Legal Update 2019: SLAPP Motion Implications
Legislative and legal update for 2019 focusing on SLAPP motions and potential consequences, including mandatory sanctions, attorney fees, and impacts on government actors. Learn about the importance of TCPA changes and the significance for various legal actions.
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Presentation Transcript
She SLAPPed him, he SLAPPed her: who can be slap(p)ed now? 2019 Legislative and Legal Update Cleve Doty Assistant Attorney General Administrative Law Division Enforcement Team Office of the Attorney General Views expressed are those of the presenters, and do not constitute legal advice from the Office of the Texas Attorney General.
But first: why care about TCPA? HB 1290, sec. 1 Audience Quiz #1: Why should I or my client care about SLAPP? Prior to the new law, what could happen if a SLAPP motion is filed against a claim you are asserting? You may be forced to prove up all claims/counterclaims and assertions immediately, before any discovery You may be forced to negate all potential affirmative defenses immediately, before any discovery You may lose your ability to obtain discovery at all You may face a full appeal on the merits of your claim before being able to effectively obtain discovery or trying your claim Mandatory sanctions against you/your client Mandatory attorney s fees due against you/your client Sanctions may trigger automatic bar ethics investigations All of the above
But first: why? HB 1290, sec. 1 Audience Quiz #2: Why do I care? As a government actor, what can still possibly happen to you and your client under SLAPP? Dismissal of a case, claim, or counterclaim Sanctions Payment of other side s attorneys fees All of the above
But first: why change the TCPA? HB 1290, sec. 1 Audience Quiz #3: Why change the law? What actions below have seen SLAPP motions filed against them? Employment suits Suit to enforce open-meetings law Agency enforcement actions Actions by private citizens against government actors Appeals filed at a Court of Appeals SLAPP motions themselves Personal actions against attorneys who then assert SLAPP on the basis of their third-party client s statements? Practically any other type of claim asserting a request for legal relief you can imagine All of the above
But first: why change the TCPA? HB 1290, sec. 1 Legal Update: anti-SLAPP hits the government Harper v. Best Youngkin v. Hines May apply even to an attorney s speech on behalf of a client. Waller County v. Holcomb currently on trial re: amount fees and sanctions And the government hits back? Roach v. Ingram Tex. App. (14th Dist.) 2018
But first: why change the TCPA? HB 1290, sec. 1 It seems that any skilled litigator could figure out a way to file a motion to dismiss under the TCPA in nearly every case, in the hope that the claim will not only be dismissed, but that the movant will also be awarded attorney's fees. . . . such consequences a de facto loser-pays regime tied to summary dispositions, presumptively with no discovery turns civil litigation practice in general on its head. Serafine v. Blunt, 466 S.W.3d 352, 390 (Pemberton, J., concurring) (quoting Justice Field concurring in Neyland v. Thompson, 3rd Dist. 2015)
86th Lege: first major TCPA overhaul HB 1290, sec. 1 Major changes to TCPA (H.B. 2730): Sanctions no longer mandatory Government actors (mostly) cannot use TCPA defense Longer timeline/hearings may be extended Higher burden to win TCPA on a defense Somewhat narrower scope of legal action and rights that implicate TCPA ( relate to removed) Specific new exceptions and exceptions to the exceptions. TCPA proceedings inadmissible later in proceeding
86th Lege: first major TCPA overhaul HB 1290, sec. 1 Major changes to TCPA: Breaking them down Sanctions no longer mandatory: sanctions against parties now optional. shall award now may award sanctions. 27.009(a)(2). Government actors (mostly) cannot use TCPA defense A party under this section does not include a government entity, agency, or an official or employee acting in an official capacity. (In regard to a party s rights, as part of what constitutes a legal action. 27.003(a). TCPA s strict timelines may now be extended: Parties may agree to delay filing of a TCPA motion. 27.003(b). Court must rule only once a hearing concludes, not simply 30 days after the date of the hearing. 27.005(a).
86th Lege: first major TCPA overhaul HB 1290, sec. 1 Major changes to TCPA: Breaking them down Higher burden to win on a defense as movant: Before, you could win by proving any defense by a preponderance of the evidence without substantial discovery yet and force other side to rebut. Now, you need to show you are entitled to judgment as a matter of law. 27.005(d). TCPA proceedings now inadmissible later in proceedings. 27.0075. (Yes, .0075 is not a typo.) TCPA also does not impact standard burdens of proof on claims later in case. 27.0075.
86th Lege: first major TCPA overhaul HB 1290, sec. 1 Major changes to TCPA: Breaking them down Somewhat narrower scope of legal action and rights that implicate TCPA ( relate to removed) Declaratory relief explicitly included now, but . . . Legal action excludes: Procedural action or motion made that does not amend or add a claim for legal, equitable, or declaratory relief; ADR Post-judgment enforcement actions. 27.001(6). Matter of public concern no longer just an issue related to health, safety, and so on. Now, it s a statement or activity regarding public officials, figures, or the like, a matter of political, social, or other interest to the community; or a subject of concern to the public. 27.001(7). Right of association also drawn slightly narrower (must relate to a governmental proceeding or a matter of public concern, but language remains untested in the courts. 27.001(2).
86th Lege: first major TCPA overhaul HB 1290, sec. 1 Major changes to TCPA: Breaking them down Specific new exceptions to the TCPA (27.010): Employment relationships (including independent contractors) regarding misappropriation of trade secrets or enforcement of non-disparagement agreement or a covenant not to compete; Protective orders under family code; Various Family Code actions (under Title 1, 2, 4, or 5); DTPA cases (Almost all); Various health care reports/board actions; Evictions; State Bar disciplinary actions; Various whistleblower actions; Common-law fraud claims, except . . . BUT WAIT ONE HUGE CAVEAT . . .
86th Lege: first major TCPA overhaul HB 1290, sec. 1 Major changes to TCPA: Breaking them down Specific new exceptions to the exceptions to the TCPA (27.010): BUT WAIT . . . TCPA still applies to three categories of cases, regardless of the exceptions: Legal action arising from gathering, receiving, posting, or processing info for communication to the public, whether or not it s communicated, for: creation, dissemination, or so on of a dramatic, literary, musical, political, journalistic, or otherwise artistic work, including all kinds of media no matter the method or extent of distribution; Actions against victims or alleged victim of family violence based upon or in response to a communication. Actions related to consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.
Contact Contact Cleve Doty Cleve.Doty@oag.texas.gov (512) 475-4136
