She SLAPPed him he SLAPPed her who can

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.

86 th Legislative Session

But first: why care about TCPA? HBAudience Quiz #1: Why should I or my client care about SLAPP? 1290, sec. 1 Prior to the new law, what could happen if a SLAPP motion is filed against a claim you are asserting? 4 You may be forced to prove up all claims/counterclaims and assertions immediately, before any discovery 4 You may be forced to negate all potential affirmative defenses immediately, before any discovery 4 You may lose your ability to obtain discovery at all 4 You may face a full appeal on the merits of your claim before being able to effectively obtain discovery or trying your claim 4 Mandatory sanctions against you/your client 4 Mandatory attorney’s fees due against you/your client 4 Sanctions may trigger automatic bar ethics investigations 4 All of the above

But first: why? HBAudience Quiz #2: Why do I care? As a government actor, 1290, sec. 1 what can still possibly happen to you and your client under SLAPP? 4 Dismissal of a case, claim, or counterclaim 4 Sanctions 4 Payment of other side’s attorneys’ fees 4 All of the above

But first: why change the TCPA? HBAudience Quiz #3: Why change the law? What actions below 1290, sec. 1 have seen SLAPP motions filed against them? 4 Employment suits 4 Suit to enforce open-meetings law 4 Agency enforcement actions 4 Actions by private citizens against government actors 4 Appeals filed at a Court of Appeals 4 SLAPP motions themselves 4 Personal actions against attorneys who then assert SLAPP on the basis of their third-party client’s statements? 4 Practically any other type of claim asserting a request for legal relief you can imagine 4 All of the above

But first: why change the TCPA? HBLegal Update: anti-SLAPP hits the government 1290, sec. 1 4 Harper v. Best 4 Youngkin v. Hines • May apply even to an attorney’s speech on behalf of a client. 4 Waller County v. Holcomb – currently on trial re: amount fees and sanctions And the government hits back? 4 Roach v. Ingram – Tex. App. (14 th Dist. ) 2018

But first: why change the TCPA? HB“‘It seems that any skilled litigator could figure out a way to 1290, sec. 1 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. 3 d 352, 390 (Pemberton, J. , concurring) (quoting Justice Field concurring in Neyland v. Thompson, 3 rd Dist. 2015)

86 th Lege: first major TCPA overhaul HBMajor 1290, sec. to 1 TCPA (H. B. 2730): changes 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) 4 Specific new exceptions…and exceptions to the exceptions. 4 TCPA proceedings inadmissible later in proceeding 4 4 4

86 th Lege: first major TCPA overhaul HBMajor 1290, sec. to 1 TCPA: Breaking them down changes 4 Sanctions no longer mandatory: sanctions against parties now optional. • “shall award” now “may award” sanctions. 27. 009(a)(2). 4 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). 4 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).

86 th Lege: first major TCPA overhaul HBMajor 1290, sec. to 1 TCPA: Breaking them down changes 4 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). 4 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.

86 th Lege: first major TCPA overhaul changes to TCPA: Breaking them down HBMajor 1290, sec. 1 4 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). 4 “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). 4 “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).

86 th Lege: first major TCPA overhaul HBMajor 1290, sec. to 1 TCPA: Breaking them down changes 4 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. . .

86 th Lege: first major TCPA overhaul changes HBMajor 1290, sec. to 1 TCPA: Breaking them down 4 Specific new 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 Cleve Doty Cleve. Doty@oag. texas. gov (512) 475 -4136