Texas’ Legal Community SLAPPs Back

On a sweltering late June evening in the tony confines of The Adolphus Hotel, a gathering of unlikely compatriots took place. There were representatives from the Texas Trial Lawyers Association shoulder-to-shoulder with attorneys from the Texas Association for Defense Counsel and defense-leaning groups like Texans for Lawsuit Reform and the Texas Civil Justice League, as well as both Democratic and Republican trial and appellate judges from all over the state.

They were gathered to honor the architects of one of the signal achievements of the 2019 Legislature, Rep. Jeff Leach of Plano and Sen. Bryan Hughes of Mineola. Leach, chairman of the House Judiciary and Civil Jurisprudence Committee, and Hughes, chairman of the Senate Administration Committee, had successfully overhauled Texas’ anti-SLAPP statute, the Texas Citizens Participation Act (TCPA). Since its passage in 2011, the TCPA has been widely criticized by attorneys on both sides of the docket, as well as by judges and stakeholders, for its expansive scope and what some have called abusive use. Not surprisingly, Leach and a host of observers hail the 2019 Amendments to the statute as “one of the strongest, most important civil justice reforms in Texas in the past 20 years.”

So, what created the need for CSHB 2730, which was signed into law by Gov. Abbott on June 2? As veteran litigator Robert Tobey, shareholder in Dallas’ Johnston Tobey Baruch, explains, the original TCPA was enacted in 2011 “with good intentions” and in fact was modeled after California’s groundbreaking anti-SLAPP law. Lisa Kaufman, a partner in Austin’s Davis Kaufman and General Counsel to the Texas Civil Justice League, says that the TCPA’s original intent was to provide a mechanism for an early dismissal of a lawsuit “when the lawsuit was being pursued to silence critics of their constitutionally protected rights.” But, adds Kaufman (who helped draft 2019’s amendments), because of the overly broad language in the original statute, “courts began applying the statute to all sorts of cases, even those never intended to be covered by the law.”

As a result, says Tobey, the TCPA was increasingly viewed as “a dangerous statute on both sides of the docket,” and “an interesting coalition” of groups began clamoring for change. This coalition included not only plaintiff and defense lawyers, but also businesses and litigants. Another crucial voice was that of the Texas judiciary itself. Although Kaufman acknowledges that coalition-building and bipartisan work is not unusual in the legislative process, “having the judiciary at all levels (from district court judges to justices on the Supreme Court of Texas) uniformly request a legislative change or clarification to a statute is quite rare.”

Redefining Matters of Public Concern
The amended version of the TCPA sailed through the House and Senate and takes effect on Sept. 1. So what does “TCPA 2.0” provide? Perhaps the most significant change made was to clarify the instances in which the statute should apply. It did this in part by adopting a different definition of “matters of public concern.” The new definition, which tracks language used by the U.S. Supreme Court in the case Snyder v. Phelps, views a “matter of public concern” to include not just communications but “activity” as well. It protects statements or activities about public officials, public figures, or other persons who have drawn substantial public attention whether through official acts, fame, or notoriety; it also shields statements or activities about subjects of concern to the public, as well as matters of political, social, or other interest to the community. As Chairman Leach says, “Whether made in a public forum, on the sidewalk to a passerby, to a neighbor over the backyard fence, to a family member in the living room, or to a therapist, communication about topics of significant public interest are protected.”

The new law does, however, narrow the protection for exercising one’s “right of association” by tethering its protection to matters relating to a governmental proceeding or a matter of public concern. And in place of the former language that the legal action need only “relate to” a party’s right to free speech, right to petition, or right of association, the new law now says the action must be “based on” or “in response” to a party’s exercise of those rights. In addition to modifying the definitions of what the TCPA would apply to, the amended statute includes a laundry list of new exemptions to make it clear what the law doesn’t apply to. This includes areas where the original TCPA was perceived to have been abused, including Family Code cases and applications for protective orders; claims under the Texas Deceptive Trade Practices Act; eviction suits; medical peer review cases and attorney disciplinary proceedings; common law fraud claims; trade secret misappropriation cases; and employment cases involving the enforcement of noncompete covenants or nondisparagement agreements.

Not only does CSHB 2730 change what kinds of cases the TCPA applies to, it also changes how it can be used to prevent the “sword instead of shield” abuse mentioned by Leach. To avoid the kind of legal gamesmanship that saw lawyers filing anti-SLAPP motions in response to a wide variety of procedural motions, the amended TCPA expressly prevents such tactics. As Chairman Leach points out, “Discovery motions, motions for summary judgment, alternative dispute resolution proceedings, and post-judgment enforcement actions are not subject to the TCPA under the revised law.”

Providing Stronger Protections
The amended TCPA also tweaked other aspects of the law, including who can use it, the type of evidence that may be admissible, and the attorney’s fees and sanctions available under the law. In reaction to instances where government actors invoked the TCPA, the new law expressly prohibits any governmental agency, entity, or official (or employee acting in an official capacity) from qualifying as a party protected by the TCPA. The amendments also bring the TCPA more in line with other types of cases in terms of the type of evidence that can be considered and the timelines applicable to filing and hearing deadlines. And although the new law keeps intact the mandatory attorney’s fees award, Leach is quick to point out that the narrowing of the TCPA doesn’t mean it won’t be powerfully applied. The new law, he says, “provides stronger protections for the media that meet or exceed the strongest anti-SLAPP laws in the United States,” and protects “the Constitutional rights of free speech, association, and petition.” Leach also adds that the new law “protects victims and alleged victims of family violence and sexual assault . . . victims who tell their stories publicly or privately are protected from suits by their attackers seeking to intimidate and silence them.”

Impact On Business
The amended version of the TCPA has explicitly narrowed the scope of the statute, so that the abuses of the past ( i.e., a company suing a former employee for revealing trade secrets or confidential information only to be shut down by a TCPA motion to dismiss over “free speech” being violated, and having to pay the ex-employee’s attorneys fees on top of that) can’t happen again. Businesses will be able to protect themselves, their intellectual property, and the integrity of their operations without having to worry about a meritless legal action thwarting these efforts.

Ultimately, time will tell if the warm reception the amended TCPA has received from the legal and business communities will cool over time. Most legal observers are optimistic. Lisa Kaufman, for example, feels “the changes made in HB 2730 will realign the use of the statute to its original purpose.” Others remain unconvinced. Robert Tobey notes that even as amended, there’s “still room for lawyers to maneuver,” and adds “I still think this statute is pretty broad.” With interpretation of this law by appeals courts looming as the next battleground, lawyers like appellate specialist Scott Stolley of Dallas’ Stolley Law, P.C. are already girding for the inevitable. According to Stolley, “The statute is still broadly worded and some of the language could be described as unclear. So I anticipate that the TCPA will continue to be a hot topic in the appellate courts.”