Is a Pre-suit demand a set up for an Anti-Slapp Motion under the Right to Petition?

So you are in a dispute with another party and they send you a pre-suit demand? You end up suing and the defendant files a Texas Anti-Slapp motion arguing your lawsuit is in response to their pre-suit demand and thus violates the Right to Petition. Does that argument have legs? Dallas and Houston COAs have said NO, because there is no pending judicial proceeding. QTAT BPO Solutions, Inc. v. Lee & Murphy Law Firm, G.P, 524 S.W.3d 770 (Houston COA 2017) sets out the holding, previously established by the Dallas COA in Levatino v. Apple Tree Cafe’ Touring, Inc.,486 S.W.3d 724 (Dallas COA 2016).

But not so fast, because the Austin COA, in Long Canyon Phase II & III Homeowners Ass'n, Inc. v. Cashion, 517 S.W.3d 212 (Austin CAO 2017.), agreed with Levatino, but analyzed 27.001(4)(E) to determine that a while a demand letter does not apply if there is no pending judicial proceeding, it falls within “any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.”

Until the TSC weighs in, this will remain an unsettled area of law and demonstrates the breadth and difficulty courts are having with the Texas Anti-Slapp.

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