Three New Opinions on Texas Anti-Slapp, including the Dallas COA finally getting on the board in 2019.

The week of February 25, 2019 was relatively busy for Texas Anti-Slapp opinions, but no new ground was broken.

First up, Judge David Godbey of the US. NDTX weighed in on his view that the Texas Anti-Slapp does not apply in federal court for similar reasons discussed in prior posts. See William Noble Rare Jewels, L.P. v. Sky Global L.L.C. & Ryan Rich, 2019 WL 935954 (NDTX Feb 2019)..

Second, the Tyler COA issued another opinion applying Texas Anti-Slapp to a hospital lien dispute but determining the commercial speech exemption applied. See Keantae Berry v. ETX Successor Tyler F/KA Texas Medical Center, NO. 12-18-00095-CV (Tyler COA Feb. 2019).  This is the second opinion following the same analysis and the second loss for the same hospital trying to use the Texas Anti-Slapp to defeat hospital lien disputes.  ETX Successor Tyler f/k/a East Texas Medical Center v. Terrie Pridgeon, as Guardian of the Person and Estate of Jason C. Dubos, NO. 12-18-00083-CV, 2019 WL 623603 (Tyler COA 2019).

Lastly, the Dallas COA rejected an appeal of the grant of a Texas Anti-Slapp motion dismissing IIED and defamation claims.  See Keisha Pope-Nixon v. Jeanine Howard and Alvin Green, DC-18-02907 (Dallas COA 2019). The trial court had not yet determined the issue of attorneys’ fees when the non-movant filed the appeal.  On a request for briefing from the parties, the non-movant took the position that the trial court’s order resolved the dispute in its entirety and failed to rule on the attorneys’ fees during the thirty (30) day statutory window.  While I did not pull the briefing, my educated guess is the non-movant was trying to argue (or set up an argument for later use) that the attorneys’ fees should be denied based on the lack of a timely ruling.

This is not the first time I’ve seen this argument on the timing of the ruling on attorneys’ fees raised and rejected.  It appears that non-movants are trying to use this as a tactic neutralize potential fee awards.  Nonetheless, the Dallas COA did not take the bait and determined that it lacked jurisdiction because the issue of attorneys’ fees remained outstanding.

Not only has non-movant potentially increased the amount of fees she will ultimately be responsible for, this trip to the COA has caused a further delay in a final resolution (and potentially set up another trip to the Dallas COA, and perhaps beyond).

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While We Wait for the Fifth Circuit's Ruling on Whether Texas Anti-Slapp Applies in Federal Court, What is the 2018/19 Trend in Texas Federal District Courts?

One of my first blog posts dealt with application of the Texas Anti-Slapp in the Fifth Circuit.

The Fifth Circuit has at least two cases fully submitted that may finally decide the issue. Until then, a look at twelve 2018/19 District Court opinions shows it depends on the district you are in and the judge you draw as to whether the TCPA will be applied.

Off the cases I located, here’s the score card:

7 times Court’s held the TCPA does not apply in federal court.

3 times the Court held the TCPA did apply.

2 times were effectively no decisions where the Court assumed, without deciding, it applied.

SD TX — 2 apply, 1 no decision, 1 does not apply

ED TX — 3 does not apply,

WD TX — 2 does not apply

ND TX — 1 apply, 1 no decision, 1 does not apply

Make sure to vet your Judge’s opinions on Texas Anti-Slapp, there are clear patterns for certain courts.

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How a Presidential Antagonist and Presidential Donor Both Got Anti-Slapped in 2018!

Recently, the Texas Anti-Slapp exploded onto the national scene when the Stormy Daniels defamation lawsuit against President Donald J. Trump was dismissed pursuant to the statute.  President Trump was awarded almost $300,000 and $1,000 in sanctions in a lawsuit filed in the United States District Court, Central District of California.

But this fee and sanction award pales in comparison to the almost $2,000,000 in Anti-Slapp attorneys’ fees awarded against casino magnate and President Trump donor Sheldon Adelson. The Adeslon decision was based on the Nevada Anti-Slapp statute and entered in the United States District Court, Southern District of New York.

Two takeaways from these decisions are: (1) an Anti-Slapp statute can reach beyond the home state’s border; and (2) attorneys’ fees can quickly rack up in Anti-Slapp battles.