United States Court of Appeals
For the First Circuit
Nos. 25-1206, 25-1772
BEAN MAINE LOBSTER, INC; MAINE LOBSTERMEN'S ASSOCIATION; MAINE
COAST FISHERMEN'S ASSOCIATION, INC.; MAINE LOBSTER AND
PROCESSING, LLC, d/b/a Atwood Lobster, LLC; BUG CATCHER, INC.,
Plaintiffs, Appellees,
v.
MONTEREY BAY AQUARIUM FOUNDATION,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Gelpí, Rikelman, and Aframe,
Circuit Judges.
Amy Mason Saharia, with whom Russell B. Pierce, Jr., Norman,
Hanson & DeTroy, LLC, Lisa S. Blatt, Joseph M. Terry, Nicholas G. Gamse, Claire R. Cahill, Edward L. Pickup, Harold W. Hild, and
Williams & Connolly LLP were on brief, for appellant.
Megan Barbero, with whom Clifford Ruprecht, Ruprecht &
Bischoff LLP, Kevin J. Lipson, Elizabeth M. Wilson, Edward P.
Boyle, Stephanie P. Diu, Kyle H. Keraga, and Venable LLP were on
brief, for appellees.
October 9, 2026
- 2 -RIKELMAN, Circuit Judge. This appeal concerns the
so-called "group defamation rule." Under that rule, a defamatory
statement about a large group is not actionable unless the
statement or its context indicates that it is targeted at specific
members of the group. Here, multiple companies and organizations
involved in the Maine lobster industry sued the Monterey Bay
Aquarium Foundation ("the Aquarium") for defamation under Maine
law. The plaintiffs challenged the Aquarium's statements
recommending that consumers avoid eating American lobster because
lobster fishing poses a risk to the endangered North Atlantic right
whale, even though those statements did not single them out in
particular. The Aquarium moved to dismiss the case, arguing that
the group defamation rule barred the plaintiffs' claims. The
district court denied its request, concluding that the Aquarium's
statements applied equally to each member of the Maine lobster
industry. We disagree with the district court's application of
the group defamation rule and thus reverse.
I. BACKGROUND
A. Relevant Facts1
The Maine lobster industry "employs more than 5,600
lobstermen,"2 and in 2021 alone the fishery "hauled in more than
1 We take the facts from the plaintiffs' complaint.
Like the district court, we adopt the parties' use of
2
"lobstermen" to refer to all people holding commercial licenses to
- 3 -80% of the country's lobster landings." At the center of the Maine
lobster industry is the Gulf of Maine, which shares a lobster stock
with the adjoining Georges Bank region of the Northwest Atlantic
Ocean. That is, the Maine lobster industry "targets" lobster stock
in that region. Lobster fishing in the coastal waters of Maine
"is subject to strict regulations that ensure resource and
environmental sustainability."
The five plaintiffs in this case play important roles in
the Maine lobster industry. They are (1) Bean Maine Lobster, Inc.,
a company that "markets and sells high-quality mid-coast
Maine-caught lobster and lobster foods"; (2) the Maine
Lobstermen's Association, Inc., a nonprofit "that represents
roughly 1,200 of Maine's 5,600 lobstermen"; (3) the Maine Coast
Fishermen's Association, Inc., a nonprofit "that works to enhance
the sustainability of Maine's fisheries" and "advocat[es] for the
needs of community-based fishermen"; (4) Maine Lobster and
Processing, LLC, "a third-generation Maine lobster company
and . . . one of the leading lobster producers in the United
States"; and (5) Bug Catcher, Inc., "a lobster fishing company" in
Maine run by "a sixth-generation lobsterman."
harvest lobster. Bean Me. Lobster, Inc. v. Monterey Bay Aquarium
Found., No. 23-cv-129, 2025 WL 416436, at *3 n.1 (D. Me. Feb. 6,
2025).
- 4 -The Aquarium is a nonprofit conservation and education
organization based in California. It operates a program called
Seafood Watch, which assigns ratings to different species of
seafood, including lobster, "based on environmental impact and
sustainability." A "green" rating signifies that the seafood is
the "best choice." A "yellow" rating indicates that the seafood
is a "good alternative." A "red" rating, by contrast, means that
consumers should "avoid" the seafood because it "comes from sources
that don't align with [Seafood Watch's] guiding principles." In
assigning ratings, the Aquarium considers the effects of seafood
consumption and fishing practices on endangered species. Through
its Seafood Watch program, the Aquarium aims to influence the
decisions of seafood consumers, businesses, and regulators.
For many years, the Aquarium has raised concerns about
the impact of fishing on the North Atlantic right whale, which is
found primarily in the waters of the North Atlantic Ocean. The
North Atlantic right whale is listed as an endangered species under
the Endangered Species Act and is protected under the Marine Mammal
Protection Act. According to the Aquarium, one threat to the North
Atlantic right whale is the risk of entanglement in fishing gear,
including the buoy lines lobstermen use to mark the placement of
their lobster traps.
"[A] collaboration of fisheries, agencies, scientists,
lobstermen and environmental groups" developed the Atlantic Large
- 5 -Whale Take Reduction Plan ("the Take Reduction Plan") in 1997.
That Plan required implementation of "innovative fishing practices
and gear deployment strategies designed to protect right whales."
In the years since, those efforts have been "continuously updated
and improved." Adjustments to the Take Reduction Plan have focused
on reducing the risk of whale entanglement in commercial fishing
gear, including lobster trap buoy lines. From 1997 to 2011, the
North Atlantic right whale population increased from 295 whales to
a high of 481.
In 2014, the Aquarium's Seafood Watch program assigned
a yellow rating to Maine lobster, recommending that consumers and
businesses "[b]uy, but be aware there are concerns with how
[lobsters are] caught, farmed or managed." A few years later, in
2017, the National Marine Fisheries Service detected an "unusual
rate of mortalities" that reduced the North Atlantic right whale
population to only about 350 whales.
In the last decade, the Maine lobster industry has
implemented "even more changes to its fishing practices to protect
right whales." For example, modifications to the Take Reduction
Plan in 2021 "decreased the amount of rope in the water, created
more exacting requirements for weak links, weak rope and
break-aways to weaken vertical fishing lines, and closed nearly
1,000 square miles of fishing grounds for an entire season each
year."
- 6 -Nevertheless, in September 2022, the Aquarium issued a
press release ("the Press Release"), announcing that it had
"assign[ed] red ratings to certain Canadian and U.S. fisheries" in
light of the "dire risk to the endangered North Atlantic right
whale" posed by the fisheries. The Press Release stated that the
red ratings were based on "significant risks of entanglement in
pot, trap, and gillnet fisheries to the endangered North Atlantic
right whale and the lack of timely, effective management necessary
to mitigate entanglement risks and promote recovery of the
species."
The day after announcing that it was assigning these new
red ratings, the Aquarium's Seafood Watch program published the
73-page report at issue in this case ("the Report"), detailing its
recommendations regarding the fishing and consumption of American
lobster. In the Report, the Aquarium downgraded the rating of
American lobster from yellow to red. It recommended that consumers
"[a]void American lobster caught by trap from Georges Bank and the
Gulf of Maine stocks due to risks to the critically endangered
North Atlantic right whale and insufficient measures for reducing
these risks." It emphasized that, "[d]ue to a lack of information,
it is often not possible to assign entanglements to a specific
fishery." Thus, the Aquarium concluded that "[u]ntil there is
more specific information available regarding which fisheries are
responsible for the unattributed entanglements[,] . . . all
- 7 -relevant fisheries that may overlap with [the North Atlantic right
whale] pose risks." Further, the Aquarium commented on the
ineffectiveness of management efforts and the Take Reduction Plan,
asserting that they "have not been successful at reducing serious
injury and mortality to the North Atlantic right whale."
In the Report, the Aquarium did not identify by name any
of the plaintiffs or any other individual, association, or company
involved in the Maine lobster industry. Still, the plaintiffs
allege that they lost substantial business following the
publication of the Report. For instance, the owner of Bug Catcher,
Inc. estimates that he has lost about 20% of his business since
the Aquarium issued its "red" rating. And in one instance, a major
customer of Maine Lobster and Processing, LLC specifically cited
the "red" rating when it announced that it would no longer be
purchasing lobster from the Gulf of Maine.
B. Procedural History
The plaintiffs eventually sued the Aquarium for
defamation based on its statements about the Maine lobster
industry, including statements made in the Press Release and the
Report. They filed their lawsuit in March 2023 in the U.S.
District Court for the District of Maine.
In their complaint, the plaintiffs allege that the
Aquarium "knowingly and intentionally published false and
injurious statements disparaging [their] products and business,
- 8 -including, among other things, that commercial lobster fishing
practices in the Gulf of Maine cause death and serious injury to
North Atlantic right whales." The plaintiffs challenge the
following statements by the Aquarium ("the Statements")3:
(a) "At this time, each fishery using this
gear is putting this protected species [i.e.,
the right whale] at risk of extinction."
(b) "No one wants to know their appetite for
seafood is driving a species to extinction."
(c) "Seafood rated Avoid comes from sources
that don't align with our guiding principles.
The seafood is caught or farmed in ways that
[have a high risk of causing] harm [to
wildlife] or the environment. There's a
critical conservation concern or many issues
need substantial improvement."
(d) "[M]anagement measures and the Atlantic
Large Whale Take Reduction Plan have not been
successful at reducing serious injury and
mortality to the North Atlantic right whale."
(e) "Based on the available information and
the significant risks to [the North Atlantic
right whale], the American lobster fishery
cannot be considered sustainable."
(f) "The updated assessments highlight
significant risks of entanglement in pot,
trap, and gillnet fisheries to the endangered
North Atlantic right whale and the lack of
timely, effective management necessary to
mitigate entanglement risks and promote
recovery of the species."
(g) "Seafood Watch reviewed all available
scientific data, including the latest stock
assessments as well as state, federal, and
3 We indicate with highlighting where plaintiffs only challenge a portion of a sentence as defamatory.
- 9 -provincial management measures." And "[t]he
14 assessments released today are part of
Seafood Watch's rigorous, transparent,
science-based process to evaluate the current
environmental performance of a fishery."4
(h) "According to Seafood Watch standards,
when fisheries pose a high risk of harm to
marine life or the environment and appropriate
management measures are not in place, they are
assigned a red rating."
(i) "Avoid/Red: Take a pass on [seafood
receiving this rating] for now; they're caught
or farmed in ways that harm other marine life
or the environment."
Some of these statements appear in the Press Release.
Others appear in the Report. Still others do not appear in either
document.5
Two months after the plaintiffs sued, the Aquarium filed
a motion to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. In its motion,
the Aquarium argued that the Statements were (1) about the Gulf of
Maine/Georges Bank area lobster industry at large, not "of and
concerning" the plaintiffs specifically, and (2) non-actionable
scientific opinion, rather than defamatory assertions of fact. In
4 These statements do not appear together in the Press Release.
5 We assume that the Aquarium made these statements elsewhere
because we are bound to accept as true all well-pleaded factual
allegations in the plaintiffs' complaint in analyzing a denial of a motion to dismiss. See Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009).
- 10 -the alternative, the Aquarium sought dismissal under Maine's
anti-SLAPP statute,6 arguing that the Statements constituted
protected petitioning activity.7
The district court denied the Aquarium's motion to
dismiss. See Bean Me. Lobster, Inc. v. Monterey Bay Aquarium
Found., No. 23-cv-129, 2025 WL 416436, at *59 (D. Me. Feb. 6,
2025). The court first concluded that the plaintiffs had "carried
their burden of defeating [the Aquarium's] motion" under Maine's
anti-SLAPP statute. Id. at *43. It then determined that the
plaintiffs had stated a claim for defamation by adequately alleging
that the Aquarium's statements were (1) "reasonably understood as
6 SLAPP stands for Strategic Lawsuit Against Public
Participation. Maine's anti-SLAPP statute at the time, 14 M.R.S.
§ 556 (repealed 2025), was "designed to guard against meritless
lawsuits brought with the intention of chilling or deterring the
free exercise of the defendant's First Amendment right to petition the government." Schelling v. Lindell, 942 A.2d 1226, 1229 (Me.
2008). Under the statute, defendants could file a "special motion to dismiss" in order to "minimize the litigation costs associated with the defense of such meritless suits." 14 M.R.S. § 556. The
Maine legislature has since replaced that statute with a more
comprehensive anti-SLAPP statute. See 2023 Me. Laws 1404.
7The Aquarium also contended that the plaintiffs had not
adequately alleged other elements of a defamation claim.
Separately, the Aquarium sought dismissal for lack of personal
jurisdiction or, in the alternative, transfer of venue. The
district court found it had personal jurisdiction and denied the
motion to transfer; it further ruled that the plaintiffs had
sufficiently alleged that the Aquarium acted with actual malice
when publishing the challenged statements. The Aquarium does not
appeal these rulings.
- 11 -'of and concerning' them" and (2) actionable assertions of fact.
Id. at *49; see id. at *53.
In its ruling, the district court acknowledged the group
defamation rule, which typically precludes plaintiffs from
establishing that a defamatory statement was "of and concerning"
them when the statement in question was directed at a group as a
whole. See id. at *45. But the court concluded that the
plaintiffs' claims fell under an exception to the rule, set out in
the Second Restatement of Torts, which applies when "the
circumstances of publication reasonably give rise to the
conclusion that there is particular reference to [a] member [of
the group]." Id. at *45-47 (quoting Restatement (Second) of Torts
§ 564A(b) (A.L.I. 1977)).
Specifically, the district court determined that the
"letter and spirit of the group defamation rule" did not apply for
four reasons: First, "the industry-wide nature of the Statements
necessarily implicated each and every member of the Plaintiff
group." Id. at *47-48. Second, the Statements were not "the type
of hyperbolic statements that undergird the group defamation rule"
but instead "purported to be based upon scientific data." Id. at
*48. Third, the Statements "included a call to action" directing
consumers to avoid purchasing American lobster. Id. Fourth, and
finally, certain of the plaintiffs' customers had specifically
- 12 -referenced the Report as influencing their decision to stop
purchasing the plaintiffs' lobster. Id.
The Aquarium timely appealed the denial of its
anti-SLAPP motion under the collateral order doctrine.
Separately, it moved for certification of an interlocutory appeal
under 28 U.S.C. § 1292(b) to enable review of the district court's
order denying dismissal of the plaintiffs' defamation claim,
including its application of the group defamation rule. The
district court granted the motion for interlocutory appeal, and we
in turn granted the Aquarium's petition and consolidated the two
appeals.
II. STANDARD OF REVIEW
We review de novo a district court's denial of a motion
to dismiss under Rule 12(b)(6). See First Med. Health Plan, Inc.
v. Vega-Ramos, 479 F.3d 46, 51 (1st Cir. 2007). In doing so, "[w]e
accept as true the complaint's well-pleaded factual allegations,
and draw all reasonable inferences in favor of the" plaintiffs as
the non-moving parties. McKee v. Cosby, 874 F.3d 54, 59 (1st Cir.
2017).
III. DISCUSSION
The Aquarium contests multiple aspects of the district
court's ruling denying its motion to dismiss. Because we agree
with the Aquarium that the group defamation rule bars the
plaintiffs' claims, we do not reach its other arguments.
- 13 -For starters, "[a]s a federal court sitting in diversity
jurisdiction, we look to [Maine] law for the substantive rules of
decision governing" the plaintiffs' state-law defamation claim.8
Blakesley v. Marcus, 158 F.4th 90, 95 (1st Cir. 2025) (citation
modified) (quoting Smith v. Prudential Ins. Co. of Am., 88 F.4th
40, 47 (1st Cir. 2023)). As the district court observed, however,
there is limited precedent from Maine courts on the scope of the
exceptions to the group defamation rule. Bean Me. Lobster, Inc.,
2025 WL 416436, at *46. Thus, we must "endeavor to predict how
[Maine's] highest court would rule on" the legal questions before
us. Blakesley, 158 F.4th at 95 (citation modified) (quoting
Lawrence Gen. Hosp. v. Cont'l Cas. Co., 90 F.4th 593, 598 (1st
Cir. 2024)). And as "it is quintessentially the province of state
courts to extend state law," we should "exercise considerable
caution" before adopting a novel application of Maine law. Id. at
100 (citation modified) (first quoting Markham v. Fay, 74 F.3d
1347, 1356 (1st Cir. 1996); and then quoting Doyle v. Hasbro, Inc.,
103 F.3d 186, 192 (1st Cir. 1996)).
With that in mind, we trace the history and rationale of
the group defamation rule and the contours of its exceptions. We
then apply those principles to the facts set out in the complaint
and conclude that the Supreme Judicial Court of Maine ("the Law
8 The district court had jurisdiction to consider the
plaintiffs' state-law claims under 28 U.S.C. § 1332(a).
- 14 -Court") would hold that the group defamation rule bars the
plaintiffs' claims.
A. The Group Defamation Rule and Its Exceptions
To maintain an action for defamation under Maine law, a
plaintiff must establish that the alleged defamatory statement was
"of and concerning" them. See Hudson v. Guy Gannett Broad. Co.,
521 A.2d 714, 716 (Me. 1987). When a statement defames a large
group of which the plaintiff is a member, courts have generally
concluded that the plaintiff cannot satisfy the "of and concerning"
element by virtue of the common-law principle known as the group
defamation rule. Under this rule, "[d]efamation of a large group
gives rise to no civil action on the part of an individual member
of the group unless he can show special application of the
defamatory matter to himself." Arcand v. Evening Call Publ'g Co.,
567 F.2d 1163, 1164 (1st Cir. 1977) (quoting Joseph Tanenhaus,
Group Libel, 35 Cornell L.Q. 261, 263 (1950)).
The group defamation rule predates our Constitution.
See R v. Alme & Nott (1699) 91 Eng. Rep. 790; 3 Salk. 224 (KB)
(per curiam). And since the 1800s, courts have justified the rule,
in part, based on the concern that affording every member of a
large group a cause of action would threaten to stifle "free
discussion" beneath an avalanche of "embittered and boundless
- 15 -litigation."9 Ryckman v. Delavan, 25 Wend. 186, 199 (N.Y. 1840).
As the United States Court of Appeals for the District of Columbia
described in an early case, "courts have chosen not to limit freedom
of public discussion except to prevent harm occasioned by
defamatory statements reasonably susceptible of special
application to a given individual." Serv. Parking Corp. v. Wash.
Times Co., 92 F.2d 502, 505-06 (D.C. Cir. 1937); see also Dan B.
Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 531
(2d ed. 2011) (explaining the rationales for the group defamation
rule).
The modern understanding of the group defamation rule is
set out in the Second Restatement of Torts. Because the Law Court
has adopted the Second Restatement's approach to other aspects of
defamation law, we predict (and the plaintiffs agree) that the Law
Court would adopt its approach to the group defamation rule as
well. See Hudson, 521 A.2d at 717 (adopting the "'of and
concerning' requirement" set out in the Second Restatement).
Specifically, § 564A of the Second Restatement states:
One who publishes defamatory matter concerning
a group or class of persons is subject to
liability to an individual member of it if,
but only if,
(a) the group or class is so small that
the matter can reasonably be understood
to refer to the member, or
9 This public policy rationale is distinct from the
constitutional question of whether such "free discussion" is
protected under the First Amendment.
- 16 -(b) the circumstances of publication
reasonably give rise to the conclusion
that there is particular reference to the
member.
Restatement (Second) of Torts § 564A (emphasis added).
The group defamation rule, as articulated in the Second
Restatement, thus consists of a general principle -- "no action
lies for the publication of defamatory words concerning a large
group or class of persons" -- with two exceptions. Id. cmt. a.
The first is the "small-group exception," which typically applies
to groups of "25 or fewer" people. Id. cmt. b. Because the
Statements here described the activities of some 5,600 lobstermen
in Maine alone, the district court found that the small-group
exception did not apply, and the plaintiffs have not argued
otherwise on appeal. Bean Me. Lobster, Inc., 2025 WL 416436, at
*47. Still, we discuss the principles underlying the small-group
exception because they are important to our overall analysis.
The theory behind the small-group exception is
straightforward. As the Second Restatement explains it, when a
"sufficiently small" group is defamed, "the words may reasonably
be understood to have personal reference and application to any
member of" the group. Restatement (Second) of Torts § 564A cmt. b.
- 17 -The other exception is the "particular-reference
exception."10 The linchpin of this exception is the requirement
of a particular reference to the plaintiff -- "particular" in the
sense of "distinctive among other examples or cases of the same
general category." Particular, Merriam-Webster's Collegiate
Dictionary (10th ed. 1993). For many years, courts have concluded
that a defamatory statement that applies equally to every member
of a large group is not particular to the plaintiff. See Serv.
Parking Corp., 92 F.2d at 506 (claim failed under group defamation
rule for absence of evidence that statement was "solely or
especially" about plaintiff); Comes v. Cruce, 107 S.W. 185, 186
(Ark. 1908) (statement not actionable for lack of evidence that
"the business of any individual, as distinct from a class, was
specified as being illegal" (emphasis added)).
Two more recent cases illustrate the particularreference exception in action. In JB & Associates, Inc. v.
Nebraska Cancer Coalition, 932 N.W.2d 71 (Neb. 2019), a group of
tanning salons (representing nearly three-quarters of all such
salons in the Omaha and Lincoln markets) sued for defamation after
a Nebraska anti-cancer advocacy group launched a website to warn
about the dangers of tanning beds. See id. at 75-77. The allegedly
The district court referred to this as the "circumstances10
of-publication" exception. Bean Me. Lobster, Inc., 2025 WL 416436, at *45. We use the "particular-reference" formulation to emphasize what we view as the central inquiry required by the exception.
- 18 -defamatory statements primarily consisted of assertions about the
tanning industry and the dangers of tanning, including statements
that "[t]anning facilities do not require a license to operate in
Nebraska" and that "[j]ust one indoor tanning session increases
your risk of melanoma by 20%." Id. To support their claims, the
tanning salons offered evidence that customers who had visited the
advocacy group's website had asked salon staff about the safety of
indoor tanning. Id. at 77.
Although the challenged statements in JB & Associates
categorically described the operations of the entire Nebraska
tanning industry -- and thus necessarily described the plaintiffs'
facilities -- the Nebraska Supreme Court concluded that the
particular-reference exception was not met. See id. at 79-80
(applying Second Restatement). The court noted that nothing in
the statements or context "implied that the statements were
targeted at" the plaintiff salons rather than indoor tanning more
broadly, and it discounted the customer interactions because no
customers had indicated that "they believed the statements were
about [plaintiffs' salons] specifically." Id. at 79 (emphasis
added).
By contrast, in Conformis, Inc. v. Aetna, Inc., 58 F.4th
517 (1st Cir. 2023), we applied the Second Restatement under
Massachusetts law and concluded that the particular-reference
exception was triggered such that the plaintiff's product
- 19 -disparagement claim could proceed. See id. at 528-29, 530
(explaining that a disparagement claim has many of the same
elements as a defamation claim and applying the "of and concerning"
requirement from the defamation context). In that case, the
manufacturer of a total-knee-replacement (TKR) device sued Aetna
for product disparagement based on an updated policy document Aetna
had published. See id. at 525-28. The document set out Aetna's
decision to deny coverage for all customized TKR devices on the
basis that they were "experimental and investigational because
[their] effectiveness has not been established." Id. at 526. We
noted that although the statement did not mention the plaintiff
manufacturer by name, the context left "little doubt" that the
insurer had "intended the statement to refer to the" manufacturer's
TKR device. Id. at 529. Further, third parties had understood
the policy statement to refer to the manufacturer's device:
"[N]umerous orthopedic surgeons" informed the plaintiff "they
would no longer prescribe [the plaintiff's TKR] system because of
concerns that it would not be covered" by Aetna. Id.
But the fact that Aetna's statement applied to the
plaintiff's device just because it was a TKR device, we explained,
did not satisfy the particular-reference exception: Because the
policy statement was directed at a large group (the wider group of
customized TKR devices), "more [was] needed." Id. at 529-30. And
in Conformis, there was more. In the "background" section of the
- 20 -policy statement, Aetna had dedicated an entire subsection to the
plaintiff's specific product -- the only TKR device "singled out"
in that way. Id. at 530. We held that this specific reference to
the plaintiff's product -- and not any other product -- could lead
a reasonable reader to conclude "that the Policy statement made
particular reference to" the plaintiff. Id.
JB & Associates and Conformis are just two illustrations
of a fundamental principle: The fact that a statement may apply to
every member of a large group is not enough to trigger the
particular-reference exception. As one court put it, "evidence
that others 'understood'" a statement directed at a large group to
refer to a plaintiff "based solely upon [the] plaintiff's
membership in the referenced group will not satisfy the 'of and
concerning' requirement" under the group defamation rule. Dean v.
Dearing, 561 S.E.2d 686, 689 (Va. 2002) (so holding after
concluding on First Amendment grounds that the plaintiffs, as
government officials, could not invoke the small-group exception,
see id. at 688-89); see also, e.g., Gintert v. Howard Publ'ns,
Inc., 565 F. Supp. 829, 831-33 (N.D. Ind. 1983) (applying the
Second Restatement test and holding that members of a group of 165
property owners could not sue for defamation over news articles
about environmental contamination on their property given "the
- 21 -absence of anything in the articles" identifying any of the
plaintiffs as "targets" of the reporting).11
The plaintiffs point to Ball v. Taylor, but that decision
does not flout this critical principle. In Ball, the U.S. Court
of Appeals for the Eighth Circuit allowed about 100 employees to
sue over a statement that they had committed disability fraud (to
our knowledge, the largest group defamation claim ever permitted),
but the statement was accompanied by a document that specifically
identified each individual employee by name and address. See 416
F.3d 915, 916-18 (8th Cir. 2005) (per curiam).12 The plaintiffs
11 See also Dobbs et al., supra, § 531 ("[I]ndividual members
of the [large] group are likewise denied relief unless . . . particular individuals can be reasonably understood
as the individual targets of the defamation." (emphasis added));
8A Alfred W. Gans et al., American Law of Torts § 29:49 (Feb. 2026 update) ("[U]nless a particular application can be shown to
oneself, no member of a large group or class, by virtue of
defamatory words assertedly spoken concerning the group or class, can maintain an action for libel or slander." (second emphasis
added)). But see 1 Rodney A. Smolla, Law of Defamation § 4:70
(May 2026 update) (asserting that "when all members of the class
are defamed . . . group size no longer matters" and citing Bean
Me. Lobster, 2025 WL 416436, as a "powerful[] demonstrat[ion]" of such a rule). We note that Professor Smolla's analysis relies on
Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla. 1962),
and Florio v. Gallaudet University, 119 F.4th 67 (D.C. Cir. 2024). As we explain in Section III.B, infra, Fawcett does not follow the Second Restatement approach. And Florio held (in dicta, because
the statements were protected opinion) only that the group
defamation rule did not bar the defamation claims of particular
fraternity members depicted in a photograph published with the
defamatory statements about that fraternity. See 119 F.4th at 73-77.
12Every other case cited by the plaintiffs in which a court
concluded that the particular-reference exception set out in the
- 22 -have not pointed to, and we have not found, any case applying the
rule set out in the Second Restatement that ignores this principle.
Finally, we are mindful that -- as the Aquarium and
amici point out -- a broad reading of the "of and concerning"
requirement may raise constitutional concerns to the extent that
it deters speech on public matters. See, e.g., Emerito Estrada
Rivera-Isuzu de P.R., Inc. v. Consumers Union of U.S., Inc., 233
F.3d 24, 28 (1st Cir. 2000). "[S]peech on public issues occupies
the 'highest rung of the h[ie]rarchy of First Amendment values.'"
Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).
The plaintiffs do not dispute that speech critical of
industry practices frequently raises issues of public concern.
Second Restatement was met aligns with this principle. For example, in Church of Scientology International v. Time Warner,
Inc., the court applied the Second Restatement and explained that the particular-reference exception required it to decide:
(1) whether a reference to "Scientology" in an allegedly
defamatory statement was a "direct[] or implied[]" reference to
the specific "Mother Church" entity at the top of the church
hierarchy; (2) if so, whether that reference to the Mother Church "arose solely from its status as one of the numerous entities that constitute the Church of Scientology, thus implicating the [group defamation rule]"; and (3) if so, "whether [the Mother Church] was referred to in any particular way so as to" meet the exception.
806 F. Supp. 1157, 1159, 1160 (S.D.N.Y. 1992) (emphasis added),
aff'd sub nom. Church of Scientology Int'l v. Behar, 238 F.3d 168 (2d Cir. 2001). The court concluded that such a particular
reference existed because, among other things, the allegedly
defamatory article included a photo of the Mother Church
headquarters and referred to "the Los Angeles-based church" -- the city where the Mother Church headquarters was located. Id. at 1161, 1163 (citation modified).
- 23 -And speech critical of industry practices is frequently met with
defamation suits. See, e.g., Tex. Beef Grp. v. Winfrey, 11 F.
Supp. 2d 858, 863-64 (N.D. Tex. 1998), aff'd, 201 F.3d 680 (5th
Cir. 2000) (per curiam) (speech critical of beef industry);
Schuster v. U.S. News & World Rep., Inc., 602 F.2d 850, 851 (8th
Cir. 1979) (speech critical of vitamin supplement industry). Thus,
although we do not decide this appeal on constitutional grounds,
First Amendment principles counsel against an expansive reading of
the particular-reference exception.
B. The Aquarium's Statements Are Not Actionable Under the Group
Defamation Rule
The parties agree that the group defamation rule applies
here such that the Statements are not actionable unless the
particular-reference exception is satisfied. The parties also
agree that, as the district court pointed out, each Statement is
directed at the American lobster fishery writ large, which covers
more than 5,600 lobstermen in Maine alone. See Bean Me. Lobster,
Inc., 2025 WL 416436, at *47. And the plaintiffs do not allege
that the Statements contain an explicit reference to any of them
individually.
The plaintiffs insist, however, that the group
defamation rule should not bar their claims. They rest on one
main point in making this argument: that the Statements' factual
nature, including the claim that the type of fishing gear used by
- 24 -the plaintiffs endangers the North Atlantic right whale, means
that the Statements necessarily apply to every member of the
fishery.13 Thus, they contend, the Statements are materially
different from the hyperbole usually lobbed at entire industries
that are subject to critique, and for that reason, the district
court was correct to permit their claims to proceed.14
To be sure, many cases barring claims against large
groups based on the group defamation rule involve hyperbolic
statements. See, e.g., Loeb v. Globe Newspaper Co., 489 F. Supp.
481, 483 (D. Mass. 1980) (statement that editorial staff and
readers of newspaper were "paranoids"); see also Restatement
(Second) of Torts § 564A cmt. a (giving as examples the Psalmist's
declaration that "[a]ll men are liars" and a hypothetical statement
13 We acknowledge the plaintiffs' assertion in their brief
that they "do not base their defamation claim merely on their
membership in an industry." At oral argument, however, the only
other evidence that they cited in support of their contention that the particular-reference exception applies was their allegation
that some of the plaintiffs' customers had understood the red
rating to refer to the plaintiffs. But they also argued that if
a customer could have concluded that the statement referred to a
member of the group, that member would have a claim. And the only basis put forward by the plaintiffs for a customer to reach that
conclusion is that the plaintiff is members of the industry.
14 The district court cited these same rationales in
determining that the "letter and spirit of the group defamation
rule" were "inapposite." Bean Me. Lobster, Inc., 2025 WL 416436,
at *47-48 (noting that "the industry-wide nature of the Statements necessarily implicated each and every member of the Plaintiff
group" and that the Statements "purported to be based upon
scientific data" rather than constituting "the type of hyperbolic statements that undergird the group defamation rule").
- 25 -that "[a]ll lawyers are shysters"). But not all such cases do.15
See, e.g., JB & Assocs., 932 N.W.2d at 75-77, 79-80 (statements
about the statistical dangers of tanning beds); Noral v. Hearst
Publ'ns, Inc., 104 P.2d 860, 861-62 (Cal. Dist. Ct. App. 1940)
(statement that union officials were diverting dues to fund
communist propaganda); Sumner v. Buel, 12 Johns. 475, 475 (N.Y.
Sup. Ct. 1815) (statement that officers of three militia companies
had taken certain steps to discourage those under their command
from mustering when called to service and lied about it to a
court-martial); Conformis, 58 F.4th at 528-30 (statements about
the effectiveness and safety of a medical device).
Nor are we convinced that the Statements in fact
necessarily apply to each plaintiff. Certainly, some of the
plaintiffs are associations of lobstermen or are lobstermen
themselves; in other words, the individuals and entities directly
using the fishing gear targeted by the Statements. But as the
Aquarium notes, others -- including lead plaintiff Bean Maine
15 Further, as the Aquarium points out, the group-defamation
rule arguably would be superfluous if it applied only to hyperbole: Hyperbolic statements are already non-actionable. See, e.g., Haworth v. Feigon, 623 A.2d 150, 156 n.3 (Me. 1993) (statements
that are "clear hyperbole . . . are as a matter of law not
actionable" (citing Milkovich v. Lorain J. Co., 497 U.S. 1, 20
(1990)); see also Nat Stern, The Certainty Principle as
Justification for the Group Defamation Rule, 40 Ariz. St. L.J.
951, 991-92 (2008) (reasoning that dismissal under the group
defamation rule "may operate as a substitute for the fatal absence of a provably false factual assertion" in cases involving
hyperbole).
- 26 -Lobster -- allege they are only involved in downstream activities
such as "market[ing] and sell[ing]" of lobster.
Regardless, the plaintiffs have not cited, and we have
been unable to find, any case applying the particular-reference
exception that allowed a claim against a large group to proceed on
the theory that the challenged statements arguably applied to each
member of the large group. Instead, that theory of liability is
permitted by the Second Restatement as to small groups. See
Arcand, 567 F.2d at 1164 (rule permits suit "if a defamatory
statement applies to all members of a small group"). But it is
not permitted as to large groups, which must rely on the
particular-reference exception. Restatement (Second) of Torts
§ 564A; see, e.g., JB & Assocs., 932 N.W.2d at 78-80 (statements
about the safety of tanning beds that arguably applied to each and
every tanning salon using those beds was insufficient absent a
particular reference to plaintiffs' salons); Ky. Fried Chicken of
Bowling Green, Inc. v. Sanders, 563 S.W.2d 8, 8-9 (Ky. 1978) (per
curiam) (statements about the quality and nutritional value of KFC
menu items that arguably applied to each and every franchisee
serving those foods was insufficient absent a particular reference
to plaintiff's restaurant). In essence, then, the plaintiffs ask
us to expand the rationale of the small-group exception to cover
groups of any size, so long as the statement encompasses all
members of the group.
- 27 -We are not persuaded by the plaintiffs' arguments. The
plaintiffs rely on Fawcett Publications, Inc. v. Morris, 377 P.2d
42 (Okla. 1962) -- a case that predates the Second
Restatement -- and New York and Utah cases that follow its
approach.16 See, e.g., Brady v. Ottaway Newspapers, Inc., 84 A.D.2d
226 (N.Y. App. Div. 1981); Elias v. Rolling Stone LLC, 872 F.3d 97
(2d Cir. 2017); Pratt v. Nelson, 164 P.3d 366 (Utah 2007). In
Fawcett, the Supreme Court of Oklahoma adopted a multi-factor test
for group defamation claims, weighing factors such as the group's
size, "the intensity of the suspicion cast upon the plaintiff,"
and the prominence of the plaintiff within the group. See 377
P.2d at 51-52 (quoting Note, Liability for Defamation of a Group,
34 Colum. L. Rev. 1322, 1324-25 (1934)). But that is not the
Second Restatement test, and so we decline to hold that the Law
Court would join the small minority of states that follow the
multi-factor approach. See, e.g., Dobbs et al., supra, § 531
(distinguishing the Fawcett test from the Second Restatement
test); Nat Stern, The Certainty Principle as Justification for the
Group Defamation Rule, 40 Ariz. St. L.J. 951, 966-67 (2008)
16 The plaintiffs also quote the statement in Alexis v.
District of Columbia that there is no "'bright line' above which
a defamed group is 'too big.'" 77 F. Supp. 2d 35, 41 (D.D.C.
1999). But they neglect to quote the following line of the
opinion, which states that members of a group "generally are not
permitted to sue for group defamation if the group has more than
25 members [and] will almost invariably not be permitted to sue if the group has more than 100 members." Id.
- 28 -("Oklahoma and New York have remained lonely enclaves of official
embrace of the [Fawcett] test."); see also Pratt, 164 P.3d at 383
n.114 (adopting Fawcett in Utah).
Conformis and JB & Associates help to illustrate why the
plaintiffs' claims must fail under the Second Restatement test.
Although the Aquarium does not dispute that it "intended the
statement[s] to refer to the" plaintiffs insofar as they fish in
the American lobster fishery, and the complaint alleges facts
suggesting that third parties understood the Statements to refer
to the plaintiffs, here -- as in Conformis -- "more is needed."
58 F.4th at 529. And unlike in Conformis, there is no reference
to the plaintiffs in particular -- nothing like the specific,
exclusive identification of the manufacturer's TKR device that we
concluded provided the "more" in that case. Id. at 529-30.
The facts in JB & Associates, on the other hand, are
practically indistinguishable from those underlying the
plaintiffs' claims. There, the defamatory statements regarding
the safety of tanning beds surely implicated each plaintiff as an
operator of a tanning salon just as much as statements about the
dangers of particular fishing gear arguably implicate every
lobsterman using that gear. See 932 N.W.2d at 75-77, 79-80. And
there, as here, customers specifically referenced the statements
in communications with the plaintiffs. Id. at 77, 79. But because
there was nothing "more" to suggest that the statements were
- 29 -particular to the tanning salon operators in JB &
Associates -- beyond their mere membership in the group allegedly
defamed -- the court concluded that the exception did not apply.
See 932 N.W.2d at 79-80. The same is true in this case.
Finally, we are not convinced that the Law Court would
endorse the other rationales for applying the particular-reference
exception cited by the district court. See Bean Me. Lobster, Inc.,
2025 WL 416436, at *47-49. The court emphasized that "the
Statements were not merely informational but included a call to
action." Id. at *48. But we are not aware of any precedent
suggesting that the advocacy-based nature of a statement may take
it beyond the group defamation rule. And we hesitate to conclude
that the Law Court would impose such a limitation when, as amici
highlight, calls to action -- including calls to boycott products
and industries -- are protected under the First Amendment. See
Claiborne Hardware, 458 U.S. at 909 (calls to join boycott "involve
[protected] speech in its most direct form"); Thomas v. Collins,
323 U.S. 516, 537 (1945) (First Amendment protects "opportunity to
persuade to action").
The district court also concluded that the lost business
suffered by the plaintiffs, and in particular the allegation that
customers had specifically cited the Seafood Watch rating,
sufficed to establish that the statements had "special
application" to the plaintiffs. Bean Me. Lobster, Inc., 2025
- 30 -WL 416436, at *48-49 (quoting Sullivan v. Chester Water Auth.,
No. 22-cv-147, 2022 WL 2901068 at *13 (D. Me. July 22, 2022)). We
recognize, as the district court did, the significance of the
lobster industry to Maine's economy and culture. And we accept
(as we must on review of a motion to dismiss) that Seafood Watch's
red rating has caused substantial economic harm to the plaintiffs.
Id. at *34, *48; see Maldonado v. Fontanes, 568 F.3d 263, 266 (1st
Cir. 2009).
But the new insurance policy in Conformis had "profound
financial consequences" for the TKR manufacturer as well;
"[s]till," we said, "more is needed" to meet the particularreference exception. 58 F.4th at 526-27, 529 (noting that some
doctors stopped ordering the plaintiff's TKR device even for
patients on other insurance plans). And the fact that customers
cited the Seafood Watch rating as a reason for ceasing business
does not supply the required evidence that the customers "believed
the statements were about [the plaintiffs] specifically" and not
"aimed at [the American lobster fishery] in general." See JB &
Assocs., 932 N.W.2d at 79. We therefore do not view this evidence
as sufficient to demonstrate that the Statements made particular
reference to the plaintiffs.
Ultimately, we conclude that the Law Court would not
construe the Second Restatement's particular-reference exception
to permit the plaintiffs' claims here, because doing so would go
- 31 -against the great weight of authority. The courts that have
accepted versions of the arguments offered by the plaintiffs apply
a different test from the one set out in the Second Restatement
and represent a minority view. Thus, we hold that the plaintiffs
have failed to state a claim for defamation under Maine law.
IV. CONCLUSION
For all these reasons, we reverse the district court's
denial of the Aquarium's motion to dismiss and remand with
instructions to dismiss the complaint.
- 32 -