Well sports fans, it appears the Texas Anti-Slapp is destined for some significant changes. HB 2730 passed out of the Senate and is now headed to Gov. Abbott for signature. If signed, the new changes will only apply to cases beginning on Sept. 1, 2019. Once signed, the Courts may see a slow down of cases that might get bogged down in Anti-Slapp battles, with a flood of commercial cases filed on or after September 1.
There are some things to cheer in this bill for Texas practictioners, including:
Timing components related to the hearing and filing a response
Cleans up the affirmative defense standard
Clarifies the evidentiary standard - now it is the same as under a Tex. R. Civ. P. 166a standard
I’ll withhold a more in depth discussion until it’s signed, but there are a significant number of new exemptions, for example Texas Anti-Slapp will not apply to Deceptive Trade Practice claims, lawyer discipline cases, misappropriation, trade secret, or non-compete claims, and common law fraud claims, just to name a few.
Two of the bigger changes in my opinion, are to the definitions of “right of association” and “matter of public concern. As consistent readers know, the Texas Supreme Court has not weighed in on what ROA means, and ROA is where a lot of the expansive application of the Texas Anti-Slapp has occurred.
The new definitions are:
(2)"Exercise of the right of association" means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.
(7) Matter of public concern" means a statement or activity regarding: (A) public official, public figure, or other person who has drawn substantial public attention due to the person ’s official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public
I’m not sold that the COAs or the TSC are going to be wild about defining what is of “interest to the community” or of “concern to the public.” Expect commercial fights to focus on the exemptions going forward, at least with regard to ROA.
But ambiguity is grist for the mill of a Texas Anti-Slapp blogger.