Mark Walker, member partner in our El Paso office, authored a white paper on Texas Anti-SLAPP law. The paper serves as a guide through the history of the TCPA, an outline of its provisions and application, and a navigation map for tactical and strategic considerations in its application and use, with many problems identified and discussed.
How It Began
The landscape of Texas civil litigation significantly changed when on June 17, 2011, Texas Governor Rick Perry approved the new Texas anti-SLAPP law, entitled the Texas Citizens Participation Act (the "TCPA"), and in so doing Texas joined 27 states and the District of Columbia in enacting various forms of legislation purportedly aimed at preventing frivolous lawsuits from stifling free speech activities and the rights of petition and association. As interpreted and applied, the TCPA is arguably the broadest anti-SLAPP law in the nation, which was the conclusion shared with the authors of the 2019 amendments to the TCPA. The Texas statute was one of 11 anti-SLAPP statutes enacted in 2010-2011. Seventeen states have no anti-SLAPP law at all. Fourteen states expressly apply their anti-SLAPP statutes to communication involving rights protected by the U.S. and their State's constitution.
Over the last eight years the TCPA launched a new and very expensive motions practice, clogging the dockets of trial and appellate courts with expensive, complicated, and time-consuming litigation, that often result in fee awards in the hundreds of thousands of dollars. Seemingly catching Texas practitioners off guard, the law instead proved to be an "across-the-board game-changer in Texas civil litigation." Through the end of December, 2019, there were 340 Texas appellate opinions on the TCPA, of which 13 came from the Texas Supreme Court.
The Law's Broad Reach
The TCPA introduces what one judge hearing probably the first TCPA motion to dismiss called a "draconian" motion to dismiss that places a heavy burden on the aggrieved plaintiff to prove that his suit is not frivolous at the inception of the litigation without the benefit of any meaningful discovery. Pleading became more of an art form for plaintiff lawyers, because "any skilled litigator could figure out a way to file a motion to dismiss under the TCPA in nearly every case." The Act did not attempt to define the shape or scope of a true SLAPP suit or distinguish between causes of action subject to or protected from the antiSLAPP statute. Instead, the TCPA has been applied to a very broad array of claims that do not resemble a SLAPP case, including UCC-1 financing statements, theft of trade secrets, breaches of nondisclosure agreements, and a host of other business, commercial and personal disputes.
Our research also shows that, when confronted with a TCPA motion to dismiss, plaintiffs are almost certain to lose all or part of their cases to dismissal. Although there are no reported statistics on the number of TCPA motions to dismiss granted at the trial level, we do have a record of results on appeal. Since only the movant whose motion to dismiss is denied is entitled to an interlocutory appeal, a review of results on appeal shows that more than 70% of appealed cases conclude with the motion to dismiss being granted in whole or in part. Coupled with some sense of cases in which the motion to dismiss is granted at the trial court, it is simple math to infer that the success rate of TCP A motions to dismiss must be greater than 90%.
The passage of the TCPA unleashed on Texas courts a torrent of motions to dismiss, and as a result the Legislature took steps in 2019 to attempt to narrow the scope of the TCPA.
While the objective of protecting First Amendment rights in the age of the internet is laudable, and conscientious lawyers are mindful of the need to pursue meritorious litigation, the TCPA has a number of flaws that may likely restrain the filing of legitimate suits, rather than restrict frivolous cases. The TCPA includes many flaws and inconsistencies that can serve as trial and appeal traps for the unwary lawyer. Since the TCPA clearly encompasses far more than SLAPP cases, practitioners should thoroughly examine this new law's applications and defenses in a wide variety of cases.
Business and constitutional tort lawyers should carefully review the statute and prepare for litigating it before making claims relating to communications made about..., well, just about anything at all.
To read the full white paper on this topic, CLICK HERE.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.