Will the Atomic Bomb the Ft. Worth COA Just Dropped on Texas Anti-Slapp’s Right of Association Definition be the Tail that Wags the Dog up to the Texas Supreme Court?

Thethird 2019 Texas COA opinion comes from the Fort Worth COA in Kawcak v. Antero Resources Corporation,  Ca. No. 02-18-00301-CV (Ft. Worth COA 2019) and it takes on the issue of whether the Right of Association (“ROA”) definition  under the Texas Anti-Slapp covers conspiracy claims.  To get the references to “atomic bomb” and dog tail references you will have to read the opinion in full.  But it might be the first time those two references are contained in the same COA opinion.

             Readers of this blog know that the Texas Supreme Court has yet to address how far the ROA reaches under the definition of the Texas Anti-Slapp statute, which states: 

 "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

  The Fort Worth COA, in what is truly an issue of first impression, proceeds through a scholarly analysis of the dictionary definition of “common” along with an analysis of other COAs that have addressed “right of association” to determine that:

 “In a matter of first impression, we interpret the word “common” to have a plain meaning that implicates more than the narrow selfish interests of persons who act jointly to commit a tort. Because Kawcak concedes that his interest is shared only by himself and his alleged co-conspirator, we conclude that the TCPA does not apply to this lawsuit and affirm the trial court’s denial of the motion to dismiss.”

  Undoubtedly, this decision will get appealed to the TSC and perhaps we will finally get their take on the scope of ROA.  More importantly, will other COAs adopt this rationale in the interim?

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