In the first ruling of its kind in Texas, a federal judge yesterday ruled explicitly that the Texas Citizens Participation Act (TCPA) applies to cases brought in federal court under diversity jurisdiction.
In the case of Christopher Williams v. Cordillera Communications, Inc., et al, No. 2:13-cv-00124 (S.D. Tex. June 11, 2014) (Order on Anti-SLAPP Motion) Judge Nelva Gonzales Ramos, a District Judge from the Southern District of Texas held that the Texas Citizens Participation Act applies to cases brought in federal court under diversity jurisdiction.
Williams initially brought the case against Cordillera Communications, Inc., and KVOA Communications, d/b/a KRIS Communications (KRIS) for defamation in 2013, based on KRIS’ 2013 reporting about Williams, a teacher, who had been “accused of criminal acts of a sexual nature involving young females, some of whom were his students.” Williams at *7. Specifically, the television station’s investigation related to evidence that school districts allowed Williams to resign in a manner that shielded the allegations and he was subsequently hired by other school districts who experienced “similar allegations of wrongdoing”. Id. The lawsuit was removed to federal court on the basis of diversity. In 2014, KRIS ran a follow-up story and Williams filed an amended complaint, adding new allegations of defamation based on the 2014 reports. In response to the new claims in the amended complaint, KRIS filed an anti-SLAPP motion.
In response to the anti-SLAPP motion, Williams objected on the grounds that the TCPA is procedural and does not apply in federal court. The court analyzed the statute under the Erie Doctrine and found that while there are procedural aspects to the TCPA, such as its time constraints and a stay of discovery, the procedures are “designed to prevent substantive consequences–the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit under state law regarding defamation.” Id. at 2.
The Williams court also looked to precedent in the Fifth Circuit, noting that the Fifth Circuit has concluded that the Louisiana anti-SLAPP statute applies in federal court. In Henry v. Lake Charles American Press, LLC, 566 F.3d 164 (5th Cir. 2009), the Louisiana anti-SLAPP statute applied, although the Fifth Circuit ultimately overruled the dismissal, concluding that that plaintiff had demonstrated a probability of success on the merits. The Fifth Circuit again noted that the Louisiana anti-SLAPP statute applies in federal court in Brown v. Wimberly, 477 Fed.Appx. 214, 216, (5th Cir. 2012). In recognizing the Fifth Circuit’s repeated application of the Louisiana anti-SLAPP statute, the Williams court stated:
There is no material difference between the Louisiana and Texas anti-SLAPP statutes. Consequently, anti-SLAPP statutes such as the TCPA are enforceable in federal courts sitting in diversity jurisdiction under the Erie doctrine. -Williams at *4.
Earlier federal courts have applied the TCPA or interpreted the TCPA in regards to cases sitting before them, however none have faced a timely objection to the application of the statute in federal court. Accordingly Williams is the first case in which a judge interpreted the question of whether or not the statute can be applied in federal court. See, e.g., NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., __ F.3d __, 2014 WL 941049 (5th Cir. March 11, 2014); Culbertson, et al. v. Lykos, et al., 4:12-CV-03644 (S.D. Tex. 2013); Monaco Entertainment Group, LLC v. City of El Paso, et al., 3:11-CV-00561-DB (W.D. Tex. ‒ El Paso 2012); Ascend Health Corp. v. Wells, 4:12-CV-00083-BR, 2013 WL 1010589 (E.D.N.C. Mar. 14, 2013).
Also at issue in the Williams case was the question of whether the anti-SLAPP statute could be applied to an amended compliant when the original complaint was over a year old. The court looked to the statute and noted that a “legal action” is clearly defined in the statute as, “a lawsuit, cause of action, petition, complaint, cross-claim, or counter-claim or any other judicial pleading or filing that requests legal or equitable relief.” Id. at *4, (citing TCPA § 27.001(6)). The court found that the statute “contemplates additional pleadings and additional causes of action that may arise during the progress of the case.” Id. Because the new claims related to broadcasts that didn’t occur until 2014, the statute applied.
Another objection raised by Williams was the inclusion of evidence other than “the pleadings and supporting and opposing affidavits” as described in the statute. Williams argued that the court was not allowed to consider other evidence such as a DVD of the broadcasts in question, discovery responses from earlier in the case, and public records relating to the incidents discussed in the broadcasts. The court overruled Williams’ objection, noting that under the TCPA, targeted discovery is allowed, which would result in evidence such as deposition testimony, admissions and documents produced through requests for production, and “the statute does not preclude the use of such evidence.” Id. at *5.
The court also found that it didn’t need to determine whether Williams was a public figure because KRIS’s reporting on the school districts’ continued hiring of Williams amid allegations of wrongdoing was about “health and safety, community well-being, and… the government” and therefore the TCPA applied.
Finding that the broadcasts at issue were substantially true, the court found that Williams did not satisfy his burden of showing with clear and specific evidence that the broadcasts were materially false and defamatory. The court, having earlier dismissed the claims related to the 2013 broadcasts on summary judgment, dismissed the 2014 claims and dismissed the entire case with prejudice, with instructions to the parties to schedule a hearing on costs, fees and expenses.
The lead attorney for KRIS is Laura Prather of Haynes and Boone, LLP.
Author’s note: The author of this article, Alicia Calzada, is an attorney at Haynes and Boone, LLP and provided assistance to the attorneys representing KRIS in this case.
Legislative Anti-SLAPP and First Amendment updates
The 2013 Legislative session was very good for free speech and First Amendment. In addition to passing improvements to the Public Information Act, the legislature, led by Chairman Todd Hunter (R-Corpus Christi) and Sen. Rodney Ellis (D-Houston), passed a law called the Defamation Mitigation Act and updated the Citizen’s Participation Act. While many bills went into effect on September 1, the anti-SLAPP improvements went into effect on June 14, 2013.
Laura Prather discusses the improvements to the Texas Citizens Participation Act in her article, Texas’ Citizen Participation Act Gets Stronger.
Among the highlights of the improvements to the act:
- the timing for the hearing is more flexible, and extended if discovery is ordered.
- an appeal is expressly permitted.
- the use of affirmative defenses for dismissal, which has been permitted in several cases, is now codified.
Prather also wrote an article on the Defamation Mitigation Act, an essential read for anyone sued for defamation in Texas. Texas Adopts the Defamation Mitigation Act.
The complete updated Texas anti-SLAPP statute is available on our website.
Update: Wentworth v Jones Anti-SLAPP motion denied
The San Antonio Express-News is reporting that Judge Martha Tanner denied Elizabeth Ames Jones’ Anti-SLAPP motion to dismiss the defamation lawsuit which Jeff Wentworth filed against her last month.
See full story: http://www.mysanantonio.com/news/local_news/article/Senator-s-defamation-suit-can-proceed-3616726.php
The article reports that Jones is planning to appeal the denial of the Anti-SLAPP motion.
EDITOR’S NOTE: this case was settled on the eve of appellate argument.
New Case to Watch: Wentworth v. Jones
There is a new Anti-SLAPP case to watch, this one wrapped up in a bitter Texas Senate primary battle for which early voting has already begun.
Senator Jeff Wentworth (R-San Antonio) who is running for re-election, is being challenged in the Republican primary by Elizabeth Ames Jones. Sen. Wentworth sued Jones on Thursday, alleging libel and slander for media advertisements that claim Wentworth engaged in “double-dipping” for certain reimbursements. See Pl. Original Petition, Wentworth v. Jones, No. 2012-CI-08201 (73rd Dist. Ct., Bexar County, Tex. , filed May 17, 2012).
On Friday, Jones filed an answer, asserting the defense of truth and noting that she will be filing an Anti-SLAPP motion in the coming days.
It will be interesting to see if this lawsuit survives the end of the election, but if it does, this is definitely one that is being followed in the media. There are a couple of interesting political twists to this story. As Jones notes in her Answer, Sen. Wentworth voted in favor of the Anti-SLAPP law that Jones is planning on making use of (the bill was passed unanimously in both chambers). Further, Texans for Lawsuit Reform (TLR) is one of Jones’ largest donors, according to the San Antonio Express-News. TLR was a member of the coalition that supported the passage of the bill. So both are politically connected to the law. Pass the popcorn!
Resources:
Dallas Judge Awards $15k in Sanctions to SLAPP Defendant
Plaintiffs filing SLAPP suits in Texas are beginning to feel a greater sting as the law progresses. Late last week, a judge in Dallas granted attorneys fees, and $15k in sanctions to the defendants.
Attorney David O’Dens filed an Anti-SLAPP motion to dismiss in Dallas County and the motion was granted in March. After a hearing on attorneys fees and sanctions, the judge awarded over $15,000 in attorneys’ fees and $15,000 in sanctions, “which the court determines is sufficient to prevent Plaintiff, American Heritage Capital, LP, from bringing actions similar to this action.”
American Heritage Capital had sued Dinah Gonzalez, and later Alan Gonzalez, for defamation after Mr. Gonzalez posted comments online about a negative experience he had with the online mortgage lender. SLAPP suits over online speech are commonly called “Cyber-SLAPPs.” O’Den’s law firm posted a summary of the case on their website.
The language of the statute provides that the court shall award court costs, expenses, attorneys fees, and “sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.” See Tex. Civ. Prac. & Rem. Code § 27.009(2). The use of the wording “shall” imposes a duty on the judge under the Code Construction Act.
Washington State’s anti-SLAPP law provides for mandatory sanctions as well and statutorily mandates that the sanctions should be at least $10,000. See Wash. Rev. Code 4.24.525.
See the final judgment here. See a post by Eric Goldman here. The case is American Heritage Capital, LP v. Dinah Gonzalez and Alan Gonzalez (No. DC-11-13741-C) (filed October 27, 2011).
Anti-SLAPP cases to watch
We frequently get contacted by victims of SLAPP suits telling us about their pending cases. For the most part, I have only posted details on cases after there is a favorable anti-SLAPP ruling by the court, but there are a couple of cases worth watching:
Dr. Andrew J. Wakefield, MB., BS., FRCS, v. The British Medical Journal, a d/b/a of BMJ Publishing Group Ltd., also d/b/a BMJ Group, and BMJ, Brian Deer, Individually, and Dr. Fiona Godlee, Individually, Cause No. D-1-GN-12-000003, 250th Judicial District, Travis County, Texas).
What appears to be the third lawsuit filed in Austin in 2012 is also one of the most high-profile anti-SLAPP cases to hit Texas yet. Andrew Wakefield is a doctor from the U.K. who published a paper theorizing that vaccines caused autism. This led to widespread panic among parents and the defendant, Brian Deer, wrote a series of articles in the British Medical Journal, calling Wakefields study into question. Wakefield’s study was retracted by the original journal that published it, the Lancet. Wakefield sued Deer in Austin, Texas for defamation, and Deer, in addition to filing a special appearance challenging jurisdiction, has filed an anti-SLAPP motion to dismiss. Because of the drama surrounding the debate over vaccine safety (some supporters of Wakefield apparently see this as a re-test of the validity of the study) Wakefield’s fall from grace and Deer’s expose, there is a good deal of attention swirling around this lawsuit and the anti-SLAPP law.
Wallbuilder Presentations, Inc. through its President, David Barton and Wallbuilders, L.L.C. through its President, David Barton and David Barton, individually v. W.S. Smith and Judy A. Jennings and Rebecca E. Bell-Metereau, Cause No. CV-11-1349 (415th Judicial District, Parker County, Tex., filed Nov. 7, 2011)
In this case, David Barton, a former Vice Chairman of the Texas Republican Party, filed defamation suits against Jennings and Bell-Metereau, former candidates for the State Board of Education, and writer for Examiner.com W.S. Smith. The lawsuit against Jennings and Bell-Metereau reportedly is based on a campaign video, and the Smith claim is reportedly based on an article he wrote. The defendants filed an anti-SLAPP motion but it was denied without explanation by a Parker County judge. An appeal is currently pending in the Fort Worth Court of Appeals. This case is of special interest because it could lead to the first appellate ruling interpreting the law- which will be important to all future anti-SLAPP cases.
If you are aware of an anti-SLAPP case that we should be following, please email me: alicia@calzadalegal.com
El Paso Federal Court Dismisses SLAPP suit
A federal judge in El Paso granted several motions to dismiss in a “SLAPP” suit in federal court this week.
The lawsuit, filed by night club owner David Cooper against the Cielo Vista neighborhood association, the City of El Paso and several individual defendants (a total of 12 defendants) alleged defamation and tortuous interference. The neighborhood association and several neighbors had spoken out against Cooper’s plans to bring a nightclub into the area and the City of El Paso supported the neighbors. The association also protested a liquor license application. KFOX Channel 14 posted a story about the lawsuit on its website.
Defendants filed several motions to dismiss on various grounds, including based on the Texas Citizens Participation Act, Texas’ new anti-SLAPP law. As one of the motions stated, “CVNA is being sued for encouraging its City Representatives to act!”
Defendant Irene Borunda said, “All that the neighbors and the association did was to file a protest against his liquor license.” Borunda said that the Plaintiff was seen on television expressly stating that the defendants should learn their lesson and not protest his liquor license. Borunda expressed gratitude for Judge Briones’ decision.
In a two-page order granting several motions to dismiss, one of which had included anti-SLAPP arguments, Senior U.S. District Judge David Briones issued an order Tuesday finding that “the Plaintiff’s claims are frivolous, without merit, and made only to stifle opposition and quiet the neighborhood.” The court also wrote that it would “give strong consideration to any motions for attorneys’ fees the Parties may file.” Monaco Entertainment Group, LLC and David Cooper v. City of El Paso, et. al., 3:11-cv-00561-DB (W.D.Tex-El Paso, order issued April 3, 2012). Attorneys fees are mandatory under the statute. According to the order, a memorandum opinion is forthcoming and we will post when it is available.
A related state law case was also dismissed recently under the Anti-SLAPP law. See Three Legged Monkey, et., al vs. Irene Borunda, Robert Borunda, John Billingslea, Anna Nazario, John Cook, Case No. 2012-DCV00099 (327th District Court, El Paso County, Tex., filed 1/3/2012).
First Amendment attorney Laura Prather, who drafted the statute and led a coalition to support its passage in the state legislature last year, and who has recently argued and won multiple anti-SLAPP motions in Texas state courts, said the ruling was “a win for all Texans. This precedent will pave the way for others sued in federal court to be able to get early dismissals under the anti-SLAPP statute.”
In an amended complaint filed in February, the Plaintiffs had argued that the anti-SLAPP law is unconstitutional because it deprives them of the right to file a lawsuit that the court has clearly found to be frivolous, and that it deprived them of the right to have their frivolous lawsuit heard by a jury. Similar arguments that anti-SLAPP laws are unconstitutional have been widely rejected by state appellate courts across the country. The plaintiffs also asserted that the law should not apply to this suit because some of the actions in the lawsuit took place before the effective date of the Act. However, the Citizens’ Participation Act clearly states that the act applies to lawsuits that are filed after June 17, 2012, regardless of when the complained-of acts occurred. See 2011 Tex. Sess. Law Serv. Ch. 341, Sec. 3-4 (H.B. 2973) (West).
There is a split among federal courts in applying state anti-SLAPP laws. Several jurisdictions, including California, have applied state anti-SLAPP laws to state claims brought in federal court but not all jurisdictions have followed suit. Recently federal courts in the District of Columbia declined to apply D.C’s new anti-SLAPP law. Conditions are favorable for using the law in Texas federal courts for two reasons—first, the language of the Texas statute is similar to California’s thus providing ample precedent, and second the Fifth Circuit Court of Appeals, which is precedential in Texas, has already upheld application of Louisiana’s Anti-SLAPP law in federal court. Courts general decide whether or not to apply state anti-SLAPP laws to federal cases based on the Erie doctrine, and whether or not the state law is determined to be substantive or procedural.
At least one other anti-SLAPP motion is pending in a Texas federal court, in the case of Ward v. Rhode, No. 6:11-cv-00531 (Southern Dist. Tex., filed Oct. 7, 2011).
Click here to download the order granting the motions to dismiss.
2011 – A good year for Texas Anti-SLAPP
The law was put to use almost immediately. By September there was already an Anti-SLAPP victory. Another followed in November and yet another in December. The 2011 dismissals under Section 27 are listed below:
- Dismissed September 6, 2011 by Judge Eric Moye in Dallas: Wholesale TV and Radio Advertising, LLC, v. Better Business Bureau of MNetropolitan Dallas, Inc., Cause No. 11-08382-A (14th Dist. Ct., Dallas County, Tex. Sept. 6, 2011). Attorneys fees were awarded. This case is currently on appeal before the Dallas Court of Appeals.
- Dismissed November 22, 2011 by Judge Patricia Kerrigan in Harris County: Viera v. Hearst Newspapers, LLC d/b/a The Houston Chronicle, KHOU-TV, Inc. and Post-Newsweek Stations Houston, Inc. d/b/a KPRC-TV, Cause No. 2011-42884 (190th Dist. Ct., Harris County, Tex. filed Sept. 16, 2011), order signed by Judge Patricia Kerrigan.
- Dismissed December 16, 2011 in Harris County: Yolanda Flores v. Houston Community College System, et. al., Cause No. 2011-49084 (61st Judicial District, Harris County, Tex., filed November 11, 2011). $35,700 in attorneys fees were awarded in that case.
The Anti-SLAPP Motion to Dismiss was not granted in the following case:
- Motion to Dismiss denied on February 1, 2012 in Parker County, Texas by Judge Graham Quisenberry: Wallbuilder Presentations, Inc. through its President, David Barton and Wallbuilders, L.L.C. through its President, David Barton and David Barton, individually v. W.S. Smith and Judy A. Jennings and Rebecca E. Bell-Metereau, Cause No. CV-11-1349 (415th Judicial District, Parker County, Tex., filed Nov. 7, 2011).
If you are aware of an Anti-SLAPP dismissal, or denial of a motion to dismiss, that is not listed above please email me.
In Oregon- A Twitter SLAPP suit
A Portland blogger is being sued for a twitter post. According to The Oregonian, blogger Tiffany Craig is being sued for defamation after she wrote a post about a doctor, Jerrold Darm, who was reprimanded by the medical board for “inappropriate” contact with a patient. Craig blogged about the 2001 incident, and tweeted about it as well.
Craig’s attorney has filed an Anti-SLAPP motion under Oregon’s anti-SLAPP laws in an effort to get the case dismissed.
Read more about the case and the way that the Anti-SLAPP law is being applied here:
http://www.oregonlive.com/tigard/index.ssf/2011/10/oregons_first_twitter_libel_la.html
New Primer on Texas Anti-SLAPP
Want to know more about what the Citizens Participation Act means to you and how it can be effectively used?
Laura Prather, a First Amendment Attorney and the leader of the Coalition for the Texas Citizens Participation Act has written a great primer on the Act, explaining the main points of the bill and the origins of the effort.
You can read the primer by following this link.
Slapped In Texas 