Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 1 of 27
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`Civil Action No. 1:23-cv-11278-IT
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`DUANE BAUGHMAN, KATIE MERRILL,
`THE BAUGHMAN COMPANY, INC.,
`d/b/a BAUGHMANMERRILL, and THE
`MERRILL STRATEGY GROUP,
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`PETRA CHRISTINA BETER and JOSEE
`MARIE BETER,
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`Plaintiffs,
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`v.
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`Defendants.
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`MEMORANDUM & ORDER
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`October 11, 2024
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`TALWANI, D.J.
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`Plaintiffs Duane Baughman, Katie Merrill, and their companies, The Baughman
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`Company, Inc., d/b/a BaughmanMerrill (the “Company”), and The Merrill Strategy Group (the
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`“Merrill Group”) bring this action for defamation and defamation per se (Count I) and tortious
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`interference with contractual relationship (Count III) against Defendant Petra Beter (“Beter”) and
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`for tortious interference with prospective business advantage (Count II) and civil conspiracy
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`(Count IV) against Beter and her sister, Defendant Josee Marie Beter (“Josee Beter”). Plaintiffs
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`contend that Defendants “have engaged in a 20+ year smear campaign that has consisted of
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`repeated baseless, unsubstantiated, defamatory allegations that Plaintiff Baughman sexually
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`assaulted Defendant Beter (and others), and that Baughman’s business partner, Plaintiff Merrill,
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`has helped cover it up.” Compl. ¶ 1.
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`Pending before the court are Defendants’ Motion to Strike Plaintiffs’ Complaint Pursuant
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`to the California Anti-SLAPP Law (“Motion to Strike”) [Doc. No. 31] and Defendants’ Motion
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`to Stay Litigation, or in the Alternative, Dismiss Plaintiffs’ Claims (“Motion to Strike” and
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`“Motion to Dismiss”) [Doc. No. 33]. By electronic order [Doc. No. 57], the court denied the
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`Motion to Strike and Motion to Stay, with this written decision to follow. For the following
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`reasons, Defendants’ Motion to Strike and Motion to Stay are DENIED and the Motion to
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`Dismiss is GRANTED as to Counts Two and Four and DENIED as to Counts One and Three.
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`I.
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`Plaintiff’s Complaint
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`Plaintiffs filed their Complaint [Doc. No. 1] on June 6, 2023.
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`A.
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`The Factual Allegations as Set Forth in the Complaint
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`1.
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`General Background
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`Plaintiff Baughman has earned a reputation as a top direct-mail strategists and has been
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`credited with engineering numerous Democratic primary victories for candidates throughout the
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`United States. Compl. ¶ 3 [Doc. No. 1]. Similarly, Plaintiff Merrill is recognized as being one of
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`California’s most successful female and LGBT campaign managers and statewide consultants.
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`Id. Both Baughman and Merrill are domiciled in California, and The Baughman Company and
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`Merrill Strategy Group are California corporations with their principal places of business in
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`California. Id. ¶¶ 16-19. Defendant Beter is believed to be a citizen of Massachusetts, and
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`Defendant Josee Beter is believed to be a citizen of Minnesota. Id. ¶¶ 20-21.
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`2.
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`Events from 2001 – the Bloomberg Mayoral Campaign
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`In 2001, Baughman was working in New York City on then-mayoral-candidate Michael
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`Bloomberg’s campaign. Id. ¶ 5. Beter was hired as a freelance photographer, on a one-time basis,
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`by the Bloomberg campaign to provide a limited number of photos to be used in the direct-mail
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`effort. Id. Baughman and Beter worked together for approximately three hours one afternoon in
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`late September 2001. Id. ¶ 6. They were in public the entire afternoon and never alone,
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`constantly surrounded by other campaign staffers and consultants, including Bloomberg himself.
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`2
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`Id. Following this one-time occasion, Baughman never saw Beter again. Id. Their interaction was
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`brief and strictly professional. Id.
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`Shortly thereafter, Beter sent an invoice to Baughman and was paid an above-market rate
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`for her time and the photos she took. Id. ¶ 7. In total, Beter contributed approximately 80 photos,
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`of which three to five photos were actually used by Baughman on behalf of the Bloomberg
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`campaign. Id.
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`After Bloomberg won his mayoral campaign, Beter demanded an additional $250,000
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`from Baughman, alleging that Baughman’s direct-mail campaign included her photographs
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`without her permission. Id. ¶ 8. Beter went on to make several more demands for compensation
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`over the following years, at one point demanding in excess of $1 million. Id. ¶ 9. Baughman
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`never responded to these requests. Id. ¶ 46.
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`3.
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`2005 – 2012 – Defendants’ Allegations of a 2001 Sexual Assault
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`Beter’s first mention of the alleged sexual assault came in an October 31, 2005 “cease
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`and desist letter” sent by a Minnesota attorney to Baughman and to Bloomberg campaign
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`manager Kevin Sheekey. Id. ¶ 47. The letter stated:
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`Although I am advised that my client was severely traumatized as a result of
`having been sexually assaulted on two occasions in September, 2001, she is quite
`certain in her memory that she did not grant your company, Mayor Bloomberg or
`his campaign the right to use her photographs of Mayor Bloomberg outside the
`2001 campaign.
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`Id.
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`In a March 14, 2007 email to Sheekey and deputy mayor Patti Harris, shortly after
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`Baughman was hired to work on Hilary Clinton’s 2006 campaign for Senate, Beter wrote “[I]
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`know you would have told [Hilary Clinton’s] team that knew from experience that [B]aughman
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`was radioactive and a pervert.” Id. ¶ 51.
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`3
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`In 2008, Baughman was hired to work on Clinton’s presidential campaign. Id. ¶ 52. On
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`July 29, 2008, Josee Beter forwarded an email to Harold Ickes, the former White House Deputy
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`Chief of Staff for President Clinton, which was also apparently sent to eleven other high-ranking
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`individuals in the Democratic Party and Senator Clinton’s campaign staff, about the Clinton
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`campaign’s hiring of Baughman. Id. ¶ 53. The email stated, “[y]esterday I was deeply disturbed
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`to learn that Duane Baughman, a man known to Mark Penn, Doug Schoen and Ed Skyler as
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`having sexually assaulted my sister, was hired by Penn to work on Senator Clinton’s presidential
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`campaign[.]” Id. ¶ 53(a). The email then referred to Plaintiff Baughman as “politically toxic,
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`swastika wielding, serial sexual pervert Duane Baughman” and “a man known for his abuse of
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`women.” Id. ¶¶ 53(c)-(d).
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`On August 1, 2008, Josee Beter forwarded this email to Baughman, stating “FYI – I sent
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`this letter to Harold Ickes, Geoff Garin, Ed Syler, Mayor Bloomberg and multiple other people
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`and oddly […] no one came to your defense.” Id. at ¶ 55(a). She added “Baughman, I have not
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`forgotten what you did to my sister and its [sic] a disgrace that everyone involved keeps
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`pretending that this didn’t happen.” Id. ¶ 55(b).
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`These 2008 emails ultimately resulted in a federal investigation into Defendants. Id. ¶ 58.
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`In August 2012, the New York Post published an article noting the federal investigation and
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`Defendants’ new allegations that the assault took place “in a kitchen area at Bloomberg’s
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`campaign headquarters in Midtown” and that “Bloomberg’s former right-hand man, Ed Skyler…
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`witnessed the incident and did nothing.” Id. ¶ 60.
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`4.
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`Beter’s 2017 Lawsuit
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`In 2017, Beter filed a lawsuit in the Southern District of New York (Case No. 17-10247)
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`against Rupert Murdoch and others (not including Baughman, who was unaware of the suit
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`4
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`during its pendency). Id. ¶ 64. Beter’s complaint alleged that Baughman sexually assaulted her at
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`the Bloomberg campaign headquarters on September 14, 2001, and engaged in other sexual
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`misconduct incidents while working on the Bloomberg campaign, and that the Bloomberg
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`campaign covered up these incidents. Id. This case was ultimately dismissed. Id.
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`5.
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`Josee Beter’s 2018 Allegations of a 2001 Assault of Her Sister
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`On October 15, 2018, Josee Beter contacted Ruth Bernstein at EMC Research, a vendor
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`to the Fight Back California Super PAC co-founded by Merrill. Id. ¶ 66. The email again alleged
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`that Baughman had sexually assaulted Petra Beter and included further allegations of
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`cyberstalking and threating physical harm against Beter. Id. ¶ 67.
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`6.
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`Beter’s 2020 Allegations of a 2001 Sexual Assault
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`In or around February 2020, when Beter learned that Merrill was working as a consultant
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`on Tom Steyer’s 2020 presidential campaign, she contacted the COO of the Steyer campaign,
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`Chris Fadeff, and again falsely claimed that Baughman had sexually assaulted her. Id. ¶ 68. This
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`was done in an apparent effort to get Merrill fired. Id.
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`7.
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`Loss of the SKDK Opportunity
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`In or around July 2020, Merrill was contacted by a former colleague, Karen Olick, who
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`was working at the political consulting firm SKDK in Washington, D.C., because SKDK was
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`pitching the California Secretary of State on a new contract for a California state-wide voting
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`program. Id. ¶ 69. Olick said she wanted to add Merrill to the pitch given Merrill’s knowledge
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`and experience as a political consultant in California. Id. Merrill fully intended to work with
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`SKDK, and the collaboration likely would have yielded a profit of at least $1,000,000 for
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`Plaintiffs. Id. However, shortly after this initial discussion, Merrill got a call from Olick
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`5
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`explaining that they were going in a different direction and that there was a rumor going around
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`that Merrill’s business partner (Baughman) had previously sexually assaulted someone. Id.
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`8.
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`Beter’s 2023 Allegations of a 2001 Sexual Assault
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`In 2023, Merrill was retained to work on Congresswoman Barbara Lee’s campaign for
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`U.S. Senate in California as the Chief Strategist and Spokeswoman. Id. ¶ 72. On March 28, 2023,
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`Beter emailed Janica Kyriacopoulos, a team member for the Lee campaign, writing in part:
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`When I was 27 years old Duane Baughman assaulted me in an empty campaign
`office in New York City. He was 50 years old and I was working under him on a
`campaign for Mayor. For years, Ms. Merrill has known what he did to me on that
`day and about his history of sexual misconduct with other women yet she
`continues to work alongside him and provide cover for him…
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`When I came forward to the campaign three days later I was told that I would be
`fired if I told anyone what had happened, “don’t tell anyone about this you do
`want to keeping working (on the campaign) don’t you?” and then they said that
`Baughman had harassed another woman on the campaign, a Hispanic woman, and
`when she complained they “had to get rid of her.” Years later I learned that this in
`fact happened and the woman, a receptionist on the campaign, was fired.
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`For many years following the assault I was told and then later threatened to keep
`quiet. It is important for me to tell you that in all of these years my account has
`never changed and I have never asked anyone for anything - only that Baughman
`not be allowed to work on anymore Democratic campaigns and yet he continued
`to be hired by high level people in the party.
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`In 2008 after I learned that Baughman had worked on Senator Clinton’s first
`Presidential Campaign I began to speak out to members of the Democratic Party
`about what he had done to me. In response Duane Baughman began threatening
`me in a number of disturbing ways, sending me threats of physical harm which I
`then provided to a political reporter and his editor at the New York Times, some
`in real time…
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`Duane Baughman’s misconduct is known at the highest levels of the Democratic
`Party. After working on Senator Clinton’s Presidential run Baughman fell off the
`map and became a pariah in the party because I had begun telling people what he
`had done to me and people believed me, and then other women began coming
`forward. That is why his resume is so sparse following Senator Clinton’s first
`Presidential Campaign.
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 7 of 27
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`But in 2017 Katie Merrill enabled him to make his return to the Party, offering
`him a lifeline by joining forces with him in their newly created partnership firm
`Baughman Merrill with Baughman working in the background and Merrill
`standing out front.
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`In January 2020 I learned that Katie Merrill was working on Tom Steyer’s
`Campaign for President, work that is today being promoted on the Baughman
`Merrill website. When I informed the Steyer campaign near the end of their run of
`what Baughman had done to me and Ms. Merrill’s role in fronting for him they
`believed me and immediately took action. The lawyer for the Steyer campaign
`apologized to me on behalf of the campaign and called Baughman “a criminal.”
`…
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` I
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` am writing to inform you of this and ask that you not allow Ms. Merrill to be
`part of this historic campaign. Her dishonesty and lack of judgment make her
`unfit to speak for Congresswoman Lee….
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`Id. ¶ 73.
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`Ms. Kyriacopoulos forwarded Beter’s email to Joyce Kazadi, Congresswoman Lee’s
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`Chief of Staff, who forwarded the email to Plaintiff Merrill. Id. ¶ 76. Beter sent several follow-up
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`emails to Ms. Kyriacopoulos and to the Lee campaign official press email address. Id. ¶ 77. In
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`part, Beter stated, “I only ask that Ms. Merrill not be allowed to work on the campaign. She
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`should not be rewarded and trusted with such an important job[.]” Id.
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`Beter sent a fourth email to Kyriacopoulos and the Lee campaign press email on April 14,
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`2023. Id. ¶ 78. In addition to voicing frustration at being ignored, she (a) speculated that Merrill
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`had access to the Lee campaign press email and had deleted Beter’s messages; (b) requested
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`contact information for Congressman Ro Khanna, who she stated was Chair of Congresswoman
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`Lee’s campaign; and (c) forwarded a purported August 20, 2020 email from Chris Fadeff (COO
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`of the Steyer campaign). Id. The purported email conveyed how seriously the Steyer campaign
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`took Beter’s allegations and stated that the campaign “terminated their relationship with Katie
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`Merrill.” Id. However, Fadeff has no record of this email ever being written and has no
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`recollection or record of this email ever being sent. Id. Neither Fadeff nor anyone from the
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`7
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`Steyer campaign ever terminated their relationship with Merrill and the email did not come from
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`Fadeff. Id.
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`These emails with Congresswoman Lee’s staff have caused serious problems in
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`Plaintiffs’ business, including but not limited to, impeding the Merrill Group’s ability to
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`efficiently do the job required of them and provide the expected level of service. Id. ¶ 79.
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`On April 14, 2023, Beter sent an email to Marie Baldassarre, Congressman Khanna’s
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`Communications Advisor and Chief of Staff, alleging “troubling issues with Katie Merrill and
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`her business partner Duane Baughman who assaulted me when I was 27 years old and he was 50
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`years old.” Id. ¶ 81. She also reiterated that “Ms. Merrill should not work in any capacity on
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`Congresswoman Lee’s historic campaign” and that “Congresswoman Lee would not approve of
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`Ms. Merrill’s protection of her business partner Duane Baughman which has enabled him to
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`receive millions of dollars in donor funds despite his well known history of sexual violence
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`against women.” Id. Beter also forwarded copies of the March 28, 2023 email she wrote to Ms.
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`Kyriacopoulos and the August 20, 2020 email purportedly from Fadeff. Id.
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` On April 14, 2023, Beter forwarded her email to Congressman Khanna’s Deputy
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`Communications Director. Id. ¶ 82. On April 18, 2023, Beter emailed Congressman Khanna’s
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`Chief of Staff and stated “I would like to know if Katie Merrill and Duane Baughman are being
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`kept on Congresswoman Lee’s campaign for Senate and if they are receiving any donor funds
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`which I object to in the strongest terms. Id. ¶ 83. She also offered to provide details of “Duane
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`Baughman’s assault on me and the overwhelming harm he caused me.” Id.
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`8
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`B.
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`Plaintiffs’ Causes of Action
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`Count I alleges defamation and defamation per se against Beter for her March 28, 2023
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`email to Janica Kyriacopoulos, which Beter allegedly forwarded to numerous other individuals,
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`and her April 14, 2023, and April 18, 2023 emails to Baldassarre.
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`As to the March 28, 2023 email, Plaintiffs assert that the statements therein are false and
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`defamatory for the following reasons: Baughman never assaulted Beter or any other woman;
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`Baughman was never in the campaign office with Beter (and did not have independent access to
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`the office); Baughman was 36 years old in 2001, not 50; Beter did not work “under” Baughman
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`on the campaign; no one on the campaign threatened to “fire” Beter because she did not work on
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`the campaign—she was hired as a freelance photographer for a single-day photoshoot; no one at
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`the campaign ever told Beter that Baughman had harassed another woman who was subsequently
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`fired, because Baughman never harassed another woman; Baughman never threatened Beter;
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`Baughman has never communicated with Beter outside of that one afternoon in September 2001,
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`and all of their interactions that day were strictly professional; and Merrill has never covered up
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`Baughman’s “history of sexual misconduct” because there is nothing to cover up. Id. ¶ 74.
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`Count II alleges tortious interference with a prospective business advantage against both
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`Defendants regarding Plaintiffs’ contemplated contract with SKDK in July 2020.
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`Count III alleges tortious interference with a contractual relationship against Beter for her
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`alleged efforts to get Plaintiffs terminated from Congresswoman Lee’s campaign.
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`Count IV alleges civil conspiracy against both Defendants for conspiring to publish and
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`republish defamatory allegations against Plaintiff Baughman.
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`9
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 10 of 27
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`II.
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`Procedural Background
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`On November 3, 2023, Plaintiffs filed a Motion for Alternative Service [Doc. No. 13],
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`detailing the difficulties in serving Defendants. On November 21, 2023, the court granted the
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`motion in part, extending the deadline to personally serve the Defendants. [Doc. No. 14].
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`Meanwhile, on November 20, 2023, Beter filed an action against Baughman and two
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`others in state court in New York, alleging that she was sexually assaulted in September 2001.
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`See Beter Complaint, Ex. B to Mem. ISO Mot. to Strike [Doc. No. 34-2]. That case was removed
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`to the Southern District of New York. Beter v. Baughman, et al., 1:24-cv-00079-GHW-RFT
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`(S.D.N.Y. 2024).
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`On January 24, 2024, Defendants waived service of the summons here. [Doc. Nos. 16,
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`17]. On April 1, 2024, Defendants filed the Motion to Strike [Doc. No. 31]. In support,
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`Defendants filed a Memorandum [Doc. No. 32] and a copy of Beter’s unverified complaint in the
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`later-filed New York case [Doc. No. 32-2]. Defendants also filed their Motion to Stay and
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`Motion to Dismiss [Doc. No. 33]. Plaintiffs filed Oppositions [Doc. Nos. 47, 49] and, in
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`opposition to the Motion to Strike, Baughman’s and Merrill’s Declarations [Doc. Nos. 45, 46]
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`(with exhibits).
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`III. Defendants’ Motion to Strike
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`A. California and Massachusetts’ Anti-SLAPP Laws
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`Defendants assert rights under Anti-Strategic Lawsuit Against Public Participation (“anti-
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`SLAPP”) statutes in California (where Plaintiffs reside), or in the alternative, in Massachusetts
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`(where Defendant Beter purportedly resides). See Cal. Civ. Proc. Code § 425.16(b)(1); M.G.L. c.
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`231, § 59H.
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`California’s Anti-SLAPP scheme provides that “[a] cause of action against a person
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`arising from any act of that person in furtherance of the person’s right of petition or free speech
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 11 of 27
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`under the United States Constitution or the California Constitution in connection with a public
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`issue shall be subject to a special motion to strike, unless the court determines that the plaintiff
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`has established that there is a probability that the plaintiff will prevail on the claim.” Cal. Civ.
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`Proc. Code § 425.16(b)(1). In ruling on an Anti-SLAPP motion pursuant to California law,
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`courts follow a two-step process. Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53,
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`67, 52 P.3d 685 (2002). “First, the court decides whether the defendant has made a threshold
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`showing that the challenged cause of action is one arising from protected activity.” Id. This
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`requires the movant to demonstrate that the acts at issue were taken “in furtherance of the
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`person’s right of petition or free speech… in connection with a public issue,” as defined in
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`§ 425.16(e). That section defines such an act to include:
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`(1) any written or oral statement or writing made before a legislative, executive,
`or judicial proceeding, or any other official proceeding authorized by law, (2) any
`written or oral statement or writing made in connection with an issue under
`consideration or review by a legislative, executive, or judicial body, or any other
`official proceeding authorized by law, (3) any written or oral statement or writing
`made in a place open to the public or a public forum in connection with an issue
`of public interest, or (4) any other conduct in furtherance of the exercise of the
`constitutional right of petition or the constitutional right of free speech in
`connection with a public issue or an issue of public interest.
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`Cal. Civ. Proc. Code § 425.16(e). Under this statute, if the court finds such a showing has been
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`made, then at the second step, the court “determines whether the plaintiff has demonstrated a
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`probability of prevailing on the claim.” Equilon, 29 Cal. 4th at 67.
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`The Massachusetts Anti-SLAPP statute allows parties to bring a special motion to strike
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`where they “assert[] that the civil claims, counterclaims, or cross claims against said party are
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`based on said party’s exercise of its right of petition under the constitution of the United States or
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`of the commonwealth.” M.G.L. c.231, § 59H. Unlike California’s Anti-SLAPP scheme, which
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`protects acts taken in furtherance of “the right of petition or free speech,” Cal. Civ. Proc. Code
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`§ 425.16(b)(1) (emphasis added), the Massachusetts statute clearly limits its protections
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 12 of 27
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`exclusively to the “right of petition.” See also Bristol Asphalt, Co. v. Rochester Bituminous
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`Prod., Inc., 493 Mass. 539, 541, 227 N.E.3d 1019 (2024) (“Although these powerful procedural
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`protections were designed to target meritless suits brought to discourage individuals from
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`exercising their constitutional right of petition, the statute has been regularly invoked in attempts
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`to dismiss a wide array of other claims concerning conduct far afield of the petitioning activity
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`that the Legislature originally sought to protect. To align the statutory language and purpose, and
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`address its potential misapplication, . . . we adopted a construction of the anti-SLAPP statute that
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`would exclude its applicability to claims with a substantial basis other than or in addition to an
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`individual’s exercise of the right of petition.”) (citing Duracraft Corp. v. Holmes Prods. Corp.,
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`427 Mass. 156, 167-68, 691 N.E.2d 935 (1998)).
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`Where a party asserts under Massachusetts’ anti-SLAPP statute that claims are based on
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`the party’s exercise of its right of petition under the Constitution of the United States or of the
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`Commonwealth, the party bringing the claim must show “that: (1) the moving party’s exercise of
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`its right to petition was devoid of any reasonable factual support or any arguable basis in law and
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`(2) the moving party’s acts caused actual injury to the responding party.” See M.G.L. c. 231,
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`§ 59H. Here, “a proponent of a special motion . . . must make a threshold showing through the
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`pleadings and affidavits that the claims against it are ‘based on’ the party’s petitioning activities
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`alone and have no substantial basis other than or in addition to the petitioning activities.” See
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`Bristol Asphalt, Co., 493 Mass. At 555. If the proponent cannot make the requisite threshold
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`showing, the special motion to dismiss is denied.” See id.
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`B.
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`Choice of Law
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`When resolving disagreements about which state’s law applies, the court sitting in
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`diversity employs the substantive law of the forum state, including its choice-of-law principles.
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`12
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 13 of 27
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`See Cheng v. Neumann, 106 F.4th 19, 25 (1st Cir. 2024). Massachusetts courts resolve choice-
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`of-law questions “by assessing various choice-influencing considerations,” including those
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`outlined in the Restatement (Second) of Conflict of Laws (1971). Bushkin Assocs., Inc. v.
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`Raytheon Co., 393 Mass. 622, 668-69, 473 N.E.2d 662 (1985). “Factors under § 6 [of the
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`Restatement] that are said to be relevant to the choice of the applicable rule of law include: ‘(a)
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`the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the
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`relevant policies of other interested states and the relative interests of those states in the
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`determination of the particular issue, (d) the protection of justified expectations, (e) the basic
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`policies underlying the particular field of law, (f) certainty, predictability and uniformity of
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`result, and (g) ease in the determination and application of the law to be applied.’” Id. at 669.
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`The parties cite district court decisions taking opposing positions on the issue of which
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`state’s choice of law to apply here. Compare Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343,
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`354 (D. Mass. 2017) (applying Massachusetts Anti-SLAPP law because defendants, California
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`citizens, did not overcome the presumption that the law of plaintiff’s home state should prevail),
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`with O'Gara v. Binkley, 384 F. Supp. 3d 674, 682-83 (N.D. Tex. 2019) (“[A]pplying California’s
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`anti-SLAPP statute to a Texas defendant would impede on Texas’s interest in protecting its
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`citizens and fulfilling the statute’s purpose in a similar way that applying Texas’s defamation law
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`to a California plaintiff would infringe on California’s interests.”); Underground Sols., Inc. v.
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`Palermo, 41 F. Supp. 3d 720 (N.D. Ill. 2014) (finding that defendant’s domicile had “the clearest
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`interest in applying its anti-SLAPP law vis-à-vis one of its own citizens”).
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`The First Circuit has, however, suggested that resolution of a choice-of-law question at
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`the dismissal stage where facts relevant to that inquiry are disputed is improper. See Foisie v.
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`Worcester Polytechnic Inst., 967 F.3d 27, 42-43 (1st Cir. 2020). “[W]e emphasize that the
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 14 of 27
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`optimal timing for a choice-of-law determination is case-specific,” but where “the complaint
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`itself leaves unanswered questions about critical aspects of the pertinent facts . . . a district court
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`is well-advised to refrain from making an immediate choice-of-law determination.” Id. at 42.
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`Here, the factual record is undeveloped. While Plaintiffs allege their belief that Beter is a
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`resident of Massachusetts and Josee Beter is a citizen of Minnesota, Defendants are silent as to
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`their residences in the briefing. The factual record is also silent as to whether Beter sent the
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`allegedly defamatory emails from Massachusetts and where the recipients of the emails were
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`located. A more developed factual record will contain information about where the allegedly
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`defamatory emails were sent, where they were received and read, and who, if anyone, they were
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`forwarded to. The court will then be able to conduct a full § 6 analysis to determine which state’s
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`law applies to these claims.
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`The court considers instead whether the choice of law would result in different results
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`here and proceeds to analyze Plaintiffs’ motion to strike under both statutes.
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`C.
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`Defendants’ Petitioning Activity
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` Both state’s anti-SLAPP statutes protect petitioning activity, and Defendants point for
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`petitioning activity here to Beter’s 2012 reports to the FBI and her 2017 lawsuit. But while this
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`background is set forth in the Complaint, it is not a basis for the causes of action against Beter,
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`let alone the sole basis. Instead, Defendants’ claims against Beter are directed to her more recent
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`emails and communications. Accordingly, Beter has failed to make the initial showing under
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`either statute based on her petitioning activity.
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`Josee Beter’s claim for protection based on petitioning activity is even weaker. The
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`Complaint includes no allegations of petitioning activity by Josee Beter, and Josee Beter makes
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`no showing that she engaged in any petitioning activity.
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 15 of 27
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`In sum, to the extent that the Motion to Strike is made under Massachusetts’ Anti-SLAPP
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`statute or California’s Anti-SLAPP statute as it relates to petitioning activity, the motion fails at
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`step one of the analysis.
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`D.
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`Defendants’ Other Communications
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`As discussed above, California’s anti-SLAPP statute does afford protection to
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`constitutionally protected free speech that does not constitute petitioning activity. But moving
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`parties must still make a showing that they engaged in such activities. See Bonni v. St. Joseph
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`Health Sys., 11 Cal.5th 995, 1009, 491 P.3d 1058 (2021).
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`Defendants do not deny that they sent the emails attached to Plaintiffs’ Complaint.
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`Instead, they claim that their speech was made in a public forum or otherwise in furtherance of
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`their exercise of free speech in connection with an issue of public interest, and therefore is
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`protected. But regardless of whether the speech was made in a public forum or in connection
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`with an issue of public interest (both of which Plaintiffs dispute), even in those contexts not all
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`speech is protected by the First Amendment. Libelous statements made with malice and false
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`statements that intentionally interfere with contracts and with prospective business relations are
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`not protected. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). Accordingly, at
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`step one, Defendants needed to make a threshold showing that the alleged statements are not
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`actionable. See Baral v. Schnitt, 1 Cal.5th 376, 389, 376 P.3d 603 (2016). The Defendants have
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`failed to do.
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`Notably, Defendants have not supported their motion with Declarations stating that the
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`emails and other communications claiming that Baughman sexually assaulted Beter are true.
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`Instead, Defendants have offered only the unverified complaint in the later-filed New York
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`Case 1:23-cv-11278-IT Document 93 Filed 10/11/24 Page 16 of 27
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`action and the arguments of counsel. The court finds this showing wholly insufficient at step one
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`of the anti-SLAPP procedure.
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`Having failed to make the requisite showing, the court need not consider the step two
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`evidence submitted by Defendants. The court notes, however, that Baughman’s Declaration
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`denying that he sexually assaulted Beter is not rebutted by any evidence in the record before the
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`court.
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`The Motion to Strike, whether brought under California or Massachusetts law, is
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`DENIED.
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`IV. Defendants’ Motion to Stay Litigation
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`Defendants move to stay litigation in the instant case pending the outcome of the action
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`brought by Defendant Beter against Plaintiff Baughman in the Southern District of New York
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`(the “New York action”).1 Plaintiffs oppose.
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` Beter alleges in the New York action that Baughman sexually assaulted her in 2001.
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`Baughman alleges here that Beter’s claims that she was assaulted are false and defamatory.
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`Accordingly, there are overlapping issues in the two actions. The New York action was filed five
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`months after the present action, however, and based on the timing, appears to be a response to
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`the present action. See Beter Complaint, Ex. B to Mem. ISO Mot. to Strike [Doc. No. 34-2].
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`The First Circuit has recognized that “[o]bvious concerns arise when actions involving
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`the same parties and similar subject matter are pending in different federal district courts: wasted
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`resources because of piecemeal litigation, th