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.

So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.

In October, I wrote about How the Practice of Law is Like the NHL.  This article was about how rule changes in the practice of law, and changing skill sets in the NHL have made finesse and skill more important than brawling.  Recent experience has shown that this trend continues in law, and that Judges hate “gotcha games.”

Brett Myers and I recently sat through a trial docket call in County Court at Law No. 1 in Dallas County.  While waiting for our turn, we watched Judge Benson make two interesting rulings during a pre-trial hearing for the case ahead of us.

First, Judge Benson ruled that at trial, Defendant could not call as witnesses any of the twenty-three doctors it had recently disclosed.  Interestingly, Defendant’s attorney had added the doctors to Defendant’s disclosure responses forty-five days before trial, which is timely under the Texas Rules of Civil Procedure.  It did not come out during the hearing whether Defendant’s tardiness was a mistake or was intended as a “gotcha,” so as to not allow Plaintiff to conduct discovery on these witnesses.

Either way, the Judge sustained the Plaintiff’s objection to the witnesses, and held that this late disclosure caused unfair prejudice to Plaintiff.  In her commentary from the bench, Judge Benson said if there had been a timely supplementation of one or two witnesses, it would have been okay, but such a late disclosure of this amount of witnesses simply was not fair.

Second, in a turn of the tables, Judge Benson ruled against Plaintiff for similar reasons.  Defendant’s attorney had produced a video made by Defendant’s expert late according to the rules.  Although the video was produced late according to the technical letter of the law, it was produced eight months before trial.

Rather than taking any action to remedy the tardiness issue, Plaintiff’s attorney waited until a week before trial to object to the video – a clear attempt at a “gotcha.”  The Judge denied Plaintiff’s motion to exclude the video, and allowed Defendant’s expert to use the video.  Judge Benson stated that Plaintiff’s attorney had been in the possession of the video for so long that Plaintiff could not have been prejudiced, and that if Plaintiff felt it was prejudiced, it should have taken action during the intervening time period.

I think there are two lessons to be learned from this experience: 1) Supplement your discovery responses early and often; and 2) If you have a problem, take it up with the Court as soon as possible and do not sit back to try to wait on a “gotcha” ruling from the Court, because you may not get it.

I get questions all the time about the enforceability of noncompetes in Texas.  I have to respond in the most-irritating lawyer-like way possible: I say that the enforceability of any particular noncompete all depends on the language of the noncompete and the facts of the case.  That response predictably results in a long period of silence.

There is ample Texas case law enforcing noncompetes against former employees to prevent former employees from competing.  In these cases the employers successfully have demonstrated that there is a threat to the employers’ business interests through the disclosure of confidential information or damage to company good will.  There also is a lot of seemingly irreconcilable Texas case law where the courts have refused to enforce noncompetes to prevent former employees from competing where the employers offered proof that former employees had confidential information and were in a position to use the confidential information to the employers’ detriment.

Legally speaking, Texas has a statute that allows an employer to enforce a noncompete when what would otherwise be a restraint on trade is necessary to protect a legitimate interest of the employer.  In Texas, a legitimate interest of the employer could be (1) preventing the disclosure of confidential or proprietary information; or (2) protecting company good will.  Contrary to what a lot of people believe, the enforceability of a noncompete is not dependent on the employer paying the employee compensation that is tied to the noncompete, and is independent from the reason that the employee’s relationship with the employer ended.

In my practical experience I have found that judges in general do not like noncompetes.  They do not like the idea of putting a person out of work, unless the facts particularly justify the extraordinary step of entering a injunction.  You can get a sense of the courts’ uneasiness with noncompetes in the Dallas Court of Appeals recent decision affirming a trial court’s denial of the employer’s request for a temporary injunction in BM Medical Management Service, LLC v. Turner.

Turner had a one-year noncompete that prohibited him from working in a competing business, soliciting BM Medical’s clients, recruiting or hiring BM Medical’s employees, or disclosing BM Medical’s confidential information.  BM Medical fired Turner, and a month later he went to work for a competitor.  Despite having access to BM Medical’s client list of over 1600 customers, the trial court denied BM Medical’s request for a temporary injunction to prevent Turner from soliciting BM Medical’s clients.  The court found that BM Medical failed to prove that Turner “possessed, used or disclosed any confidential information and if failed to prove that Turner was soliciting its clients.”  One BM Medical client did follow Turner to his new employer, but the Dallas Court of Appeals noted that this single client was a “good friend of Turner’s whom Turner had known before he went to work for BM Medical.”

Notably, BM Medical only sought to prevent Turner from contacting BM Medical’s clients (and not enforcement of the outright ban on any competition), and from disclosing BM Medical’s confidential information. But even limiting its request for relief was not enough to satisfy the court.  Presumably the result would have been different if BM Medical had established that Turner actually solicited BM Medical’s clients, or if BM Medical had shown that the information that Turner had was particularly sensitive to BM Medical’s business interests.

Based on the court’s conclusion, I get the impression that neither the trial court nor the court of appeals thought that Turner was a threat to BM Medical’s business interests.  So if you want to enforce a noncompete in Texas, here are some important considerations to maximize your chances of having the judge agree with you:

  • Spell out for the judge the actual threat that the former employee poses to the business interests of the employer.  The degree to which an employer wants to restrict a former employee from competing is directly related to the actual threat that the former employee poses to the business’s legitimate business interests. For example, a sales employee who is terminated for poor performance probably does not pose an actual threat to the employer’s existing sales.
  • Explain to the judge what relief you need to address the actual threat posed by the former employee.  The restrictions that the employer seeks to enforce against a former employee must be tied closely to the actual threat to the employer’s legitimate business interests.  An employer’s desire to restrain all competition is not a legitimate business interest, and an outright ban on all competition everywhere rarely is closely tied to the actual threat posed by the former employee to the employer’s legitimate business interests.
  • Judges do not like noncompetes.  When asking for temporary relief, give the judge way to overcome this dislike of noncompetes by asking for the bare minimum of what you need to address the actual threat.  If you can ask for relief that allows the former employee to continue to work, even better.  As an example, courts seem more willing to restrict a former employee from soliciting actual clients with whom the former employee had contact as a result of the employer, but not so willing to restrict a former employee from soliciting any and all of the company’s customers regardless of whether the former employee knew about the customers.

And if you ask me if noncompetes are enforceable in Texas, I will probably say “It depends…”

 

I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

Previously I posted about Dallas County juries here and hereLast week a federal jury ordered Johnson & Johnson to pay $1.041 billion to six plaintiffs who received defectively-designed hip implants.   Of the total verdict, $32 million was for compensatory damages, and the rest was for punitive damages. The federal jury that ordered Johnson & Johnson to pay a billion dollars was made up of jurors from the Northern District of Texas, which includes more than just Dallas County.  But Dallas County is the largest county in the Northern District of Texas, and I believe that the jury’s verdict is further proof that Dallas County jurors believe that civil lawsuits are an appropriate way to monitor and police large corporations.

When I first started practicing law in Dallas in the early 1990s, the prevailing sense around the campfire was that Dallas County was a pro-defense venue.  Over the years there have been some huge verdicts out of Dallas County in business disputes and commercial matters, but it seemed to most observers that personal injury plaintiffs did not fair as well in Dallas County.  In my earlier posts I gave my two-cent opinion that Dallas County was no longer pro-defense, or even neutral, because of the increasing frequency of eye-popping verdicts in personal injury cases.  In September, Bloom Strategic Consulting published a report of a survey that it conducted of 1000 prospective Dallas County jurors.  I wrote about the survey’s results in my first post about Dallas County jurors, and I believe that this report should be required reading for any lawyer with a case pending in Dallas County.  Based on what I have been seeing lately, I think that Dallas County is pro-plaintiff.

For Johnson & Johnson, I expect that the federal judge will reduce the punitive damages award to confirm with Texas’ cap on punitive damages, especially considering that the award of compensatory damages ($32 million) is approximately three percent of the overall verdict.  However, the fact that Johnson & Johnson may never have to pay a billion dollars to the plaintiffs from last week’s verdict should not be confused with the message that the jury seemed to send to Johnson & Johnson, and what that message says about Dallas County juries.

I recently had a trial that caused me to think long and hard about what is the best evidence at trial.  I concluded that documents, photos and videos beat witness testimony hands down. I believe that a case built around documentary evidence is stronger than a case build on witness testimony.

I think the reason is simple.  With documentary evidence, jurors can look at documents and form their own opinions about what the documents say and mean.  Jurors are savvy enough nowadays to suspect that the lawyers in the case will try to bamboozle the jurors into concluding that the documents say something that the documents don’t say.  If the jurors’ conclusions about the documents are consistent with the trial lawyer’s arguments, the jurors will form other conclusions consistent with the trial lawyer’s argument.  If the jurors’ conclusions about the documents conflict with the trial lawyer’s arguments, then the jurors will conclude that the lawyer is trying to trick them and they will be suspicious of the lawyer for the rest of the trial. I believe that jurors form conclusions about the documents, photos, and videos in the case, and then evaluate the witnesses and lawyers against those conclusions.

Witness testimony is inherently unreliable.  Countless studies show that two witnesses can view the exact same incident and come away with two different versions of what happened.  Jurors already know this.  Neither witness is lying, but unlike documentary evidence that does not change, inconsistency in witness testimony means that the jurors will have to decide which witnesses’ testimony is consistent with the jurors’ own perceptions of what happened.  Also, witnesses are subject to cross examination.  If the jurors trust the lawyer, then an effective cross examination can be brutal.  If the jurors do not trust the lawyer, then cross examination can generate juror sympathy for the witness.  Witness testimony comes to the jurors through the questions and answers provided by the lawyers and the witnesses.  In the end jurors have to evaluate the witnesses’ testimony against other witnesses, the lawyers, and the jurors’ conclusions drawn directly from the documents.

Documents, photos and videos that are entered into evidence go back to the jury room and jurors are encouraged to review all the evidence during deliberations.  Live testimony depends on the ability of the jurors to recall what was said among several witnesses and at times several days ago.  Like everyone else, two jurors may not remember the testimony the same way, and now the jurors must resolve the their own  inconsistent memories.  I believe that instead of resolving these inconsistencies, jurors tend to focus on the documentary evidence that they have with them in the jury room.

So back to my recent trial.  In that case, there were emails that on their face were not good for my client’s case.  We knew that we could explain our side of the emails, and we had great witnesses to do just that.  The other side had witnesses who testified consistently with the emails.  After the trial the judge permitted us to talk to the jurors.  All 12 of the jurors told us that they liked our witnesses, but that the jurors felt that the emails told the story.  There was no mention of the other side’s witnesses.  Our witnesses were good, but not good enough to overcome the jurors’ conclusions about the emails.

What is the best evidence at trial?  Documents.  Jurors can touch them, look at them, and reach their own conclusions about them.

According to Bloom Strategic Consulting, Dallas County juries distrust corporate America, believe that litigation is an effective way to police corporate abuse, and in general agree that juries award the right amount of damages.

Yesterday I came across this report published by Bloom Strategic Consulting, which I found fascinating.   Bloom asked approximately 1,000 prospective Dallas County jurors about their perspectives on litigation.  The results of the project showed that overall 70% the prospective jurors agreed that lawsuits are a good way to keep companies honest.  Interestingly, 80% of the respondents between the ages of 18 and 30 agreed that lawsuits are a good way to keep companies honest.

Among African Americans, 76% of the respondents agreed that company policies are not applied equally among all employees.

Three out of 4 respondents agreed that too many people are using lawyers to get away with wrongful conduct.

Among all respondents, only 34% agreed that people who file lawsuits against companies are just trying to get some money that they do not deserve.   Only 16% of the African American respondents agreed that people who file lawsuits are trying to get money that they do not deserve.  Consistent with these responses, 56% of the respondents felt that the monetary damages awarded by juries was “about right.”  Bloom further broke down the respondents to the damages question by sex and age.  Males felt that juries got it “about right” 49% of the time, while females trusted that juries awarded the right damages 62% of the time.  The respondents over age 65 felt that juries got the damages right only 35% of the time.

I love statistics like the ones reported in the Bloom report.  To me, the most important take away is that prospective Dallas County jurors in general tend to be more distrustful of corporate America than I might have expected.  Notwithstanding tort reform, Dallas County jurors believe that juries award the right amount of damages.  According to Bloom’s results, these trends are tied to age and sex, with younger jurors and female jurors believing that lawsuits are an effective way to reign in corporate America.