The Texas Citizens Participation Act (sometimes referred to as the “anti-SLAPP” statute) was enacted in 2011 as Chapter 27 of the Texas Civil Practice and Remedies Code. Since its enactment, the Act has generated more than 200 appellate decisions, with many more cases in the pipeline. Despite its broad application—and the fact that it has been applied not just to claims for to defamation but to claims for negligence, intentional infliction of emotional distress, tortious interference, trade secrets, and breach of contract as well—many lawyers know almost nothing about it. And knowing nothing about the Act engenders a substantial risk of committing malpractice.
The Act was designed, at least ostensibly, to protect the rights of free speech, association, and petition while at the same time protecting the right to file a meritorious lawsuit for demonstrable injury. It is important to know that Texas courts have interpreted the definitions of free speech, association, and petition more broadly under the Act than those terms are construed in constitutional cases. In essence, any time a communication is at issue in a lawsuit, the Act may be implicated.
A motion to dismiss under the Act must be filed within 60 days of service of a pleading implicating any of the enumerated rights. This can be a counterclaim as well as a petition. The hearing on the motion is to be held within 60 days of service of the motion to dismiss. Discovery is suspended until the motion is determined, unless limited discovery related to the motion is permitted upon application to the court. If discovery is granted, then the hearing on the motion may be held as many as 120 days after service of the motion.
The movant bears the burden to show by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of the right of free speech, right to petition or right of association. The non-movant must prove by clear and specific evidence each element of its claim or defense to survive a motion to dismiss. If the non-movant meets this higher burden, then the movant still may prevail by proving by a preponderance of the evidence each essential element of a valid defense.
The only evidence considered at the hearing is the pleadings and the affidavits of the parties. The court must rule on the motion within 30 days after the hearing; if it fails to do so the motion is deemed to be denied.
If the movant prevails on the motion to dismiss, the court must award court costs, reasonable attorney’s fees, and other expenses “as justice and equity may require.” The court also must award sanctions “sufficient to deter” the non-movant from infringing the protected rights of the moving party. On the other hand, the non-moving party may only recover fees if the motion to dismiss was “frivolous or solely intended to delay.”
Needless to say, these provisions for fees and sanctions provisions are a big deal! Just days ago, President Trump won the dismissal of a defamation case filed by Stephanie Clifford, better known as Stormy Daniels. The case was decided by a California federal judge who applied the Texas anti-SLAPP statute to the case. The President was awarded attorney’s fees of $292,052.33 and $1,000 in sanctions. Many less publicized cases involve similar fee and sanction awards in substantial amounts.
It is not hard to see that the Act has many malpractice traps. Here are a few big traps to watch for:
- As a plaintiff, you need to evaluate the application of the Act before filing suit. If you file a claim that is covered by the Act and do not defend it successfully, your client will be on the hook for attorney’s fees. If you file suit and then dismiss after a motion to dismiss is filed, your client will remain on the hook for fees and sanctions. Dismissing the case will minimize the damage, but not eliminate it.
- As a defendant, you must review the petition carefully to see if there is a communication that invokes the application of the Act. If you are asleep at the switch, 60 days can go by very quickly. Also, if the original petition does not assert a claim covered by the Act, an amended petition might. The filing of an amended complaint starts the 60-day clock again. The same principle also applies to a counterclaim filed against the plaintiff.
- Both parties (but primarily the plaintiff) need to evaluate quickly the need for discovery. It is not granted as a matter of right, and if the pleadings and available affidavits do not provide the necessary information to meet the burden of proof, discovery is essential. Failing to ask for discovery when it is needed to meet the applicable burden can be an act of malpractice.
- A plaintiff responding to a motion to dismiss must prove by clear and specific evidence a prima facie case of each element of its claim. This requirement undoubtedly includes damages even if they are only nominal or haven’t fully accrued. Do not attempt to gloss over any element of the claim!
In conclusion, the Act has a pervasive effect over many types of lawsuits. If you represent a plaintiff, “know before you go.” If you represent a defendant, scrutinize the petition for a communication. If you don’t know about the requirements of the Act, you may be in the unfortunate position of having to put your insurance carrier on notice.