by Richard B. Phillips, Jr. & Nicole L. Williams
The Texas Citizens Participation Act (TCPA, a/k/a the Anti-SLAPP Statute) was enacted in 2011 and updated in 2013. The TCPA provides a mechanism to dismiss a lawsuit “based on, relate[d] to, or in response to a party’s exercise of the right of free speech, right to petition, or right of association.” Each of these rights is connected to a party’s communications: to individuals with common interests, in connection with a matter of public concern, or pertaining to a judicial, legislative, or executive proceedings. As motions to dismiss under the TCPA are being filed more frequently (and in more types of cases), a review of recent cases and open issues is in order.
The TCPA’s language is broad, and the Texas Supreme Court has repeatedly held that it should be given its broad meaning. In a series of cases, the Court has reversed decisions of lower courts that limited the TCPA’s scope. First, in Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015), the Court reversed an appellate court that had held that a communication must be “public” to be subject to the TCPA. The Court noted that nothing in the TCPA restricted its application to public communications. Any communication that is “in connection with” a matter of public concern can be subject to the TCPA.
Next, in ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017), the Court addressed the breadth of “in connection with.” The Court reversed the court of appeals’ decision, which had held that there must be a “nexus” between the communication and the matter of public concern. Based on the broad statutory term “in connection with” and the lack of any limiting language in the TCPA, the Court held that even a tangential relationship between the communication and the matter of public concern is sufficient.
Finally, in Hersh v. Tatum, 2017 WL 2839873 (Tex. 2017), the Court held that a defendant can show that a claim is “based on” a communication alleged by the plaintiff, even if the defendant denies making the alleged communication. The Court reasoned that the plaintiff’s petition is the best indicator of the basis of the plaintiff’s claim. The Court held that “when it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” Justice Boyd concurred, noting that a defendant can also invoke the TCPA if the claim is “related to” or “in response to” the exercise of a protected right, and that those terms are broad and should be read broadly.
As more defendants resort to the TCPA for early dismissal, one key open issue is whether the statute applies in federal court. The answer turns on whether the TCPA is substantive or procedural. The Fifth Circuit has thus far studiously avoided deciding whether similar state statutes are substantive or procedural and whether federal courts can apply them.
Finally, recovery of attorney’s fees is an open issue. The TCPA provides that the trial court “shall” award attorneys fees to prevailing parties. Due to its First Amendment focus, the TCPA is often used by pro bono or public interest attorneys. While the Supreme Court has held that attorney’s fees are mandatory under the TCPA, an unresolved issue is whether fees for pro bono or public-interest attorneys are recoverable under the TCPA, as they are under many similar statutory schemes, or whether fees must be actually incurred in order to be recovered. The Supreme Court has held that the phrase “as justice and equity may require” modifies only “other expenses incurred,” and that a trial court cannot reduce the court costs or attorney’s fees to a successful movant because they are unjust or inequitable. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). But the Dallas Court of Appeals has held that the modifying phrase “incurred in defending against the action” applies to court costs and attorney’s fees in addition to “other expenses.” Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, pet. denied). The Supreme Court has yet to decide whether fees must be incurred to be recoverable.