Co-author Niloufar Hafizi

As mentioned last week, the 86th Legislature amended the Texas Citizens Participation Act, Texas’ Anti-SLAPP law and defendants’ go-to weapon of destruction in a diverse range of cases.

The TCPA was intended to prevent harassing lawsuits by plaintiffs seeking to quell constitutionally protected activity, in particular the exercise of free speech, the right to association, and the right to petition.but has been much-criticized for being overly broad and subject to abuse and misuse. The old TCPA was frequently applied in oil and gas litigation, which is why we are benefiting you with our observations.

Fortunately, the 86th Legislature passed a series of amendments limiting the scope of the TCPA and altering procedures to require more of parties who want to use the TCPA.

The old TCPA

The amendments take effect on September 1. We won’t waste your time on the how’s and why’s of the old act. Parties have succeeded in using the TCPA to dismiss actions for breach of covenants not to compete, tortious interference with contract, disclosure of trade secrets, and other breach of contract actions.  Let’s review several wacky and unfortunate results:

Daughter and son-in-law’s defamation suit against helicopter parents dismissed on TCPA grounds. Dad and Mom accused husband of winning her hand by using “Marxist” brainwashing, hypnotic implantation of phobias, and false memories.  Dad compared the husband’s face unfavorably a “dog’s butt”. It gets worse. In “helicopter” we’re talking the Russian Mi-26. For perverse entertainment, read the case to learn why.

Parties spent who-knows-how-much from trial court to the supreme court and back just to sort out whether the TCPA applied to a title suit.

TCPA applied to statements in a suit to protect confidential information in an pipeline case.

The new TCPA

Overall, the changes are intended to reduce frivolous and vexatious use of the TCPA. The new law is different in many ways, It:

  • excludes certain types of cases, such as arbitration proceedings, from its scope.
  • expands the number of exemptions to exclude many kinds of commercial litigation, including trade secret appropriation, suits to enforce non-compete agreements, and common law fraud.
  • changes procedures: The party moving to dismiss a legal action would have to demonstrate, rather than show by a preponderance of the evidence, that the legal action was based on free speech grounds or specific activities identified in the act. It is unclear what is meant by “demonstrate”. The judiciary will tell us what the Legislature meant.
  • requires a stronger connection between the claim and constitutionally protected conduct.
  • changes attorney’s fee awards available,
  • changes the legal effect of a TCPA ruling.
  • applies only on “a matter of public concern”, not private speech. What counts as a “public concern” will now be:

… a statement or activity regarding:

(A) A public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity;

(B) A matter of political, social, or other interest to the community;

or (C) A subject of concern to the public.

Dave Bartholomew RIP

Producer for what is alleged to be the first Rock and Roll song, and 65 more by Fats Domino (Sun Studios loyalists would disagree)

and backed Lloyd Price

and produced other New Orleans hits

and his own.