77064643 – online slap, the relationship of men and women

The Texas Citizens Participation Act (“TCPA”)[1], enacted in 2011, is the Texas version of an Anti-SLAPP[2] statute, which have been enacted by over 30 states around the country to protect free speech and the right of association of private citizens under the First Amendment from harassing and baseless litigation aimed at curtailing those rights.

Intended for a worthy and important goal, the statutes were shepherded by an interesting coalition of large media corporations, law professors and civil libertarians. The Texas statute was also passed unanimously by both the Texas House and Senate-indeed, seemingly, everyone can agree that the right of private citizens to exercise their First Amendment rights to free speech and free association should not be chilled by meritless lawsuits.

However, because the wording of the TCPA is so broad (and goes far beyond traditional protections of free speech,) and because the Texas Supreme Court, and various courts of appeal around the state, have not backed down from enforcing the statute, exactly as written, lawsuits one would never expect to infringe upon First Amendment Rights have been tossed out of court.

The result has been to create a tool that arguably has been used to shut down legitimate claims under the guise of protecting citizens’ First Amendment Rights. Practitioners and concerned citizens alike should be aware of the statute and the surprising ways in which it is applied.

The Statutory Provisions.

Some of the key definitions under the TCPA include:

“(2) ‘Exercise of the right of association’ means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ‘Exercise of the right of free speech’ means a communication made in connection with a matter of public concern.

. . .

(7) ‘Matter of public concern’ includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.”[3]

Court Decisions and Unintended Consequences.

The Texas Supreme Court first set the example for interpreting the statute and enforcing it-exactly as written-in a seemingly surprising manner in the Coleman decision.[4]

In Coleman, a former employee sued ExxonMobil Pipeline for defamation, alleging that his employer had wrongfully accused him of falsifying records when terminating his employment.

ExxonMobil filed a motion to dismiss the suit under the TCPA. The Texas Supreme Court held the defamation action should be dismissed under the TCPA because the decision to terminate the employee was “related to health and safety, or the environmental, economic, or community well-being” and was a matter of public concern under the plain meaning of the statute, despite the communication of the reasoning for termination being transmitted solely between the management of the company and with Coleman himself.

According to his former employer, Coleman had failed to properly measure or report the correct measurement of petroleum products in a storage tank. That pedestrian reason for his dismissal was transformed into ExxonMobil Pipeline’s First Amendment right to free speech because, under the court’s reasoning and ExxonMobil’s argument, mismeasurement could have led to an accident-thus, meeting the statutory definition of a “matter of public concern” under the portion of the definition which includes the language, “an issue related to: health or safety . . . [or] environmental, economic, or community well-being . . .”

The Coleman decision laid down a marker for the courts of appeal around the state that the plain meaning of the statutory language must be enforced regardless of the impact on seemingly legitimate lawsuits or the original intent of the statute’s drafters.

Elite Autobody Decision.

The Third Court of Appeals at Austin has issued decisions containing possibly the most-extreme examples of the application of the Texas Supreme Court’s logic in interpreting the plain meaning of the TCPA, as laid out in Coleman.

In the Elite Autobody[5] decision, the Austin court of appeals applied Coleman to a TCPA motion to dismiss in a traditional, run of the mill, commercial trade secrets case between two competing Autobody repair shops in Austin, Texas.

Employees left Autocraft to work for Elite. Elite sued Autocraft claiming the employees had stolen trade secrets (typical internal company information including employee pay and personnel information, customer information and alleged compilations of proprietary technical data.) These type of suits generally turn on whether or not the alleged trade secrets actually deserve trade secret protection. However, Autocraft also filed a motion to dismiss under the TCPA.

The court held that the suit was properly dismissed because of the (broad and) plain meaning of the statute, the suit was found to infringe on the departed employees’ right of association because they were free to go to a new employer and their communication of their former employer’s company information was held to be a “communication between individuals” who were joining together to “pursue common interests.”

Despite the fact that the original proponents of the statute had the lofty goal of protecting citizens’ First Amendment rights from harassing and chilling lawsuits, the literal wording of the statute has lead Texas courts to apply it to-and dismiss-routine competition cases, and cases further far afield.

Out-of-Control Helicopter Parenting Condoned or Rendered Unactionable?

The Third Court of Appeals has recently handed down a more extreme example of this philosophy of statutory construction in its decision in Cavin v. Abbott.[6]

The Cavins were upset that their adult daughter, Kristin was dating Bill Abbott. The turn of events that followed is a harrowing reminder of the potential abuse of over-parenting-to say the least.[7] The decision itself demonstrates how far the “plain meaning” of the statute extends.

Kristin, in her mid-20’s was living in an apartment paid for by her parents while attending graduate school at the University of Texas. She met Bill Abbott through work and they began dating. Bill was older than Kristen and Kristen’s parents made it known, with increasing intensity that they did not want the couple to date-despite Kristin’s repeated protestations of her love and requests that they back-off.

Eventually, Kristin’s parents (allegedly) physically assaulted Kristin (on two separate occasions-one of which resulted in her mother’s arrest,) wrote scathing social media posts, and contacted both Bill’s and Kristen’s employers, accusing Bill of being a sociopath and using Marxist mind-control techniques to brainwash their daughter. When family members and friends wrote Kristin to side with her or give her encouragement, the Cavins sued them in lawsuits demanding damages of a million dollars, and more. A myriad of horrifying actions continued. Kristin eventually changed her last name and moved in with Bill, ultimately marrying him. But, Kristen’s parents apparently remained undeterred. The Cavins hired a private investigator and allegedly instructed him to “rattle” Bill by closely following him around, in an open and obvious manner. The Cavins had appeared at Kristin’s work to claim she had been kidnapped and was being held against her will. And, the Cavins recorded and posted a series of videos on the Internet and social media sites discussing the abusive-relationship narrative they were pushing in relation to Kristin and Bill.

Ultimately, Bill and Kristen hired a lawyer to file suit to try to stop Kristen’s parents from pursuing their campaign against the couple. The Abbotts sued the Cavins for conversion, defamation, tortious interference, abuse of process, assault, intrusion on seclusion/invasion of privacy and intentional infliction of emotional distress.

The Cavins filed a motion to dismiss under the TCPA.

The Austin court of appeals dismissed the case, except for the assault claim. The reasoning of the court followed the same logic laid out in Coleman. The court emphasized that the “exercise of the right of free speech” set forth in the statute, as to a matter of “public concern” “includes an issue related to . . . health or safety.” The court held that the communication need only be made “in connection with” an issue related to “health and safety.”

Citing the Coleman precedent, the Austin court stated the Texas Supreme Court has made it clear the TCPA must be enforced, exactly as written. Because the Cavins’ communications about their daughter’s relationship with Bill were literally made in connection with a matter related to their daughter’s health and safety, the TCPA applied and all of the claims had to be dismissed (with the exception of the assault charge relating to a physical altercation with Kristen’s father since the TCPA expressly excepts claims for assault.)

Legacy of Decisions Applying Coleman.

The Supreme Court has made it clear that he statute is to be applied exactly as written-damn the consequences.

Whether you believe the Third Court of Appeals at Austin is on a mission to prod the legislature to revise the TCPA and narrow its broad language, or that they are merely dutifully following Supreme Court precedent, it is also clear that the TCPA is here to stay unless and until it is revised. The TCPA must be incorporated into the litigator’s toolbox and considered very carefully in strategic planning for prosecution or defense of private lawsuits. Citizens in the State of Texas, in turn, should note the application of the courts’ literal interpretation of a well-intentioned law-and both the good and the ill effects, which have resulted.

[1] The Texas Citizens Participation Act, See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011.

[2] SLAPP: Strategic Lawsuits Against Public Participation.

[3] See Tex.Civ. Prac. & Rem. Code Ann. §§ 27.001 (2), (3) and (7).

[4] ExxonMobil Pipeline Co. v. Coleman, 512 S.W. 3d 895 (2017).

[5] Elite Autobody LLC v. Autocraft Bodywerks, Inc.,

[6] Cavin v. Abbott, __S.W.3d __, 2017 WL 3044583 (Tex.App.—Austin 2017).

[7] Based upon the “facts” taken as true by the Third Court of Appeals in its decision.

For better or for worse, I think most would agree that this has been one of strangest and most contentious presidential elections in recent memory. Whichever way the election turns out, history will be made. If Ms. Clinton wins, she will, of course, be the first female President of the United States. It is well documented that if Mr. Trump wins, he will be the oldest President ever to take office.

51559645 - presidential election voting poster set. vector illustration.
Copyright: elfivetrov / 123RF Stock Photo

What seems to have gone unnoticed this election year is the amount of Texas judicial seats up for re-election. According to Ballotpedia, three Texas Supreme Court seats, three Texas Court of Criminal Appeals seats, and twenty seats in the fourteen district courts of appeal are on the ballot for Election Day. The Texas Supreme Court is the highest court in Texas for all civil matters, and the Texas Court of Criminal appeals is the highest court for all criminal matters.

Each of the three Republican incumbents up for re-election in the Supreme Court (Debra LehrmannPaul Green, and Eva Guzman) have drawn Democratic, Libertarian, and Green party challengers. Again according to Ballotpedia.org, all nine current Supreme Court Justices are Republican. If two or three of the incumbents lose, this could signal a significant shift in the historically conservative Supreme Court.

In the Court of Criminal Appeals, eight of the nine sitting Judges are Republican, with Judge Lawrence Meyers being the lone Democrat on the Court. Judge Meyers is running for reelection, as is Republican Judge Michael Keasler. Republican Judge Cheryl Johnson is not running for reelection, and her seat on the Court of Criminal Appeals has drawn candidates from all four parties.

The Fifth District Court of Appeals, which hears both civil and criminal appeals from the Dallas, Collin, Grayson, Hunt, Kaufman, and Rockwall county district and criminal courts, also has the potential for some change this election. Republican incumbent Justice Lana Myers is being challenged by Democrat Judge Gena Slaughter, the current sitting Judge for the 191st District Court in Dallas County. Republican incumbent Justice David Schenck is being challenged by Democrat Judge Dennise Garcia, the current sitting Judge in the 303rd Family District Court in Dallas County.

Currently, all thirteen sitting Justices on Fifth District Court of Appeals are Republicans. Thus, even if both Judge Slaughter and Judge Garcia win seats, the impact upon the Court as a whole may be small, but the impact upon the parties appearing before the Court may be big. Appeals usually are heard in three-judge panels.  Therefore, rather than facing three Republican Justices for any one case, a party potentially could face a panel containing one or two Democrats.

40701102 - statue of justice
Copyright: sebra / 123RF Stock Photo

Locally, in Dallas County, incumbent Democratic Judge Eric Moye’ is being challenged by Republican Barry Johnson for his spot as Judge of the 14th District Court.  Also, Republican Greg Gorman and Democrat Maricela Moore are battling it out for the 162nd District Court after former Judge Phyllis Lister-Brown passed away.

There are, of course, many more judicial races — too many to cover in this blog post.  But after all is said and done, the question that remains is what difference does it make whether a Judge is a Republican or Democrat?  Or whether a particular Court is dominated by Judges of a particular politicial affiliation?

The answers to these questions could be and probably are the subject of many articles and books.  To the extent one can make generalizations, the quick answer is many believe Republican Judges tend to favor business and Democrat Judges tend to favor individuals.  Republicans tend to favor defendants and Democrats tend to favor plaintiffs. This is far from being universally true, and just like in law school, there are exceptions to every rule and exceptions to the exceptions.

But no matter what you believe, Election Day 2016 no doubt will prove to be interesting on both a national and a local level.

My father recently sent me a N.Y. Times article describing how the game of professional hockey and the NHL have changed in the last twenty years.  According to veteran sports writer Dave Caldwell, the NHL has changed from a game that was equal parts speed and obstruction/fighting to a game that primarily is about speed and finesse.  Fighting and hard hits still have a role in the NHL, but according to the stats compiled by Caldwell, as well as the players interviewed, the roles of fighting and “enforcers” are greatly reduced in today’s game.

44532438 - ice hockey player on the ice, outdoors
Copyright: yuran-78 / 123RF Stock Photo

Being from Brooklyn, NY, and having spent the first twenty-seven years of my life in New York, New Jersey, Rhode Island, and Boston, I have always been a hockey fan.  I still love hard hits and checks.  When I go to a Dallas Stars game, part of me still yearns for the “good old days” of hockey when N.Y. Islanders goalie Billy Smith seemingly would slash a player just for skating by his crease.  But even I, as an old school hockey fan, am forced to admit that the truly great hockey players of years past, such as Wayne Gretzsky, and of today, such as Jamie Benn, are skill, speed, and finesse guys, not brawlers.

This got me thinking – can the same be said for the practice of law?  Practicing law is a second career for me, so I usually have to rely upon folks older than me (in lawyers years, but not necessarily in years on this planet) to hear about the “good old days” of law practice before the Texas Rules of Civil Procedure were changed in 1999.  According to a paper co-authored by Texas Supreme Court Chief Justice Nathan Hecht, the rule changes were enacted to simultaneously allow more pre-trial discovery and put limits on discovery, and virtually eliminate trial by ambush in the much same way as the NHL largely has eliminated fighting.

Aren’t the truly great lawyers of today also skill and finesse people, as opposed to brawlers?  I cringe when I hear lawyers talk about times when a case was overstaffed with a team of associates to flood the other side with motion after motion, discovery request after discovery request, and letter after letter, to attempt to beat the other side into submission (the 1999 rule changes also addressed this problem and the inequities it caused).

I believe that clients are better served today by having an experienced lawyer properly staff a case to represent her client’s best interests. I also believe that while we lawyers are ethically required to zealously represent our clients, we can do so in an efficient, nimble, and strategic manner.  And the practice of law is continuing to evolve in line with this trend, with the recent changes to the Federal Rules of Civil Procedure now requiring all discovery sought to be proportional to the needs of the case.

A lawyer can be both strong and respectful – in fact, in my opinion, respect is a sign of strength.  So, yes, in law, as in hockey, there still is a place for the occasional brawl.  However, these are the exceptions, not the rule.