Strategic Lawsuits Against Public Participation (“SLAPPs”) are meritless lawsuits designed to stifle the lawful exercise of First Amendment rights. Rather than seeking to right a legal wrong, SLAPPs are meant to retaliate against individuals, organizations, or companies for exercising their constitutionally protected rights of free speech, rights to petition, or rights of association.
The Texas Citizens Participation Act protects victims of SLAPP suits by establishing a special motion to expeditiously dismiss meritless lawsuits as well as providing attorney’s fees and sanctions to a successful movant.
Throughout the state, business organizations across a wide range of sectors have used the TCPA to obtain dismissal of meritless litigation aimed at suppressing and retaliating against their exercise of First Amendment rights.
A former employee of ExxonMobil Pipeline Company brought an action for defamation against his former supervisors and employer, alleging that the supervisor made false statements about his failure to perform a required safety check of certain equipment, which resulted in his termination. The Texas Supreme Court held that the TCPA applied to protect the employees and the company against the meritless lawsuit, and that dismissal was appropriate under the TCPA. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017).
In response to patient complaints, administrators at Memorial Hermann Hospital announced that plaintiff Samia Khalil, a pediatric anesthesiologist, was no longer able to practice medicine at the hospital. Plaintiff sued the hospital for defamation and other claims in response. The First Court of Appeals in Houston held that the lawsuit was in response to the hospital’s exercise of the right of free speech and that Dr. Khalil could not establish that her claims against the hospital had merit, because the allegedly defamatory statements were subject to a statutory immunity protecting actions taken in the course of medical peer reviews. Memorial Hermann Health Sys. v. Khalil, 2017 WL 3389645 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017); see also Batra v. Covenant Health Sys., 07-18-00012-CV, 2018 WL 4906004, at *13 (Tex. App.—Amarillo Oct. 9, 2018, pet. filed), reh'g denied (Nov. 5, 2018) (affirming dismissal under the TCPA of gastroenterologist’s defamation lawsuit against hospital following hospital’s decision to denial of application for renewal of medical staff privileges).
A distributor and retailer of lumber and building materials filed a report with law enforcement after a customer repeatedly threatened to shoot employees and customers if his order was incorrect. That customer was charged with the misdemeanor crime of making a terroristic threat and sued the company and certain employees in response for defamation and other causes of action stemming from the police report. Defendants successfully moved to dismiss under the TCPA. Wade v. BMC Stock Holdings, Inc., No. 2018-57532, 11th Dist. Ct., Harris County, Tex. (2018).
Following an incident at a branch of LegacyTexas Bank in which plaintiff James Harlan allegedly harassed bank employees, the bank issued a letter requesting that Harlan refrain from using LegacyTexas banking centers. Harlan responded by suing the bank for defamation and several other causes of action. Because he was unable to establish that his claims had any merit, LegacyTexas was entitled to dismissal and an award of attorney’s fees and sanctions against the plaintiff. LegacyTexas Bank v. Harlan, 2018 WL 2926397 (Tex. App.—Dallas June 7, 2018).
A real estate agent sued Joshua Campbell, an individual, based on Campbell’s internet post detailing a negative experience with the plaintiff. The agent also sued Campbell’s former employer, Affiliated Bank, asserting claims of negligent hiring and vicarious liability for Campbell’s allegedly tortious conduct. Both defendants moved to dismiss under the TCPA asserting the suit was based on their exercise of the right of free speech. The trial court granted this motion, dismissed the agent’s claims, and awarded attorney’s fees. The parties entered a Rule 11 agreement that the defendants would not seek to recover the awarded attorney’s fees and the agent would not appeal the trial court’s order. The agent appealed anyway, and on appeal, the court of appeals ultimately enforced the Rule 11 agreement. Parks v. Affiliated Bank, 05-16-00784-CV, 2018 WL 2057545 (Tex. App.—Dallas May 3, 2018, pet. denied) (mem. op.).
In Landmark Technology, LLC v. eBay, Inc., Landmark sued eBay for exercising its right of petition after eBay requested reexamination by the United States Patent and Trademark Office of several of Landmark’s patents. Landmark asserted various state tort claims based upon eBay's requests to the PTO. eBay did not wait to be served before filing a TCPA motion, contending that Landmark sued it for exercising its right to petition and right of free speech. Shortly after eBay filed its motion, Landmark dismissed its case. eBay sought fees for the cost of bringing the motion. The case ultimately settled. Landmark Tech., LLC v. eBay, Inc., No. 2:14-CV-00605, 2014 WL 1831621 (E.D. Tex. May 8, 2014).
After several individual employees left McDonald Oilfield Operations, a pipeline inspection company, to work at a competitor, McDonald sought to recover proprietary software and equipment that the former employees had retained after their departure. McDonald ultimately filed a police report for stolen property, and the competitor responded by suing McDonald for defamation and related claims. McDonald was able to establish that dismissal of these claims was warranted because the claims were brought in response to the exercise of its speech rights, and Plaintiff could not demonstrate that its claims had any merit. McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, 2018 WL 6377432 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018).
A gas station attendant told law enforcement officers that a customer was attempting to steal gas. After the resulting charges against the customer were dropped, the customer sued the attendant and the corporate owner of the gas stations for malicious prosecution, defamation, false imprisonment, and negligence. The defendants filed a TCPA motion to dismiss asserting that the suit was based on their right to petition. The trial court denied the motion, but on appeal, the court of appeals reversed, dismissed all of the customer’s claims, and remanded the case to the trial court for a determination of attorney’s fees and costs. Murphy USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 WL 5800263, at *7 (Tex. App.—Tyler Oct. 5, 2016, no pet.) (mem. op.).
A husband and wife filed complaints to the TCEQ regarding plaintiff Comal Ag’s septage application practices near their home. Comal Ag brought a defamation claim against the individuals and, because those individuals sent their complaint emails from their respective places of employment, against their employers as well. Defendants and their employers were able to utilize the TCPA to obtain prompt dismissal of their claims. Comal Ag Operations, LLC v. Kelley, 2018 WL 842753 (Tex. App.—San Antonio Feb. 14, 2018).
In Breviloba, LLC v. H&S Hoke Ranch, LLC and Capital Farm Credit, FLCA, a pipeline company filed an eminent domain lawsuit to acquire certain pipeline easements. The defendant landowner filed a counterclaim for fraud and conspiracy to commit fraud against the plaintiff and its parent company relating to alleged false representations made about their power of eminent domain. Plaintiff and its parent company filed a motion to dismiss under the Texas Citizens Participation Act, which the trial court granted on January 28, 2019. Breviloba, LLC v. H&S Hoke Ranch, LLC and Capital Farm Credit, FLCA, Cause no. 12831-CV, Walker County Court at Law (Jan. 28, 2019).
Consumer protections groups like the Better Business Bureau also count on the TCPA to fend off meritless litigation in response to bad ratings or reviews. For example:
Claims against BBB of Austin were dismissed in a lawsuit brought in response to the plaintiff’s poor business rating. Davis & Jones v. Better Business Bureau of Austin, Inc., No. 348-288454-16, 348th Dist. Ct., Tarrant County, Tex. (2017).
A law firm and attorney brought a defamation claim arising out of the Dallas BBB’s assignment of “F” rating, which was ultimately dismissed under the TCPA. Better Bus. Bureau of Metro. Dallas, Inc. v. Lloyd Ward, 401 S.W.3d 440, 444 (Tex. App.—Dallas, pet. denied).
A home repair and maintenance company’s claims against BBB for receiving an “F” rating were dismissed as meritless under the TCPA. Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).