tort not related to the interests of the employer[.]” O’Connell v. Chasdi, 400 Mass. 686, 690 (1987) (assault and battery and intentional infliction of emotional distress arising out of sexual harassment). Theodat has alleged facts plausibly suggesting that Flaherty’s alleged harassment in violation of c. 151B was done intentionally and was not undertaken the further any legitimate interest of the Commission. That is enough to survive the motion to dismiss on this ground.

Anzalone v. Mass. Bay Transp. Auth., 403 Mass. 119 (1988), is not to the contrary. Anzalone held that a supervisor’s alleged intentional interference with the plaintiff’s employment relationship, by means of subjecting the employee to demeaning treatment, arose in the course of employment and therefore was covered exclusively by the Workers’ Compensation Act. Id. at 124–125. But Anzalone did not involve allegations that the supervisor had created a hostile work environment in violation of G.L. c. 151B.

                                                            -21-

If “an employee ‘acts from purely personal motives … in no way connected with the employer’s interests,’ he is not acting within the scope of his employment” and the employer is not vicariously liable for their actions. Timpson v. Transamerica Ins. Co., 41 Mass. App. Ct. 344, 348 (1996) (professional football player’s conduct encouraging others who were sexually harassing female reporter in locker room served purely personal motives, and were thus outside scope of employment), quoting Pinshaw v. Metropolitan Dist. Comm'n, 402 Mass. 687, 694–695 (1988).

Similarly, a supervisor who unlawfully harasses an employee has engaged in misconduct that is “not related to the interests of the employer” and therefore does not implicate the exclusivity provision of the Workers’ Compensation Act. See O’Connell, 400 Mass. at 690. In other words, since Theodat’s interference claim is ground in her allegations that Flaherty harassed and discriminated against her on the basis of her race, sex, and national origin, and retaliated against Theodat for seeking to enforce her rights under c. 151B, the complaint plausibly suggests that Flaherty’s conduct did “not further the business interest of the employer” and that this claim therefore “is not barred by the exclusivity provisions of the act” (emphasis in original). Spagnuolo v. Holzberg, 98 Mass. App. Ct. 661, 666–667 (2020) (sexual and racial harassment).

2.5.2. Factual Basis for Interference Claim. Moving beyond the Workers’ Compensation exclusivity issues, Theodat’s factual allegations plausibly suggest that Flaherty may be liable for intentionally interfering with Theodat’s relationship with the Commission.

The allegations that Flaherty unlawfully discriminated against Theodat based on her race, gender, and national origination and that he retaliated against Theodat for asserting her rights under c. 151B plausibly suggest that Flaherty’s alleged interference with Theodat’s employment was improper in motive and means and that he acted with “actual malice.” See Weber v. Community Teamwork, Inc., 434 Mass. 761, 782 (2001) (unlawful discrimination is unlawful means and supports inference of actual malice); Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 708 (2013) (same as to unlawful retaliation).

2.6. Invasion of Privacy. The Court will allow Flaherty’s request to dismiss the claim against him in count X for invasion of privacy.

By statute, Theodat has an enforceable “right against unreasonable, substantial or serious interference with [her] privacy.” G.L. c. 214, § 1B. Most of the Massachusetts case law “under that statute has involved public disclosure of

                                                            -22-

private facts, but a plaintiff also may support a claim of invasion of privacy by showing that a defendant has intruded unreasonably upon the plaintiff’s ‘solitude’ or ‘seclusion.’ ” Polay v. McMahon, 468 Mass. 379, 382 (2014), quoting Ayash v. Dana–Farber Cancer Inst., 443 Mass. 367, 382 n. 16 (2005) (seclusion), and Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 517 (1991) (solitude). Pursuing a claim for unreasonable intrusion “upon a person’s right to seclusion … does not require proof of dissemination” of any private information. See Amato v. District Attorney for Cape and Islands Dist., 80 Mass. App. Ct. 230, 240 (2011) (allegation that prosecutor and crime lab continued to hold voluntary DNA sample without plaintiff’s consent stated claim for invasion of privacy).

The facts alleged in the amended complaint do not plausibly suggest that Flaherty is liable for invading Theodat’s privacy by publicly disclosing private facts. Though Theodat believes that Flaherty provided the Boston Herald with information about her salary, suspension, termination, that would not constitute an unlawful invasion of privacy even if it were true.

The Privacy Act cannot be used to punish the disclosure of information about a public employee’s fitness to continue serving in a position of public interest. See Mulgrew v. City of Taunton, 410 Mass. 631, 637 (1991) (statements that a police officer was a “sick leave abuser” who resigned under a “cloud of suspicion” did not violate officer’s privacy, given the public interest “in having a police force comprised of competent and able individuals”); Gauthier v. Police Comm’r of Boston, 408 Mass. 335, 339 (1990) (same re disclosure of police cadet’s drug test failure); Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 818–819 (1978) (disclosure of police payroll records).

If the disclosures at issue in Mulgrew, Gauthier, and Hastings & Sons did not constitute an unlawful invasion of privacy as a matter of law, then Flaherty’s alleged disclosures cannot give rise to such a claim either.

Theodat cannot evade the strict limits on privacy claims based on the disclosure of personal information by trying to characterize her claim as based on an unreasonable intrusion into her solitude or seclusion. The sole factual basis set forth for the privacy claim against Flaherty are the allegations that he was involved in the disclosure of information concerning Theodat. The amended complaint does not include any factual allegations that plausibly suggest Flaherty unreasonably interfered with Theodat’s solitude in some other way.

                                                            -23-

2.7. Intentional Infliction of Emotional Distress. The Court will allow Flaherty’s request to dismiss the claim against him for intentional infliction of emotional distress, in count XII, for the reasons discussed above in § 1.3.2.3.

Theodat asserts that Flaherty participated in a deliberate and malicious campaign to use allegedly false and unfair accusations to force Theodat out of her high-level position at the Commission.

The Massachusetts Appeals Court has held that similar allegations do not state a viable claim for intentional infliction of emotional distress because they do not rise to the required level of extreme, outrageous, and profoundly shocking conduct, as a matter of law. See Padmanabhan, 99 Mass. App. Ct. at 342–343 (claim that hospital falsely alleged to Board of Registration in Medicine and National Practitioners Data Bank that neurologist engaged in wrongdoing); Okoli, 81 Mass. App. Ct. at 389–390 (allegations that spouse threatened to remove support for plaintiff’s visa application and threatened him with deportation); Kurker, 44 Mass. App. Ct. at 193–194 (allegations that defendant forced plaintiff out of family business and terminated his employment).

It necessarily follows that Theodat’s allegations do not state a viable claim against Flaherty for intentional infliction of emotional distress.

2.8. Conspiracy. Finally, the Court will deny Flaherty’s request to dismiss the civil conspiracy claim against him in count XIII.

Flaherty argues that if all of the underlying tort claims fail as a matter of law then the conspiracy claim must also be dismissed.

That is true as an abstract rule of law. To state a claim for civil conspiracy on a “concerted action” theory, a plaintiff must allege facts plausibly suggesting “an underlying tortious act in which two or more persons acted in concert and in furtherance of a common design or agreement.” Bartle v. Berry, 80 Mass. App. Ct. 372, 383–384 (2011). And so, if Theodat had not alleged facts plausibly suggesting that any of the defendants committed any “underlying tortious act,” then she would not have asserted a viable claim for civil conspiracy. Id.

But the tort claims against Flaherty, Canty, and Arroyo for intentionally interfering with Theodat’s employment by the Commission remain in the case. Therefore the amended complaint adequately alleges an underlying tort that can serve as the basis for the conspiracy claim against Flaherty.

3. Mayor Wu and Louis Mandarini, III. Theodat has also asserted claims against the Mayor of the City of Boston and one of her aides, even though

                                                            -24-

Theodat concedes that the Commission is not a City Department and is not controlled by the Mayor.

The Court will allow the motion to dismiss the claims against Mayor Wu and her advisor Louis Mandarini. The factual basis for the claims against Wu and Mandarini is adequately set forth in Theodat’s amended complaint; the argument to the contrary by Wu and Mandarini is without merit. But the factual allegations in the complaint do not plausibly suggest that either Wu or Mandarini is liable for committing tortious interference or intentional infliction of emotional distress.

3.1. Adequacy of Pleading. The amended complaint alleges Mandarini urged and Mayor Wu and Mandarini instructed Vitale to terminate Theodat’s employment. It does so in a paragraph that quotes an April 2025 email in which Theodat’s counsel stated that: (i) “it is my understanding” that Mandarini had recently told Vitale that he “either needed to fire Ms. Theodat so as to ‘stop the stories’ or Mr. Vitale himself would be terminated,” and (ii) “[i]t is further my understanding” that Mandarini had placed a second phone call to Vitale asking whether he intended to fire Theodat that day, and that Mandarini then put Mayor Wu on the phone and she “directed Mr. Vitale to follow Mr. Mandarini’s directions to terminate Ms. Theodat.”

Mayor Wu and Mandarini argue that this paragraph of the amended complaint is “insufficient to sustain her claims” because it contains no factual allegations but instead is “nothing more than unsubstantiated and totem pole hearsay.” They assert that Theodat is required to provide “details explaining why her counsel believed that the phone call (sic) even took place,” supported by “relevant actual knowledge or specific facts” including an explanation of how Theodat’s counsel “learned the substance of that alleged conversation.”

Not so.

One may reasonably infer from this paragraph that Theodat is alleging that what was described in her attorney’s email actually happened. In essence this paragraph is stating that it is Theodat’s understanding that what is described in the email took place, even though neither Theodat nor her lawyer were listening in on the alleged phone calls.

Nothing more is required to set forth the factual allegations that form the basis of Theodat’s claims against Mayor Wu and Mandarini. At the motion to dismiss stage, the Court must assume that all of the factual allegations by Theodat are true, and must draw “every reasonable inference in favor of” Theodat from

                                                            -25-

those allegations. Rafferty v. Merck & Co., Inc., 479 Mass. 141, 147 (2018). The Court must also credit allegations made “upon information and belief.” See Polay v. McMahon, 468 Mass. 379, 383 n.5 (2014). Theodat’s allegation that her counsel, and therefore by implication she, “understand” that something is true is no different than making a factual allegation “upon information and belief.”

Where Rule 9(b) does not apply, as in this case, “[a] complaint ‘does not need detailed factual allegations’ to survive a motion to dismiss for failure to state a claim….”  Lipsitt  v.  Plaud,  466 Mass.  240,  252  (2013),  quoting  Iannacchino, 451 Mass. at 636.

Theodat is not required to identify admissible, non-hearsay evidence to support the factual allegations in her complaint. A trial court may not dismiss a complaint with properly pled factual allegations under Rule 12(b)(6), “even if it strikes a savvy judge that actual proof of those [alleged] facts is improbable.” Bazinet v. Beth Israel Lahey Health, Inc., 113 F.4th 9, 15 (1st Cir. 2024), quoting Twombly, 550 U.S. at 556; accord, e.g., Richards v. Arteva Specialties S.A.R.L., 66 Mass. App. Ct. 726, 730 (2006) (“In passing on a rule 12(b)(6) motion, the court is not to consider the unlikelihood of the plaintiff’s ability to produce evidence to support otherwise legally sufficient complaint allegations[.]”) (quoting Brum v. Dartmouth, 44 Mass. App. Ct. 318, 322 (1998)).

Thus, the fact that the allegations against Mayor Wu and Mandarini are set forth by quoting a prior email in which Theodat’s attorney described her “understanding” of the substance of two prior phone calls is not a basis for dismissing the claims against these defendants.[5]

[5]       In her opposition to Mayor Wu’s and Mr. Mandarini’s motion to dismiss, Theodat represents that Vitale told her about his telephone conversations first with Mandarini and then with both Mandarini and Wu. She submitted a sworn affidavit stating the same thing. Theodat also stated that her opposition constituted a “cross-motion” seeking leave to amend her complaint “to clarify that she personally witnesses the facts set forth at Paragraph 142.” This statement is a bit confusing, because Theodat’s affidavit makes clear that she did not personally observe or listen in on either of the alleged phone calls. In any case, the Court understands that this cross-motion is moot given the Court’s ruling that para. 142 in its current form adequately states the factual basis for the claims against Mayor Wu and Mandarini.

Several days ago the BWSC Defendants filed an “emergency” motion in which they seek to challenge the authenticity of an exhibit that Theodat attached to her affidavit that accompanies Theodat’s cross-motion regarding para. 142, ask

                                                            -26-

3.2. Intentional Interference with Advantageous Relations. Turning to the merits, the Court will allow the motion to dismiss the claim in count VII against Mayor Wu and Mandarini for intentional interference with advantageous relations, which is based on their alleged interference with Theodat’s employment by the Commission.

3.2.1. Elements. “The tort of intentional interference with advantageous relations protects a plaintiff's present and future economic interests from wrongful interference.” Blackstone v. Cashman, 448 Mass. 255, 259 (2007).

To state a viable claim under this theory, Theodat must allege facts plausibly suggesting that (i) Theodat had an advantageous relationship with the Commission, (ii) Wu and Mandarini “knowingly induced a breaking of the relationship,” (iii) the interference, “in addition to being intentional, was improper in motive or means,” and (iv) Theodat suffered harm as a result. Columbia Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 588 (2024), quoting Blackstone, supra, at 260.

In addition, in a case like this where “the defendant is a corporate official acting in the scope of [their] corporate responsibilities, a plaintiff has a heightened burden of showing the improper motive or means constituted ‘actual malice,’ that is, a spiteful, malignant purpose, unrelated to the legitimate corporate interest”  (quotation  and  citation  omitted).  Weiler  v.  PortfolioScope,  Inc.,  469 Mass. 75, 84 (2014), quoting Psy-Ed Corp. v. Klein, 459 Mass. 697, 716 (2011), quoting in turn Blackstone v. Cashman, 448 Mass. 255, 260–261 (2007). This requirement ensures that corporate officials’ “freedom of action toward corporate purposes” is not “curtailed by fear of personal liability.” Blackstone, supra at 261, quoting Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663–664 (1981).

the Court to defer ruling on their motion to dismiss until the authenticity challenge is resolved, and establish an expedited discovery and evidentiary hearing process to resolve the issue. The Court will deny this new motion because it can decide the BWSC Defendants’ motion to dismiss without having to consider the disputed exhibit. The BWSC Defendants are free to conduct the discovery sought in this motion without needing to seek special leave of court. Nor is there any need for the Court to issue a special preservation of evidence order. Theodat already has a duty to preserve relevant electronic evidence, and could be subject to spoliation sanctions if she fails to do so, because Theodat is involved in litigation against the BWSC Defendants and those defendants have given her actual knowledge of the electronic evidence that they contend she needs to preserve. See Keene v. Brigham and Women’s Hosp., Inc., 439 Mass. 223, 234 (2003); Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549 (2002).

                                                            -27-

Since Mayor Wu and Mandarini were acting within the scope of their official responsibilities as City of Boston officials when they allegedly told Vitale to fire Theodat, the actual malice standard applies to the claim that they intentionally interfered with Theodat’s employment relationship, even though Wu and Mandarini had no power to fire Theodat. Despite the case law’s reference to “corporate officials,” the actual malice requirement applies with full force to claims of alleged interference with the continuing employment of a public employee. See Bresler v. Muster, 496 Mass. 111, 111–112 (2025) (interference claim by staff attorney working for the Massachusetts Appeals Court). And, contrary to Theodat’s assertion during oral argument, power to terminate an advantageous relationship is not a prerequisite to applying the actual malice standard. Compare Columbia Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 588 (2024) (actual malice standard applied to claim that university interfered with relationship between developer and Boston Planning and Development Administration, because university “acted in its own corporate self-interest” in seeking to develop certain real estate without including plaintiff in the project); Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 608 (2007) (actual malice standard applied to claim that wallpaper manufacturer interfered with reseller’s customer relationships).

To state a claim for intentional interference against an official of a business or public entity based on things they allegedly did in their official capacity, a plaintiff must allege facts plausibly suggesting that the official “was personally hostile or harbored ill will toward the plaintiff.” Sklar v. Beth Israel Deaconess Med. Ctr., 59 Mass. App. Ct. 550, 554 (2003); accord Weber v. Community Teamwork, Inc., 434 Mass. 761, 783 (2001) (“behavior must rise to the level of personal hostility or ill-will to satisfy the actual malice standard”).

“[T]he ‘actual malice’ standard for proving improper motive or means on the part of a corporate official is a heightened burden placed on the plaintiff, not a defense that must be proved by a defendant.” Blackstone, 448 Mass. at 261 n.10. As a result, if a plaintiff does not make factual allegations that plausibly suggest that a corporate official was acting with the personal hostility required to show actual malice that was “unrelated to any corporate interest,” the complaint fails to state a viable claim against them for tortious interference and any such claim should be dismissed. See Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 55– 56 (2020) (affirming dismissal), quoting Alba v. Sampson, 44 Mass. App. Ct. 311, 316 (1998).

                                                            -28-

3.2.2. Analysis. The tortious interference claim against Mayor Wu and Mandarini fails because the facts alleged do not plausibly suggest that Wu and Mandarini had an improper motive or used improper means to seek the termination of Theodat’s employment, or that Wu and Mandarini acted with actual malice. Indeed, Theodat does not contest these points.

Theodat’s factual allegations do not plausibly suggest that Wu or Mandarini acted out of an improper motive. To the contrary, the complaint makes clear that they were allegedly seeking to protect the City from political fallout due to the series of negative stories that the Boston Herald was running about Theodat. By analogy, “advancing one’s own economic interest, by itself, is not an improper motive” for the purpose of a tortious interference claim. See Skyhook Wireless, Inc. v. Google Inc., 86 Mass. App. Ct. 611, 621 (2014); accord, e.g., Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App. Ct. 34, 39 (2004). Similarly, advancing the reputational and political interests of the City is not an improper motive either.

Nor does the amended complaint suggest that Wu or Mandarini used improper means to interfere with Theodat’s employment “[I]mproper means” requires factual allegations that a defendant engaged in “improper conduct beyond the fact of the interference itself.” Bartle v. Berry, 80 Mass. App. Ct. 372, 380 (2011); accord United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815–816 (1990). Theodat makes no such allegations.

In any case, Theodat’s factual allegations do not plausibly suggest that Wu or Mandarini acted out of actual malice, based on personal hostility or ill-will toward Theodat rather than a desire to protect the City’s interests. The intentional interference claim against Wu and Mandarini must be dismissed for this reason alone. See Kelleher, 98 Mass. App. Ct. 55–56.

3.3. Intentional Infliction of Emotional Distress. The Court will also allow the motion to dismiss the claims in count XII against Mayor Wu and Mandarini for intentional infliction of emotional distress.

The allegations that Wu and Mandarini caused the Commission to terminate Theodat’s employment do not state a viable claim for intentional infliction of emotional distress because they do not rise to the required level of extreme, outrageous, and profoundly shocking conduct, as a matter of law. See Padmanabhan, 99 Mass. App. Ct. at 342–343 (claim that hospital falsely alleged to Board of Registration in Medicine and National Practitioners Data Bank that neurologist engaged in wrongdoing); Okoli, 81 Mass. App. Ct. at 389–390

                                                            -29-

(allegations that spouse threatened to remove support for plaintiff’s visa application and threatened him with deportation); Kurker, 44 Mass. App. Ct. at 193–194 (allegations that defendant forced plaintiff out of family business and terminated his employment).

4. Ricardo Arroyo—Anti-SLAPP Motion. Let’s now turn to Theodat’s claims against Ricardo Arroyo. Theodat claims that Attorney Arroyo is liable for engaging in defamation, intentional interference with Theodat’s employment relationship with the Commission, invasion of privacy, and civil conspiracy. The Court will deny Arroyo’s motion to dismiss these claims.

Arroyo has moved to dismiss Theodat’s claims against him under the “anti- SLAPP” statute, which applies to and may bar civil claims that are based on a party’s “exercise of its right of petition under the constitution of the United States or of the commonwealth.” See G.L. c. 231, § 59H. “The acronym ‘SLAPP’ stands for strategic lawsuit against public participation.” The Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 134 n.2 (2017). Arroyo has not moved to dismiss any of Theodat’s claims under Rule 12(b)(6).[6]

To obtain the protections provided in § 59H, Arroyo has the burden of making a threshold showing that the claims against him are “based solely on … ‘petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.’ ” 477 Harrison Ave., LLC v. Jace Boston, LLC, 477 Mass. 162, 168 (2017), quoting Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141, 147 (2017).

The Court will deny this anti-SLAPP motion because Arroyo has not shown that the claims against him are based solely on petitioning activity aimed at influencing government officials. See Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394, 395-396, rev. denied, 456 Mass. 1106 (2010) (affirming denial of § 59H motion on this ground), quoting Wenger v. Aceto, 451 Mass. 1, 5 (2008).

Theodat’s claims against Arroyo are based primarily on allegations made against Theodat in a civil lawsuit that Arroyo filed on behalf of Theodat’s grand-uncle. Theodat alleges in her amended complaint that the lawsuit filed

[6]       Though Arroyo also asserts that that Theodat’s claims against him are barred  by the absolute litigation privilege, the Court will not address that issue because Arroyo did not move to dismiss under Rule 12(b)(6) and did not provide any developed argument explaining why that privilege applies here. Evidently Arroyo served but chose not to file a Rule 12(b)(6) motion.

                                                            -30-

by Arroyo’s client is “frivolous,” and that Arroyo included “demonstrably false and fabricated assertions” in the pleading that he filed in that case.

If Theodat’s claims against Arroyo were based entirely on Arroyo’s conduct in filing a civil action against Theodat, and not on any other factual allegations, then Arroyo would be entitled to dismissal of those claims under § 59H. Bringing a lawsuit “is quintessential petitioning activity” that is protected by § 59H. 477 Harrison Ave. LLC v. JACE Bos., LLC, 483 Mass. 514, 520 (2019).

However, Theodat also alleges (in ¶ 131) that Arroyo made defamatory statements in an April 5, 2025, Boston Herald article about a “deed fraud” warning issued by the FBI. Arroyo was quoted in the article as saying “we do believe that the facts of this case,” meaning the case he filed on behalf of Theodat’s grand-uncle, “fit squarely into what is described in that release by the FBI.”[7] Theodat also alleges that Arroyo kept in close communication with Flaherty, including (as alleged in ¶ 99) by alerting Flaherty to a verdict against Theodat in a separate civil action.[8]

Thus, Theodat’s claims against Arroyo for defamation and intentional interference are also based, in part, on her allegation that Arroyo defamed Theodat by making false statements directly to the Boston Herald and that doing so constituted intentional interference with her employment and an invasion of privacy, and was part of a civil conspiracy with Flaherty, Canty, and the Herald Defendants.

Those allegedly defamatory statements to the Boston Herald are not protected under § 59H as petitioning activity, even if Arroyo made them “in hopes of … gaining a tactical advantage in an ongoing legal proceeding.” See The Cadle Co. v. Schlichtmann, 448 Mass. 242, 254 (2007). The Supreme Judicial Court has held that statements by lawyer accusing company of fraud made to the Boston

[7]       Since Arroyo has not moved to dismiss under Rule 12(b)(6), the issue  of whether these allegations state a viable claim for defamation is not before the Court at this time.

[8]       In several paragraphs of her amended complaint, Theodat makes the  conclusory assertion that certain information published by the Boston Herald was provided “by Flaherty, Canty, and/or Arroyo.” Those paragraphs do not support viable claims against Arroyo because they lump multiple defendants together without stating clearly which of them engaged in the alleged conduct. See Atuahene, 10 Fed. Appx. at 34; Canales, 979 F. Supp. 2d at 170; Volumetric Holdings, 2024 WL 4134321, at *3; Schlumberger Technology, 2024 WL 2091831, at *2, 2024 Mass. Super. LEXIS 40, at *5.

                                                            -31-

Herald and other media outlets, and republished on lawyer’s web site asking potential clients to contact him, are not petitioning activity covered by § 59H. Id. at 244–245 & 250–254. As the SJC explained, “aggressive lawyering of this sort is not protected petitioning activity.” Id. at 254. Similarly, Arroyo’s allegedly defamatory statements to the Boston Herald are not protected petitioning activity either.

The anti-SLAPP statute defines “a party’s exercise of its right of petition.” That definition makes clear that “the statute is designed to protect overtures to the government by parties petitioning in their status as citizens. … The right of petition contemplated by the Legislature is thus one in which a party seeks some redress from the government.” Fustolo v. Hollander, 455 Mass. 861, 866 (2010), quoting Kobrin v. Gastfriend, 443 Mass. 327, 332-333 (2005). For the purposes of § 59H, “[p]etitioning includes all ‘statements made to influence, inform, or at the very least, reach governmental bodies—either directly or indirectly.’ ” North American  Expositions  Co.  Ltd.  Partnership  v.  Corcoran,  452 Mass. 852, 862 (2009), quoting Global NAPS, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 605 (2005).

In contrast, speech and other communicative activities that are not made to influence, inform, or reach public officials are not protected by the anti-SLAPP statute. See The Cadle Co., 448 Mass. at 250–252; Burley v. Comets Community Youth Center, Inc., 75 Mass. App. Ct. 818, 822–824 (2009) (public disclosures of communications to police saying that plaintiff had been banned from rink not covered by § 59H). Unlike legislatures in some other states that have enacted similar laws, “[t]he Massachusetts Legislature did not include ‘free speech’ in § 59H” but instead limited the statute’s reach to the exercise of one’s narrower constitutional rights to petition government. Fustolo, 455 Mass. at 871 n.12; accord Kobrin, 443 Mass. at 333. The Court may not “not read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.” City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784, 789 (2019), quoting General Elec. Co. v. Department of Envtl. Prot., 429 Mass. 798, 803 (1999).

The SJC had previously construed § 59H as providing that “a special movant can meet its threshold burden with respect to the portion” of any claim that is based on petitioning activity, and seek and obtain dismissal of that part of the claim, even if the claim as a whole is not based solely on petitioning activity. Blanchard, 477 Mass. at 155. The decision in Blanchard held that a defendant may seek dismissal under § 59H of any “portion of a … claim that is based on

                                                            -32-

petitioning activity, so long as that petitioning activity could have independently served as the sole basis for the claim.” Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., 493 Mass. 539, 551 (2024).

More recently, however, the SJC “overrule[d] the additional requirement … that the motion judge parse the factual allegations underlying each claim to determine whether a portion of the opponent’s cause of action could be construed as being based on the proponent’s petitioning alone.” Id. at 554. “Mixed claims, that is, those based on a proponent’s petitioning along with substantial conduct other than or in addition to the petitioning activities,” may no longer be challenged under § 54. Bristol Asphalt, supra.

In other words, an anti-SLAPP motion may no longer be used to seek “partial dismissal” of a claim. Columbia Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 577 (2024). “Rather, if the special motion proponent cannot demonstrate that the claim is based solely on the proponent’s own petitioning activity, the special motion must be denied.” Id.

Under Bristol Asphalt and Columbia Plaza, Arroyo is not entitled to seek and the Court may not grant dismissal under the anti-SLAPP statute as to the portions of Theodat’s claims that are based on Arroyo’s filing of a civil complaint against Theodat. Since none of the claims against Arroyo is based solely on petitioning activity, the Court must deny his anti-SLAPP motion to dismiss.

5. The Boston Herald. Theodat has also asserted various claims against the entity that owns and operates the Boston Herald newspaper and website (MNG-BH Acquisition LLC), its parent corporation (MediaNews Group, Inc.), its Executive Editor (Joe Dwinell), and one of its reporters (Gayla Cawley).

Theodat refers to these four parties as the “Herald Defendants,” and has sued them collectively for defamation, intentional interference with her employment by the Commission, invasion of privacy, intentional infliction of emotional distress, and civil conspiracy.

The Court will refer to the publication itself (in its various forms) as the Boston Herald. It will refer to MNG-BH Acquisition LLC, Dwinell, and Cawley as the “Herald Parties.” The Court will consider Theodat’s claims against the parent corporation (MediaNews Group) separately.

5.1. Parent Company. The Court will allow the motion to dismiss the claims against MediaNews Group because the factual allegations in Theodat’s

                                                            -33-

complaint do not plausibly suggest that MediaNews has any responsibility for articles or editorials published by the Boston Herald.[9]

5.1.1. Allegations in Amended Complaint. The only allegation in the complaint that is specific to MediaNews is that it purchased the Boston Herald assets out of bankruptcy “through its wholly owned subsidiary MNG-BH Acquisition LLC.” In other words, Theodat is suing MediaNews solely on the basis that it is the parent of the entity that owns the Boston Herald.

That is not enough to state any claim against MediaNews. The mere fact that MNG-BH is a wholly-owned subsidiary of MediaNews does not plausibly suggest that MediaNews is liable to Theodat under any of her claims.

The Court will dismiss the claims against MediaNews because the factual allegations in the complaint do not plausibly suggest that MediaNews committed any wrongdoing on its own, or that it can be held liable for its subsidiary’s alleged misconduct. See Manufacturing Improvement Corp. v. Georgia Pacific Corp., 362 Mass. 398, 400–401 (1972) (affirming dismissal because complaint did not identify any basis for holding corporate parent liable for subsidiary’s alleged breach of contract).

One of the “bedrock principles of corporate common law” is that separate corporations or limited liability companies are “separate and distinct entities” even if there are “relationships between or among them.” Lemos v. Electrolux North America, Inc., 78 Mass. App. Ct. 376, 381 (2010), rev. denied, 459 Mass. 1103 (2011), quoting Scott v. NG US 1, Inc., 450 Mass. 766, 766 (2008).

Theodat may not assert claims against MediaNews based only her allegations that it is the parent of a wholly-owned subsidiary that allegedly defamed Theodat and committed other torts against her. “It is a general principle of corporate law ‘deeply “ingrained in our economic and legal systems” that a parent corporation ... is not liable for the acts of its subsidiaries.’ ” Kraft Power Corp. v. Merrill, 464 Mass. 145, 148 (2013), quoting United States v. Bestfoods, 524 U.S. 51, 61 (1998), quoting in turn Douglas & Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L.J. 193, 193 (1929).

Theodat cannot evade these fundamental principles of corporate law by making undifferentiated allegations against the four parties that she calls the

[9]       Even if Theodat had alleged or could allege facts plausibly suggesting a basis for holding MediaNews liable for the Boston Herald’s alleged wrongdoing, MediaNews would still be entitled to dismissal of all claims against it for the reasons discussed below in § 5.3 of this decision.

                                                            -34-

Herald Defendants, without providing any factual allegations suggesting that MediaNews can be held liable for alleged misconduct by the entity the publishes the Boston Herald, its Executive Editor, and one of its reporters. As discussed above in § 1.3.1.2 of this decision, Theodat cannot simply “lump” a group of defendants together without stating “clearly which defendant or defendants committed each of the alleged wrongful acts.’ ” Canales, 979 F. Supp. 2d at 170, quoting Bagheri, 160 Fed.Appx. at 5’ accord Atuahene, 10 Fed. Appx. at 34; Volumetric Holdings, 2024 WL 4134321, at *3; Schlumberger Technology, 2024 WL 2091831, at *2, 2024 Mass. Super. LEXIS 40, at *5.

5.1.2. Futility of Proposed Amendment. During oral argument, Theodat said she could further amend her complaint to allege that MediaNews and MNG- BH have a common corporate director and share a business address, in an effort to state a claim to “pierce the corporate veil” and hold MediaNews liable for alleged wrongdoing by MNG-BH. The Court concludes that such an amendment would be futile.

“[C]orporations are generally to be regarded as separate from each other and from their respective stockholders where there is no occasion ‘to look beyond the corporate form for the purpose of defeating fraud or wrong, or for the remedying of injuries.’ ” My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 618 (1968).

Under some circumstances, however, a plaintiff may seek to “pierce” the corporate veil and hold the company’s owners personally liable for alleged debts or wrongdoing by the corporate entity. “[D]isregard of the separate corporate entity is reserved for ‘rare particular situations to prevent gross inequity.’ ” OMV Assocs., L.P. v. Clearway Acquisition, Inc., 82 Mass. App. Ct. 561, 570 (2012), quoting Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass. App. Ct. 73, 79 (1994), quoting in turn My Bread Baking, 353 Mass. at 620.

The Supreme Judicial Court has recognized “two separate and distinct” situations in which it  may  be  appropriate  to  pierce  the  corporate  veil:  “(1) pervasive control … of the subsidiary coupled with fraudulent or injurious consequence of the relationship; and (2) confused intermingling of corporate activity disregarding formal corporate separation.” Commonwealth v. Springfield Terminal Railway Co., 80 Mass. App. Ct. 22, 37, rev. denied, 460 Mass. 1114 (2011), citing Scott, 450 Mass. at 767.

Theodat seeks to invoke only the “pervasive control” theory, as allegations that MediaNews and MNG-BH share a director and a business address would not

                                                            -35-

implicate the “confused intermingling” theory. A plaintiff seeking to pierce the corporate veil on a “confused intermingling” theory must show that (I) they were confused by a substantial disregard of the separate nature of different entities, (ii) the confused intermingling caused the plaintiff to suffer injury, and (iii) “it would be grossly unfair or unjust to respect the corporate boundaries.” OMV Assocs., 82 Mass. App. Ct. at 570. Theodat does not suggest that she was injured by any allegedly confused intermingling of MediaNews and MNG-BH.

There is no point in Theodat seeking leave to invoke the “pervasive control” theory by furthering amend her complaint to allege that MediaNews and MNG-BH share a director and a business address because her proposed amendment would be futile. “Courts are not required to grant motions to amend prior complaints where ‘the proposed amendment ... is futile.’ ” Johnston v. Box, 453 Mass. 569, 583 (2009), quoting All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1993)).

“The corporate veil ‘may be pierced where’ the corporate principal exercises (1) ‘some form of pervasive control’ over the activities of the corporation, and (2) ‘there is some fraudulent or injurious consequence’ as a result.” Kraft Power, supra, quoting My Bread Baking, 353 Mass. at 619. To state a claim under this theory, a complaint must allege facts suggesting that both parts of this standard are true.

“[C]ontrol, even pervasive control, without more, is not a sufficient basis for a court to ignore corporate formalities.” Scott v. NG U.S. 1, Inc., 450 Mass. 760, 768 (2008). “[T]he injured party must [also] show some connection between its injury and the parent’s improper manner of doing business—without that connection, even when the parent exercises domination and control over the subsidiary, corporate separateness will be recognized.” Id. at 767, quoting       1 W.M. Fletcher, Cyclopedia of Corporations, § 43, at 292 (rev. ed. 2006).

Theodat’s proposed amendment would be futile because the additional factual would not plausibly suggest either that MediaNews exercised pervasive control over MNG-BH or that Theodat was injured as a result. See Birbara v. Locke, 99 F.3d 1233, 1240 (1st Cir. 1996) (mere overlapping of board membership not grounds to pierce corporate veil under Massachusetts law). “[C]ommon ownership of the stock of two or more corporations together with common management, standing alone, will not give rise to liability on the part of one corporation for the acts of another corporation or its employees.” My Bread Baking, 353 Mass. at 619; accord Middlesex Retirement System, LLC v. Board of Assessors of Billerica, 453 Mass. 495, 503 (2009). Even if MediaNews controlled

                                                            -36-

MNG-BH, which Theodat does not say she can allege, that would not state a viable claim to pierce the corporate veil in the absence of factual allegations plausibly suggesting that MediaNews used its relationship with MNG-BH    to defraud or unfairly injure Theodat in some way. See OMV Assocs., 82 Mass. App. Ct. 565–567 (affirming judgment notwithstanding the verdict in favor of corporate parent).

5.2. Fair Report Privilege. Theodat’s claims against the three Herald Parties (MNG-BH Acquisition, Dwinell, and Cawley) are based on a series of 20 articles about Theodat, and one editorial that references Theodat, that the Boston Herald published between September 2024 and November 2025.

The Herald Parties contend that all claims against them are barred by what has come to be known as the “fair report privilege.” The Court agrees as to many of these publications, but not as to all parts of all of them.[10]

5.2.1. Legal Background. Journalists who report on official statements or actions by government officials or entities are protected by the fair report privilege, which provides them with immunity from liability “so long as the report … is fair and accurate.” Wolsfelt v. Gloucester Times, 98 Mass. App. Ct. 321, 330 (2020), quoting Howell v. Enterprise Publ. Co., 455 Mass. 641, 651 (2010).

“The fair reporting privilege derives from the recognition that the general public has the right to know of official government actions [or statements] that affect the public interest, that news outlets are the best way to disseminate such information, and that news outlets would be willing to make such reports only if they were free from liability.” Reilly v. Associated Press, 59 Mass. App. Ct. 764, 776 (2003). In other words, “[o]ur common law considers fair and accurate reports of official actions [or statements] to be privileged because we value the light the press shines on those charged with stewarding the public trust.” Howell, supra, at 669.

The fair report privilege furthers important public policies. First, it permits the news media to serve “as the public’s eyes and ears” by reporting on “official actions and statements that members of the public could have witnessed for themselves.” Howell, 455 Mass. at 653. The SJC has referred to this as the “agency rationale” for the privilege. Id. Second, and more broadly, the privilege also allows the news media “ ‘to serve as a check on the power of government

[10]     Even if none of the challenged articles was protected by the fair report privilege, the Herald Parties would still be entitled to dismissal of all claims against them for the reasons discussed below in § 5.3 of this decision.

                                                            -37-

by giving the public the opportunity to be informed citizens and voters,’ ” including by “reporting on events outside the public eye or ear.” Id., quoting in part ELM Med. Lab., Inc. v. RKO Gen. Inc., 403 Mass. 779, 789 (1989) (“to serve as a check…”). The SJC refers to this as the “public supervision” rationale. Id.

“Given these policy rationales,” the SJC has stressed that “it is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation.” Howell, 455 Mass. at 653.

This privilege serves “as a safety valve to the common-law rule that a republisher of a defamatory statement was subject to the same liability as the original defamer.” Howell, 455 Mass. at 650–651. But the fair report privilege is not limited to defamation claims.

Where the privilege applies, it protects the publisher against any tort liability— and not just liability for defamation—seeking compensation for harm allegedly caused by false statements. Butcher v. Univ. of Mass., 483 Mass. 742, 758 (2019); Howell, supra, at 672–673. “A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.” Correllas v. Viveiros, 410 Mass. 314, 324 (1991). For that reason, “a plaintiff cannot evade the protections of the fair report privilege merely by re-labeling his claim.” Butcher, supra, quoting Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003); accord Howell at 672.

This is implicated only where journalists are reporting on “official statements” or “official actions.” See Butcher, 483 Mass. at 751 (privilege attaches to reports about contents of police blotters—which are police department records of crimes report, police responses to valid complaints, and arrests—only to extent that “they are reports of either official statements or official actions”); Howell, 455 Mass. at 654 (privilege attaches to report as to nonpublic actions by local sewer commission only to extent that newspaper “reported on ‘official’ actions or statements within the scope of the privilege”).

Once the privilege attaches, however, the privilege applies not only to the portion of the report that concerns an official statement or action, but also extends to any “underlying allegations” that “gave rise to” the official statement or action. Butcher, supra, at 754. “Without this context, it would be impossible for the public to assess the appropriateness of the government's response, and the public supervision rationale would be thwarted.” Id.

Reports of official statements covered by the privilege “typically are either ‘on- the-record statements by high-ranking (authorized to speak) officials,’ or

                                                            -38-

‘published official documents.’ ” Butcher, 483 Mass. at 750, quoting Howell, 455 Mass. at 658.

Reports of official actions covered by the privilege generally concern “the ‘administration of public duties,’ or ‘the exercise of the power of government to cause events to occur or to impact the status or rights or resources.’ ” Butcher, supra, quoting Howell, 455 Mass. at 654. “Unlike official statements, ‘if the unattributed statement reflects official action, the source of the statement is unimportant.’ ” Butcher, supra, quoting Howell, supra, at 659 n.16.

In deciding whether the privilege applies based on reporting about an official action, a court “must focus upon whether the reported material reflects the subject of a judicial [or other official] proceeding as well as whether it is fair and accurate.” Sibley v. Holyoke Transcript-Telegram Pub. Co., 391 Mass. 468, 471 (1984). For example, “the act of filing a paper with the court, without more,” could not trigger the privilege. Id.; accord Howell, supra, at 655 n.11. Instead, “[t]he privilege extends only ‘to matters which really have been made the subject of judicial [or other official] action.’ ” Id., quoting Lundin v. Post Publishing Co., 217 Mass. 213, 216 (1914). But final government action is not required. “[T]his privilege extends to all matters which have been made the subject of judicial [or other official] proceedings, though such proceedings may be merely preliminary or interlocutory, or even ex parte.” Lundin, supra, at 215. “In sum, the contemporary fair report privilege is a ‘safe harbor for those who report on statements and actions so long as the statements or actions are official and so long as the report about them is fair and accurate’ ” (emphasis in original). Butcher, 483 Mass. at 750, quoting Howell, 455 Mass. at 651.

To establish that a report was “fair and accurate,” a publisher “must show only the ‘factual correctness of the events reported,’ and not ‘the truth about the events that actually transpired.’ ” Butcher, 483 Mass. at 757, quoting Yohe, 321 F.3d at 44. “A report is accurate if it ‘conveys to the persons who read it a substantially correct account of the proceedings.’ ” Id. at 756, quoting Howell, 455 Mass. at 661, quoting in turn Restatement (Second) of Torts § 611 comment f (1977). “It is fair so long as it is not ‘edited and deleted as to misrepresent the proceeding and thus be misleading.’ ” Butcher, supra, quoting Howell, supra,   at 661-662 quoting in turn Restatement comment f, supra.

“The fairness and accuracy of a report is a matter of law to be determined by a court ‘unless there is a basis for divergent views.’ ” Butcher, supra, at 757, quoting Howell, supra, at 661.

                                                            -39-

5.2.2. Fair Report Privilege Analysis. The Court will separately analyze each of the 21 publications at issue here to determine whether they are, or are not, protected by the fair report privilege.

The September 3, 2024, article (amended complaint ex. 3) is not privileged. This article reports on the complaint filed in a civil action brought by Rodolphe St. Cloud against Theodat (the “St. Cloud Lawsuit”). But it does not report on any official action or statement. It is  therefore  not  privileged.  See Howell, 455 Mass. at 655 n.11; Sibley, 391 Mass. at 471.

“[T]he right to report proceedings in the courts does not extend to reporting accusations contained in papers filed by a party and not yet brought before a judge or magistrate for official action.” Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158 (1945).

Nor does the privilege attach to an article about a lawsuit that says nothing about any official action, merely because (as the Herald Parties contend here) a judge or court clerk took some official action, no matter how minor, in connection with the lawsuit before the article was published. The privilege only protects reports about official actions or statements. See Butcher, 483 Mass.    at 751; Howell, 455 Mass. at 654. It therefore does not protect newspaper articles that relate or summarize allegations made in a civil complaint but do not say anything about any related official action or official statement.

The October 4, 2024, article (ex. 4) is privileged. It reports that a lawsuit against Theodat to enforce a promissory note (the “Note Lawsuit”) was scheduled for trial. The scheduling of a civil action for trial is an official governmental action. The article fairly and accurately reports on the allegations made in the complaint filed by the plaintiff in the Note Lawsuit and also briefly mentions that Theodat had also been sued in the St. Cloud Lawsuit. This constitutes privileged reporting on the underlying allegations that gave rise to the scheduling of the Note Lawsuit for trial. See Butcher, 483 Mass. at 754.

The October 7, 2024, article (ex. 5) is not privileged. It reports on statements made by public sector labor unions that represent BWSC employees in a letter that they sent to Vitale, the Commission’s executive director. The unions’ statements to the Commission do not constitute “official statements” within the meaning of the fair report privilege because the unions are not “high-ranking (authorized to speak) officials” and their letter was not a “published official document.” Compare Butcher, 483 Mass. at 750, quoting  Howell, 455 Mass.    at 658.

                                                            -40-

Labor unions, even those that represent public sector employees, are private organizations. See, e.g., Hovan v. United Broth. of Carpenters and Joiners of America, 704 F.2d 641, 642 (1st Cir. 1983); Landino v. Mass. Teachers Ass’n, 2021 WL 2186815, at *5 (D.Mass. May 28, 2021) (Casper, J.).

Since labor unions that represent public employees are private entities, things that they do or say do not constitute state or government action. See, e.g., Alston v. International Ass’n of Firefighters, Local 950, 998 F.3d 11, 32–33 (1st Cir. 2021); Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 817–818 (7th Cir. 2009); Todd v. American Fed’n of State, County, and Municipal Employees, Council 5, 125 F.4th 1214, 1217 (8th Cir. 2025).

They therefore do not constitute official action or official statements for the purposes of the fair report privilege.

In contrast, the October 8, 2024, article (ex. 6) is privileged. It fairly and accurately reports on official statements made by the Commission in response to the unions’ letter about Theodat. As context, the article also provides summaries of the unions’ letter and the nature of the Note Lawsuit and the St. Cloud Lawsuit, which are also fair and accurate.

The November 14, 2024, article (ex. 7) is generally privileged. It reports and focuses on the decision by a Superior Court judge to deny Theodat’s motion to continue trial of the Note Lawsuit. That is an official action, so that the fair report privilege is implicated. The article fairly and accurately summarizes the trial judge’s ruling and the trial schedule. It also permissibly provides context for that report by providing explaining that Theodat was being represented by new counsel in the Note Lawsuit. See Butcher, 483 Mass. at 754.

However, the brief discussion in this article of allegations against Theodat in the St. Cloud Lawsuit is not privileged, as it is not a report about an official statement or action and provides no background context for the judge’s ruling in the Note Lawsuit.

The November 20, 2024, article (ex. 8) is generally privileged. This article reports on jury selection in the Note Lawsuit, which is official action. And the discussion of the proceedings in that lawsuit was fair and accurate.

Once again, however, the paragraph in this article regarding the St. Cloud Lawsuit is not privileged, because it is not a report about any official statement or action and is not relevant context for the reporting about the Note Lawsuit.

                                                            -41-

The November 25, 2024, article (ex. 9) is privileged. The focus of this article is on increases to Theodat’s salary as a BWSC for each year from 2019 to 2024. The Commission’s decisions to increase Theodat’s pay, through cost-of-living raises or otherwise, is official action such that reporting about it implicates the fair report privilege. Theodat alleges no facts plausibly suggesting that the portion of the article reporting on her pay was not fair and accurate.

Theodat contends that the fair report privilege does not apply to the Commission’s personal actions toward her because she “was not a public sector employee.” That is incorrect. Though the Commission has a fair amount of independence from the City of Boston, it remains “a government agency” that was established by the Legislature “as ‘a body politic and corporate and political subdivision of the commonwealth.’ ” Boston Water & Sewer Comm’n v. Commonwealth, 64 Mas. App. Ct. 611, 615 (2005), quoting St. 1977, c. 436, § 1 (“body politic…”). It follows that actions taken by the Commission with respect to its employees, and perhaps especially to a high-ranking official who was serving as chief human resources officer, constitutes official action for the purpose of applying the fair report privilege.

The paragraph describing a motion filed by Theodat to exclude evidence of her salary during trial of the Note Lawsuit is also privileged because it is fair and accurate reports of official action or statements.

Finally, the references in this article to allegations made against Theodat in the complaint filed in the St. Cloud Lawsuit, and the reference to the public unions’ push to have BWSC placed on administrative leave, are also privileged. Although these parts of this article do not involve any report about official acts or statements, they provide relevant context for evaluating the Commission’s official actions in setting Theodat’s salary. See Butcher, 483 Mass. at 754.

The Boston Herald Editorial published on November 26, 2024 (ex. 10) is privileged. The editorial repeats much of the prior reporting on Theodat’s salary. That is a report about official action and is fair and accurate. The additional opinions supporting legislature to require quasi-public agencies to make their payroll data publicly available does not negate the fair report privilege.

The November 26, 2024, article (ex. 11) is generally privileged. This article fairly and accurately reports on the jury verdict in the Note Lawsuit, which is official action. The last paragraph regarding Theodat’s BWSC salary is also a

                                                            -42-

privileged, fair and accurate report about official action (the decision to pay Theodat that amount).

Theodat’s argument that the Boston Herald’s reporting about the Note Lawsuit was not fair and accurate because it did not cover everything that happened in connection with the trial, and left out details that were allegedly favorable to Theodat, is without merit. See Oort v. DaSilva, No. 02-4041, 2004 WL 2070977, at *6–*7 (Mass. Super. Sept. 15, 2004) (Gants, J.). As noted above, to establish that a report was “fair and accurate,” a publisher “must show only the ‘factual correctness of the events reported,’ and not ‘the truth about the events that actually transpired.’ ” Butcher, 483 Mass. at 757, quoting Yohe, 321 F.3d at 44.

However, the portions of this article that recap allegations against Theodat in the St. Cloud Lawsuit are not privileged, because those parts of the article are not a report about any official statement or action and are not relevant context for the reporting about the Note Lawsuit.

The February 6, 2025, article (ex. 12) is privileged. This article focuses on two official actions by the Commission—its decision to place Theodat on administrative leave, and its decision to terminate Flaherty’s employment as the agency’s general counsel. Since the Commission is a public governmental agency, see Boston Water & Sewer Comm’n, 64 Mas. App. Ct. at 615, its decisions to place Theodat on leave and fire Flaherty are “official action” for the purpose of applying the fair report privilege. See Howell, 455 Mass. at 659 (decision by local sewer commission to place employee on administrative leave was official action). The article also compares Theodat’s salary (another form of official action) to the salaries paid to other BWSC officials. And the article reports the jury verdict in the Note Lawsuit, which was also official action. All of this reporting is fair and accurate.

Theodat’s argument that the decision to place her on leave was not official action because “there were no pre-disciplinary or pre-termination hearings or proceedings” is without merit. The fair report privilege applies to reports about any kind of government action, whether it involves judicial or quasi-judicial proceedings or not. See Butcher, 483 Mass. at 748 (“the fair report privilege has grown beyond its judicial or quasi-judicial roots”); see also Elm Medical Laboratory, Inc. v. RKO General, Inc., 403 Mass. 779, 783 (1989) (privilege applies to reports about public health warnings issued by government agency).

This article also includes a fairly lengthy discussion of allegations made against Theodat in the complaint filed in the St. Cloud Lawsuit. This part of the article

                                                            -43-

is privileged because it is reasonably presented as context for the Commission’s decision to place Theodat on administrative leave. See Butcher, 483 Mass. at 754. Though the article provides no direct evidence that the Commission placed Theodat on leave because of the civil litigation against her, it was reasonable for the Boston Herald to invite its readers to draw such an inference under the circumstances. Indeed, Theodat asserts in her amended complaint that the Herald got it exactly right, alleging that part of the allegedly mixed motives for this official action by the Commission was its concern about the allegations against Theodat in the St. Cloud Lawsuit.

The February 23, 2025, article (ex. 14) is privileged. This article reports on a number of official actions or statements: that the Secretary of State’s office had ordered the Commission to provide public records to the Herald about Theodat’s suspension and Flaherty’s firing; the salary that BWSC paid to Theodat, and the jury verdict against Theodat in the Note Lawsuit. All of this is fair and accurate. The rest of the article, concerning a “cease-and-desist” letter that Theodat’s lawyer sent to the Herald and the response by the Herald’s lawyer, provides relevant context that would help readers evaluate the Herald’s response (or lack of response) to the unions’ letter.

The March 2, 2025, article (ex. 15) is privileged. This article is titled, “Why Boston Water & Sewer got rid of Michael Flaherty.” The focus of the article is indeed on the Commission’s official action to terminate Flaherty’s employment. The article also reports on the Commission’s official action to place Theodat on paid administrative leave. The article is fair and accurate. The reference in this article to allegations against Theodat in the St. Cloud Lawsuit provides context relevant to evaluating the Commission’s action in placing Theodat on leave.

The March 12, 2025, article (ex. 16) is privileged. This article reports fairly and accurately on official statements by Mayor Wu about staffing issues at the Commission, including the termination of Flaherty’s employment as general counsel. The references in this article to the allegations against Theodat in the St. Cloud Lawsuit provide relevant context for this report, as the Herald notes that Wu was continuing to point out that the Commission makes its own personnel decisions, and that “Wu’s office made similar remarks” in response to Herald reporting about that litigation.

The April 5, 2025, article (ex. 17) is not privileged, at least with respect to the portions of the article that form part of the basis for Theodat’s claims. This article is titled, “FBI Boston ‘deed fraud’ warning resembles Water and Sewer

                                                            -44-

Commission HR director civil suit.” Though the article discusses recent official statements by the FBI warning people to beware of fraudulent home title theft schemes, the main thrust of the article is to report on assertions by Attorney Arroyo that the FBI warning sounds a lot like the plaintiff’s allegations in the St. Cloud Lawsuit, and to recount various allegations against Theodat in the complaint that had been filed in that case. None of that involves a report about official action or statements, and there is nothing in the article to suggest that the claims against Theodat helped to inform and therefore gave context to the FBI’s warnings.

The April 13, 2025, article (ex. 18) is privileged. The article reports that the Commission had hired two law firms to investigate Theodat, which constitutes official action. It also reports on official statements that the Commission made to the Supervisor of Public Records in responding to a public records request by the Herald. These reports are fair and accurate. The portions of the article that (once again) summarize allegations against Theodat in the St. Cloud Lawsuit and in the Note Lawsuit provide appropriate context for this official action and these official statements by the Commission.

The April 24, 2025, article (ex. 19) is privileged. This article reports that the Theodat’s employment with the Commission ended as of April 18. For the reasons discussed above, the apparent termination of Theodat’s employment constitutes official action. And the report was fair and accurate. Once again, the portions of the article that recount allegations against Theodat in the Note Lawsuit and in the St. Cloud Lawsuit are privileged because they provide appropriate context. See Butcher, 483 Mass. at 754.

The May 13, 2025, article (ex. 20) is privileged. This article reports that the Commission had in fact fired Theodat, which is official action. This report is fair and accurate. The rest of the article provides appropriate context for the report about the Commission’s decision to terminate Theodat’s employment.

The May 24, 2025, article (ex. 21[11]) is privileged. This article reports on official actions by BWSC in holding an “executive session-only meeting” to discussion litigation and legal advice, terminating Theodat’s employment, and hiring outside law firms to investigate Theodat. This reporting was fair and accurate. The rest of the article provides appropriate context for these reports.

[11] It appears that Theodat inadvertently included a duplicate copy of the April 24, 2025, article as exhibit 21 to her amended complaint. The Herald Parties provided a copy of the May 24, 2025, article as exhibit 70 to their memorandum.

                                                            -45-

The October 11, 2025, article (ex. 22) is not privileged. This is an article about Theodat filing this lawsuit and about the allegations she made in her original complaint. It is not a report about official action or statements.

Finally, the October 18, 2025, article (ex. 23) is privileged. The article reports that a Boston city councilor had publicly called upon Mayor Wu to investigate the Commission. These were official statements, and thus reporting about them is protected by the fair report privilege. The discussion in this article about the St. Cloud Lawsuit and the Note Lawsuit provide appropriate context and are therefore privileged as well. See Butcher, 483 Mass. at 754.

In sum, the Court finds and concludes that the fair report privilege: (i) does not apply to the articles published on September 25 and October 7, 2024, and on April 4 and October 10, 2025; (ii) does not apply to those portions of the November 14, November 20, and November 26, 2024, articles that discuss allegations made against Theodat in the St. Cloud Lawsuit; but (iii) does apply to the remaining articles and to the editorial challenged by Theodat.

5.3. Claims as to Non-Privileged Articles. Having determined that some of the challenged articles in the Boston Herald are not protected (or at least not fully protected) by the fair report privilege, the Court must determine whether the Herald Parties are entitled to dismissal of claims based on the non-privileged articles on some other ground.

The Court concludes that the Herald Parties are entitled to dismissal of the claims against them with respect to the non-privileged articles because the factual allegations in Theodat’s amended complaint do not plausibly suggest that the Herald Parties are liable on any of the theories invoked by Theodat. Indeed, if the fair report privilege did not apply as discussed above, the Herald Parties would still be entitled to dismissal of all claims against them for the reasons discussed below.[12]

Theodat’s claims against the Herald Parties fail because her amended complaint does not alleged facts plausibly suggesting that these defendants acted with “actual malice” by publishing things that they knew were false or that they acted with reckless disregard of whether the things that they published were false. Since Theodat was a public official, actual malice is an

[12] Similarly, if Theodat had asserted a plausible basis for including the parent company MediaNews Group in her claims against the Herald Parties, MediaNews would still be entitled to dismissal of the claims against it for the reasons discussed below.

                                                            -46-

element not only of her claim for defamation, but also of her other tort claims based on the Boston Herald’s publications. The other tort claims for intentional interference, intentional infliction of emotional distress, invasion of privacy, and civil conspiracy also fail because the amended complaint does not plausibly suggest that Theodat can establish other elements of those claims. The Court will therefore allow the Herald Parties’ motion to dismiss.

5.3.1. Defamation Claim. Theodat has failed to state a viable claim for defamation against the Herald Parties because her high-level position at the Commission made Theodat a public official, yet she has failed to alleged facts plausibly suggesting that the Herald Parties acted with “actual malice” in publishing the allegedly defamatory articles and editorial.

5.3.1.1. The “Actual Malice” Requirement. “The First Amendment to the United States Constitution sets clear limits on the application of defamation law with respect to any factual statement published in the news media about a public official or public figure, even when that statement is shown to be false and defamatory.” Murphy v. Boston Herald, Inc., 449 Mass. 42, 48 (2007).

For a public official to assert a viable claim for defamation, they must allege facts plausibly suggesting not only that the defendant published statements that otherwise meet “the common-law elements of defamation” but also that they did so “with actual malice.” Van Liew v. Eliopoulos, 92 Mass. App. Ct. 114, 121 (2017); accord New York Times Co. v. Sullivan, 376 U.S. 254, 279–280 (1964).

“Actual malice” requires “a showing that the defamatory falsehood was published with knowledge that it was false or reckless disregard of whether it was false.” King v. Globe Newspaper Co., 400 Mass. 705, 719 (1987), quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 867 (1975). “[A] finding of ‘reckless disregard’ requires proof, not of mere negligence, but that the author ‘in fact entertained serious doubts as to the truth of his publication.’ ” Murphy, 449 Mass. at 48, quoting St. Amant v. Thompson, 390 U.S. 727, 730–731 (1968).

5.3.1.2. Theodat’s Status as a Public Official. Though Theodat repeatedly alleges in her amended complaint that she was “neither an elected nor an appointed public official,” that unsupported conclusion is not dispositive. As noted above, the Court must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling, 473 Mass. at 339, quoting Curtis, 458 Mass. at 676.

Where (as in this case) the facts concerning the nature of a plaintiff’s position or status “are uncontested, the question whether the plaintiff is a public official

                                                            -47-

is a question of law for the court.” Netherwood v. Amer. Fed'n of State, Cnty. & Mun. Emps., Loc. 1725, 53 Mass. App. Ct. 11, 15–16 (2001); accord Lane v. MPG Newspapers, 438 Mass. 476, 479 (2003); Stone, 367 Mass. at 862–863.

The category of “public officials” includes “at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Netherwood, 53 Mass. App. Ct. at 16, quoting Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). “The governmental position must be one where the public would have an independent interest in the qualifications and performance of one who holds it, beyond the interest they would have in the performance and qualifications of all government employees.” Id.

In determining whether a plaintiff is or was a public official, “[o]ther relevant considerations include the employee's remuneration and duties, his or her participation in decisions on public issues, the impact of the government position on everyday life, the potential for social harm from abuse of the government position, and the employee’s access to the press.” Netherwood,    53 Mass. App. Ct. at 16. “The inquiry, moreover, is to be informed further by ‘the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ ” Id., quoting New York Times Co. v. Sullivan, 376 U.S. at 270.

As noted above, the Commission is “a government agency” that was established by the Legislature “as ‘a body politic and corporate and political subdivision of the commonwealth.’ ” Boston Water & Sewer Comm’n, 64 Mas. App. Ct. at 615, quoting St. 1977, c. 436, § 1. It follows that Theodat’s assertion that she could not be a public official because the Commission “is separate and independent from” the City of Boston is unavailing.

Theodat’s amended complaint establishes that she served as the Commission’s Chief Human Resources Officer, and filled the same role previously when her job title was Director of Human Resources. It also alleges that this was a high- level position in which Theodat was one of the “senior staff members” employed by the Commission, reported directly to the Commission’s Executive Director, was responsible for overseeing all human resources functions including the hiring of new employees, and earned an annual salary of over $200,000 during the time that the Boston Herald was publishing the challenged articles.

                                                            -48-

The amended complaint emphasizes the importance of Theodat’s role as Chief Human Resources Officer, noting that the Commission is a large organization that employs about 500 people who operate the City of Boston’s water and sewer system in order to provide drinking water and sewer services “to more than one million people daily.”

Thus, Theodat in a senior managerial role with substantial responsibilities for which she received significant remuneration. Her decisions and work directly affected all BWSC’s employees and thus indirectly affected everyone who lives or works in or visits Boston and relies on the Commission to deliver clean water and safely dispose of sewage.

The Court finds and conclude that these undisputed facts establish that Theodat was a public official who must plead and then establish “actual malice” in order to state and prove a defamation claim against the Herald Parties. Theodat’s status as a public official is at least as clear as others whom appellate courts have held were public officials as a matter of law. See Netherwood, 53 Mass. App. Ct. at 17–18 (nonelected director of maintenance and transportation for a sizable regional school district was public official); see also Rotkiewicz v. Sadowsky, 431 Mass. 748, 752 (2000) (“police officers, even patrol- level police officers such as the plaintiff, are ‘public officials’ for purposes of defamation”); Callahan v. Westinghouse Broadcasting Co., Inc., 372 Mass. 582, 582 (1977) (member of Boston Licensing Board was public official); Jensen v. Registrar of Motor Vehicles, no. 04-P-155, 2006 WL 1408486, at *5 (Mass. App. Ct. May 23, 2006) (nonelected manager of RMV’s Springfield branch for public official) (unpublished rule 1:28 decision); see also Howell, 455 Mass. at 664 (nonelected superintendent of town sewer department was public figure).

5.3.1.3. Failure to Allege Actual Malice. The Herald Parties are entitled to dismissal of the defamation claim because Theodat failed “to allege specific facts to prove that” the Herald Parties published any statements “with knowledge of their falsity or with reckless disregard of their truth or falsity.” See Edwards v. Commonwealth, 477 Mass. 254, 267 (2017) (ordering dismissal, and reversing order denying motion to dismiss); Franchini v. Bangor Publishing Co., Inc., 109 F.4th 13, 35–37 (1st Cir. 2024) (affirming dismissal); Lemelson v. Bloomberg L.P., 903 F.3d 19, 23–26 (1st Cir. 2018) (affirming dismissal).

Theodat’s conclusory allegation in her amended complaint that the Herald Parties published false statements “knowingly, intentionally, with subjective awareness and/or with reckless and utter disregard for their falsity” does not suffice to state a claim. Such “ ’actual-malice buzzwords … are merely legal

                                                            -49-

conclusions, which must be backed by well-pled facts’ to be sufficient.” Franchini, 109 F.4th at 35, quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 56 (1st Cir. 2012); accord Edwards, 477 Mass. at 260. In deciding a rule 12(b)(6) motion to dismiss, the Court must accept as true only the facts alleged in the complaint, not any “legal conclusions cast in the form of factual allegations.” Edwards, supra, quoting Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009).

Finally, though Theodat also alleges that the Herald Parties treated her unfairly, and alleges that they acted “with ill-will” toward her, that does not plausibly suggest that they acted with the “actual malice” required for a public official or public figure to assert a defamation claim. “In the context of defamation, the term ‘actual malice’ does not mean the defendant’s dislike of, hatred of, or ill will toward, the plaintiff. Rather, actual malice means that the ‘defamatory falsehood was published with knowledge that it was false or reckless disregard of whether it was false.” Edwards, 477 Mass. at 266, quoting Rotkiewicz, 431 Mass. at 755.

5.3.2. Intentional Infliction of Emotional Distress. Theodat’s claim against the Herald Parties for intentional infliction of emotion distress in count XII fails for two, independent reasons.

First, the same constitutional “actual malice” that applies to the defamation claim against the Herald Parties under the First Amendment also applies to the intentional infliction claim against these defendants.

Public officials and public figures like Theodat who claim that they suffered emotional distress due to published speech may recover “only … if they can prove that the publication that harmed them contained a false statement of fact that was made with actual malice.” Fiacco v. Sigman Alpha Epsilon Fraternity, 528 F.3d 94, 99 (1st Cir. 2008); accord Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988); Rotkiewicz, 431 Mass. at 755.

As discussed above, the amended complaint does not include any factual allegations plausibly suggesting that the Herald Parties published any statements with knowledge of their falsity or with reckless disregard of their truth or falsity. Theodat has therefore failed to state a viable claim against the Herald Parties for intentional infliction of emotional distress.

Second, Theodat has not made any factual allegations plausibly suggesting that the Herald Parties engaged in misconduct that was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

                                                            -50-

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Roman, 461 Mass. at 718, quoting Foley, 400 Mass. at 99. To the contrary, and as noted above, newspapers have a constitutionally-protected right to report on public officials, and even to do so by means of “vehement, caustic, and sometimes unpleasantly sharp attacks.” Netherwood, 53 Mass. App. Ct. at 16, quoting New York Times Co. v. Sullivan, 376 U.S. at 270.

5.3.3. Intentional Interference with Advantageous Relations. The Herald Parties are also entitled to dismiss of the intentional interference claim against them in count VII for two, independent reasons.

First, Theodat cannot bring an intentional interference claim based on the publication of constitutionally-protected newspaper articles without alleging facts plausibly suggesting that the newspaper acted with “actual malice” by publishing statements with knowledge of their falsity or with reckless disregard of their truth or falsity. See Ayyadurai v. Floor64, Inc., 270 F.Supp.3d 343, 368–369 (D.Mass. 2017) (Saylor, J.) (dismissing claim); Piccone v. Bartels, 40 F.Supp.3d 198, 201–202 (D.Mass. 2014) (Wolf, J.) (granting summary judgment), aff’d, 785 F.3d 766, 774–775 (1st Cir. 2015); see also Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994) (actual malice standard required for an actionable defamation claim “must equally be met for a tortious interference claim based on the same conduct or statements”); Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir. 1990) (tortious interference claims “are subject to the same first amendment requirements that govern actions for defamation”).

As discussed above, the amended complaint does not include any such allegations.

Second, the factual allegations in Theodat’s amended complaint do not plausibly suggest that the Herald Parties had an improper motive or used improper means in publishing the challenged articles and editorial. “An essential element of the tort of intentional interference with business relations is that the interference be improper in motive or means.” Dulgarian v. Stone, 420 Mass. 843, 851 (1995).

Theodat’s complaint fails to state a viable claim for intentional interference against the Herald Parties because she alleges no facts suggesting that the Boston Herald published the challenged articles and editorial “for any reason other than reporting on an issue of public concern” or “for any purpose other

                                                            -51-

than journalism.” See Ayyadurai, 270 F.Supp.3d at 369 (dismissing claim), quoting Dulgarian, 420 Mass. at 852 (affirming summary judgment).

As noted above, newspapers have a constitutionally-protected right to report on public officials, and even to do so by means of “vehement, caustic, and sometimes unpleasantly sharp attacks.” Netherwood, 53 Mass. App. Ct. at 16, quoting New York Times Co. v. Sullivan, 376 U.S. at 270. And, as discussed in the previous section, Theodat’s factual allegations do not plausibly suggest that the Herald Parties forfeited their First Amendment protections by acting with actual malice.

5.3.4. Invasion of Privacy. Theodat’s claim against the Herald Parties for invasion of privacy in count XI also fails for two, independent reasons.

First, the constitutional requirement of “actual malice” applies with full force to a claim for invasion of privacy that are based on constitutionally-protected newspaper articles. See Moldea v. New York Times Co., 22 F.3d 310, 319–320 (D.C. Cir. 1994). This claim fails because Theodat has not alleged facts plausibly suggesting that the Herald Parties published statements with knowledge of their falsity or with reckless disregard of their truth or falsity.

Second, as discussed above in § 2.6 of this decision, the Privacy Act cannot be used to punish the disclosure of information about a public employee’s fitness to continue serving in a position of public interest. See  Mulgrew,  410  Mass. at 637 (statements that a police officer was a “sick leave abuser” who resigned under a “cloud of suspicion” did not violate officer’s privacy, given the public interest “in having a police force comprised of competent and able individuals”); Gauthier, 408 Mass. at 339 (same re disclosure of police cadet’s drug test failure); Hastings & Sons Publishing, 374 Mass. at 818–819.

Since Theodat held a high-level position with an important governmental agency, the Boston Herald’s reporting about civil lawsuits accusing her of fraud and failure to repay a loan concerned matters of legitimate public concern and thus could not constitute an invasion of privacy. See Peckham v. Boston Hearld, Inc., 48 Mass. App. Ct. 282, 289 (1999) (confidential paternity lawsuit against public figure, a “prominent real estate professional and … recognized civic leader,” was matter of legitimate public concern).

5.3.5. Conspiracy. Finally, the Herald Parties are also entitled to dismissal of Theodat’s civil conspiracy claim in count XIII for three, independent reasons.

                                                            -52-

First, the constitutional requirement of “actual malice” also applies to conspiracy claims based on the publication of constitutionally-protected speech. Barr v. Clinton, 370 F.3d 1196, 1203 (D.C. Cir. 2004). This claim therefore also fails because Theodat has not alleged facts plausibly suggesting that the Herald Parties published statements with knowledge of their falsity or with reckless disregard of their truth or falsity.

Second, the amended complaint does not allege facts plausibly suggesting that the Herald Parties conspired with any of the other defendants. Conclusory assertions that the Herald Parties acted in concert with others are not enough to state viable conspiracy claim. See Galiastro v. Mortgage Elec. Reg. Systems, Inc., 467 Mass. 160, 174 (2014). Though Theodat asserts in her opposition that “the facts clearly demonstrate that the Herald Defendants had a common plan with Flaherty, Canty, and Arroyo,” she does not identify any actual factual allegations in her complaint that would support such an inference.

Third, Theodat asserts in her opposition that the Herald Parties participated in the alleged conspiracy by publishing false and defamatory statements about her. Since a claim of civil conspiracy requires a plaintiff to allege facts plausibly suggesting “an underlying tortious act in which two or more persons acted in concert and in furtherance of a common design or agreement,” and the amended complaint does not state a viable claim against the Herald Parties for defamation, her conspiracy claim against these defendants must also be dismissed. See Bartle v. Berry, 80 Mass. App. Ct. 372, 383–384 (2011).

ORDERS

The motion by the Boston Water and Sewer Commission (the “BWSC”), Michael Woodall, Christopher Cook, Armindo Goncalves, Henry Vitale, Peter Hunt, Robert LaMarca, and Janet Mahoney (the “BWSC Defendants”) to strike certain allegations Plaintiff’s the first amended complaint (docket no. 102)      is denied.

The BWSC Defendants’ motion to impound certain documents filed in support of their motion to strike (docket no. 97) is also denied.

The BWSC Defendant’s motion for expedited discovery and an evidentiary hearing (docket no. 130) is denied.

The BWSC Defendants’ motion to dismiss the claims against them (docket  no. 110) is allowed in part and denied in part as follows: (I) the request to dismiss the hostile work environment claim in count I is allowed as to Woodall,

                                                            -53-

Cook, Goncalves, Vitale, and Hunt, and denied as to the Commission, LaMarca, and Mahoney; (ii) the request to dismiss the G.L. c. 151B claim in count II concerning Theodat being placed on administrative leave is allowed as to LaMarca and Mahoney, and denied as to the Commission, Woodall, Cook, Goncalves, Vitale, and Hunt; (iii) the request to dismiss the c. 151B claim in count III concerning the termination of Theodat’s employment is allowed as to Woodall, Cook, Goncalves, Hunt, LaMarca, and Mahoney, and denied as to the Commission and Vitale; (iv) the request to dismiss the defamation claim in count VI is allowed as to all of the BWSC Defendants; (v) the request to dismiss the invasion of privacy claim against the Commission in count X is allowed; (vi) the request to dismiss the intentional infliction of emotional distress claim in count XII is allowed as to all of the BWSC Defendants; and (vii) the request to dismiss the Public Records Act claim against the Commission in count XIV is denied.

Michael Flaherty’s motion to dismiss the claims against him (docket no. 120) is allowed in part and denied in part as follows. This motion is allowed with respect to the c. 151B claim in count III concerning on the termination of Theodat’s employment at the Commission, the defamation claim in count VI, the invasion of privacy claim in count X, and the intentional infliction of emotional distress in count XII. Flaherty’s motion to dismiss is denied with respect to the hostile work environment claim in count I, the c. 151B claim in count II based on being placed on involuntary leave claim, and the claims for intentional interference with advantageous relations in count IX and for civil conspiracy in count XIII.

Mayor Michelle Wu’s and Louis Mandarini’s motion to dismiss the claims against them in counts VII and XII (docket no. 90) is allowed. Plaintiff’s cross- motion for leave to amend her factual allegations against Mayor Wu and Mandarini (docket no. 92) is denied as moot.

Ricardo Arroyo’s special motion to dismiss the claims against him pursuant to G.L. c. 231, § 59H, (docket no. 84) is denied, without prejudice to Mr. Arroyo serving and filing a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).

The motion by MediaNews Group, Inc., to dismiss all claims against it (docket no. 77) is allowed.

The motion by MNG-BH Acquisition LLC, Joseph Dwinell, Gayla Cawley to dismiss all claims against them (docket no. 76) is also allowed.

                                                            -54-

The remaining parties shall confer with each other about and submit to the court a proposed case schedule with appropriate deadlines for filing any further motions to amend pleadings, completing fact discovery, serving any expert reports, and serving and then filing of any motions for summary judgment. The remaining parties shall file a joint proposal regarding an appropriate case schedule no later than July 1, 2026. The Court will hold a scheduling conference to discuss the proposed case schedule by video conference at a time to be set by the session clerk.

/s/Kenneth W. Salinger Justice of the Superior Court

June 9, 2026