I’ve been SLAPPed, now what?
“SLAPP” stands for a Strategic Lawsuit Against Public Participation. Such lawsuits traditionally entailed claims – often frivolous ones – by large corporations or the government aimed at silencing individuals from discussing their opinions or otherwise exercising their First Amendment rights, the end goal being to force the individual to cave under the specter of a lengthy and expensive legal battle.
Some states began passing “Anti-SLAPP” laws with the hope of stopping such meritless lawsuits. On June 17, 2011, Texas joined the fray and enacted its own Anti-SLAPP statute called the Texas Citizens Participation Act (“TCPA”). Tex. Civ. Prac. & Rem. Code § 27.001, et. seq.
The stated purpose of the TCPA is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. Tex. Civ. Prac. & Rem. Code § 27.002. The Legislature, by including the phrase “otherwise participate in government” apparently intended this law to protect a citizen’s public participation, which is speech exercised in the form of public communication. Otherwise, pre-discovery dismissals, attorney’s fees, and sanctions would loom over any plaintiff filing an action for private defamatory speech, which would have the effect of chilling meritorious private defamation suits, a result neither intended nor required by the TCPA.
Under the TCPA, if a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action. Tex. Civ. Prac. & Rem. Code § 27.003(a). A “legal action” is defined as a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief. Tex. Civ. Prac. & Rem. Code § 27.001(6).
The moving party bears the initial burden of showing by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the exercise of his right of free speech, right to petition or right of association. Tex. Civ. Prac. & Rem. Code § 27.005(b). Under the TCPA, “exercise of the right of free speech” means a communication made in connection with a “matter of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(3). “Matters of public concern” include issues related to: (1) health or safety; (2) environmental, economic, or community well-being; (3) the government; (4) a public official or a public figure; or (5) a good, product, or service in the marketplace. Tex. Civ. Prac. & Rem. Code § 27.001(7). There is no requirement in the TCPA that the form of the communication be public, only that the communication involve a matter of public concern. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
Once the movant meets his initial burden, the burden shifts to the non-movant to establish by clear and specific evidence a prima facie case for each essential element of its claims. Tex. Civ. Prac. & Rem. Code § 27.005(c). The Texas Supreme Court has held that the non-movant can meet its burden through the use of circumstantial evidence. In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015). The non-movant can also prevail on a motion to dismiss by establishing that the challenged legal action is exempt from the TCPA, which exemptions include enforcement actions, commercial-speech actions, actions to recover for bodily injury, wrongful death or survival, or insurance actions. Tex. Civ. Prac. & Rem. Code § 27.010.
If the non-movant fail to meet its burden, the Court shall dismiss the legal action in favor of the movant. Tex. Civ. Prac. & Rem. Code § 27.005(b). Under the TCPA, if the Court orders dismissal of a legal action under this chapter, the Court shall award to the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter. Tex. Civ. Prac. & Rem. Code § 27.009(a). However, if the Court finds that a motion to dismiss filed under the Act is frivolous or solely intended to delay, the Court may award court costs and reasonable attorney’s fees to the responding party. Tex. Civ. Prac. & Rem. Code § 27.009(b). Of particular import is that the Court is required to award attorney’s fees, expenses and sanctions in favor of a successful movant under the TCPA, but the converse is not true for a successful non-movant.
Procedurally, a motion to dismiss under the TCPA must be filed no later than the 60th day after the date of service of the legal action. Tex. Civ. Prac. & Rem. Code § 27.003(b). On the filing of the motion to dismiss under the TCPA, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss. Tex. Civ. Prac. & Rem. Code § 27.003(c). A hearing on the motion to dismiss must be set not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall the hearing occur more than 90 days after service of the motion except as provided by the subsection permitting discovery relevant to the motion. Tex. Civ. Prac. & Rem. Code § 27.004(a). Thus, under normal circumstances the hearing on the motion must take place within 60 days. The Court must then rule on the motion not later than the 30th day following the date of the hearing on the motion. Tex. Civ. Prac. & Rem. Code § 27.005(a). If not, it is automatically denied by operation of law.
Therefore, when applicable, the TCPA is a powerful tool that parties can – and often do – use to ferret out the merits of an opposing party’s lawsuit at the very outset. It requires the non-movant to put forth its evidence very early on, usually without the benefit of discovery, and mandates an award of attorney’s fees, expenses and sanctions in favor of a successful movant.
Update: February 28, 2017
The Texas Supreme Court recently issued an opinion regarding the TCPA in ExxonMobil Pipeline Company v. Coleman, No. 15-0407, 2017 WL 727274 (Tex. Feb. 24, 2017), which could expand the scope of the TCPA. In that case, the speech at issue involved internal email communications among ExxonMobil employees about Coleman, a former employee. Coleman, 2017 WL 727274, at *1. Specifically, Coleman alleged that ExxonMobil and his supervisors defamed him in the email communications by making untrue statements about Coleman’s alleged failure to properly gauge a storage tank, which ultimately led to his termination. Id.
Both the trial court and the Dallas Court of Appeals denied Coleman’s TCPA motion to dismiss because, they felt, the email communications were only tangentially related to a “matter of public concern,” but rather merely involved internal matters at ExxonMobil related to Coleman’s job performance. ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 846 (Tex. App. – Dallas 2015, jgmt. rev’d.).
But the Texas Supreme Court disagreed and reversed the lower courts, finding that the TCPA does not require that the statements specifically “mention” health, safety, environmental, or economic concerns, nor does it require more than a “tangential relationship” to same; rather, TCPA applicability requires only that the defendant’s statements are “in connection with” “issue[s] related to” health, safety, environmental, economic, and other identified matters of public concern chosen by the Legislature. Coleman, 2017 WL 727274, at *3. Thus, the Court held, even though the email communications were private and among only ExxonMobil employees, they were related to a “matter of public concern” and thus fell under the TCPA because they concerned Coleman’s alleged failure to gauge a tank, a process completed, at least in part, to reduce the potential environmental, health, safety, and economic risks associated with certain chemicals overfilling and spilling onto the ground. Id. at *4.
Accordingly, it appears clear from the Texas Supreme Court’s rulings in Coleman and Lippincott that if a communication bears even a minimal or tangential relation to (1) health or safety, (2) environmental, economic, or community well-being, (3) the government, (4) a public official or a public figure or (5) a good, product, or service in the marketplace – even if the communication is entirely private and not shared with the public – it will most likely invoke the protections of the TCPA.
© Eric C. Wood, 2017