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. https://www.antislapptexas.com/blog/2018/12/30/the-texas-anti-slapp-and-federal-courts

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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The Texas Anti-Slapp and Federal Courts

Given my prior post about the Stormy Daniels decision, it might come as a surprise that the applicability of the Texas Anti-Slapp statute in federal court proceedings is currently an open question in the Fifth Circuit. While California and the Ninth Circuit are allowing application of Anti-Slapp statutes, District Courts across Texas are struggling with whether to apply the Texas Anti-Slapp’s dismissal procedures and attorneys’ fees award. Two cases are currently before the Fifth Circuit that should resolve the issue in 2019, Klocke v. Watson (No. 17-11320) and Van Dyke v. Retzlaff, (18-40710).

Hope for guidance from SCOTUS ended on December 3, 2018, when it denied a petition for certorari from the Tenth Circuit in AmeriCulture Inc. v. Los Lobos Renewable Power, LLC, No. 18-89. This leaves standing the 10th Circuit’s refusal to apply the New Mexico Anti-Slapp statute in federal court.


Less than two weeks after SCOTUS denied the cert petition in AmeriCulture, the Eleventh Circuit aligned itself with the Tenth Circuit in concluding the Georgia Anti-Slapp statute did not apply in federal court. David M. Carbone v. Cable News Network, No. 17-10812. 


The Carbone opinion reviews the circuit split on Anti-Slapp statutes and will undoubtedly impact the Fifth Circuit’s analysis.

It will be interesting to see where the Fifth Circuit comes down on the issue. Regardless, the Circuit Court splits won’t be resolved until SCOTUS addresses the issue.


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