Texas Citizens Participation Act: The Basics

1. Texas Citizens Participation Act: The Basics Allison Killian Olson & Olson LLP

2. WHAT IS IT? • Texas’ Anti-SLAPP statute: Chapter 27 of Texas Civil Practice & Remedies Code • Provides protection against frivolous claims known as Strategic Lawsuits Against Public Participation • Enacted to prevent SLAPP litigation and offer SLAPP victims remedy of mandatory and immediate dismissal of SLAPP claims

3. The History • SLAPP litigation started gaining attention in 1980s • By 2010, 27 states had anti-SLAPP type statutes • Texas enacted TCPA in 2011

4. Who’s protected? • Citizens who are sued for exercising their constitutional right to free speech, to petition, or association. • Includes elected and appointed officials, government employees, and attorneys

5. When TCPA doesn’t apply • TCPA does not apply to: • Enforcement actions brought in the name of the state or political subdivision or by the attorney general, a district attorney, a criminal district attorney, or a county attorney • Legal actions brought against a person primarily engaged in the business of selling/leasing goods or services • Legal actions seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action • Legal actions brought under the insurance code or arising out of an insurance contract

6. Advantages • Special motion procedure for expedited dismissal of meritless lawsuits • In most cases, discovery is suspended once a motion to dismiss is filed until the court rules on the motion • Mandatory attorneys’ fees and expenses incurred in defending against SLAPP claims • Mandatory sanctions sufficient to deter claimant from bringing similar SLAPP claims in future

7. What is a “legal action” • Acourt must dismiss a “legal action” if it is based on, related to or in response to a party’s exercise of the right of free speech, right to petition or right of association. • TCPA defines “legal action” 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.” • Courts have held “legal actions” include: Rule 202 pre-suit discovery, motion for sanctions

8. What’s not a legal action • Courts have held these are not legal actions: Motion to Dismiss under TCPA, Appeal, declaratory judgment claims

9. Strict Deadlines • Motion to dismiss under the TCPA must be filed within 60 days after the SLAPP claim is served. • Hearing on the motion must occur within 60 days after the date of service of the motion. • Ruling on the motion must occur within 30 days of the hearing date.

10. Consequences if court doesn’t rule • If the court fails to rule within 30 days of the hearing date, the motion is considered denied as a matter of law.

11. Appeal • Movant may take an interlocutory appeal from a trial court’s denial of a TCPA motion to dismiss. • Appeal considered expedited and proceedings below stayed pending appeal. • Appeal not permitted for an order granting a TCPA motion to dismiss.

12. Motion Procedure • Movant has initial burden to show by a preponderance of evidence that the claim is based on, related to, or in response to movant’s exercise of the right of free speech, association or petition. • Once movant satisfies that burden, the burden shifts to the nonmovant to establish buy clear and specific evidence, a prima facie case for each essential element of his claim.

13. Procedure… • Even if nonmovant can establish a prima facie case, the court must dismiss if the movant establishes by a preponderance of the evidence a valid defense.

14. Clear and Specific Evidence • TCPA does not define “clear and specific evidence” • In re Lipskyheld a court may consider circumstantial evidence to determine if a non-movant has met its burden. • TCPA does not require direct evidence of each essential element of an underlying claim • In defamation case: evidence establishing the facts of when, where and what was said, the defamatory nature of the statements, and how they damaged the plaintiff is enough.

15. Movant’s burden – free speech • Free speech: A defendant moving for dismissal needs to show the plaintiff’s legal action is based on, related to, or in response to defendant’s exercise of right of free speech. • “The exercise of the right of free speech” means a communication made in connection with a matter of public concern.

16. Matter of public concern • A “matter of public concern” is defined as an issue related to: • Health or safety; • Environmental, economic, or community well-being; • The government; • A public official or public figure; or • A good, product or service in the marketplace

17. Right to free speech cases • Former City Manager sued City officials for defamation for statements allegedly made in connection with an investigation into criminal acts by plaintiff while he was City Manager. • Candidate running for City Council sued councilmember for defamation for statements allegedly made at a campaign event for mayor regarding plaintiff’s qualifications as a councilmember.

18. Free speech cases • Landry's, Inc. v. Animal Legal Def. Fund, 14-17-00207-CV, 2018 WL 5075116 (Tex. App.—Houston [14th Dist.] Oct. 18, 2018, no pet. h.) • Clifford v. Trump, 339 F. Supp. 3d 915, 919 (C.D. Cal. 2018)

19. Right to free speech cases • TCPA does not require that statements specifically mention health, safety, environmental or economic concerns. Only that defendant’s statements are “in connection with” issues related to health, safety, environmental, economic and other identified matters of public concern. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 897 (Tex. 2017).

20. TCPA’s wide net • Because the TCPA casts a wide net in covering so many forms of communication, the supreme court has held that blog posts and emails sent to residents regarding actions by a developer cutting down trees pertained to matters of public concern. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018), reh'g denied (June 22, 2018).

21. Movant’s Burden - petition • Petition: A defendant moving for dismissal needs to show the plaintiff’s legal action is based on, related to, or in response to defendant’s exercise of the right to petition

22. Right to Petition • “Exercise of the right to petition” means a communication pertaining to a judicial proceeding, official proceeding, legislative proceeding, proceeding before an entity that requires public notice, proceeding of the governing body of any political subdivision of the state, public meeting dealing with a public purpose.

23. Right to petition cases • Term “judicial proceeding” refers to an actual pending judicial proceeding and does not include anticipated or potential future judicial proceedings. Levatinov. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724, 729 (Tex. App.—Dallas 2016, pet. denied). • Despite the TCPA’s express purpose to protect constitutional rights, the Act’s definition of the “right to petition” is far broader than its understanding as a First Amendment right. Bevingv. Beadles, 02-17-00223-CV, 2018 WL 5074765, at *4 (Tex. App.—Fort Worth Oct. 18, 2018, pet. filed).

24. Right to petition cases • Employer showed that workers’ compensation claim for employment discrimination and claim for conspiracy were based on employer’s exercise of its right to petition; claimant’s contested case hearing was a governmental proceeding under the TCPA. Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 286 (Tex. App.—Dallas 2015, pet. denied). • The definition of a “communication” under the TCPA is broad and encompasses a petition in a lawsuit.Hawxhurstv. Austin's Boat Tours, 550 S.W.3d 220, 227 (Tex. App.—Austin 2018, no pet.).

25. Movant’s Burden- association • Association: A defendant moving for dismissal needs to show the plaintiff’s legal action is based on, related to, or in response to defendant’s exercise of the right of association • “Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

26. Non-suiting does not protect from dismissal and attorneys’ fees • Motion to dismiss is considered a claim for affirmative relief. • Thus, if Plaintiff amends petition after Defendant files anti-SLAPP motion to dismiss, and Plaintiff deletes claims, Defendant’s motion to dismiss survives. Defendant entitled to dismissal with prejudice, attorneys’ fees and sanctions.

27. Be Aware • The same provision of the TCPA that mandates attorneys’ fees and sanctions for a successful movant, also provides that costs and attorneys’ fees may be awarded to the nonmovant if the court determines the motion to dismiss is frivolous or solely intended to delay.