Has the Anti-SLAPP statute lost its sting?

Since its enactment in 2011, the Texas Citizens Participation Act (TCPA) has increasingly been used as an early defense towards lawsuits that far exceeded its original intent. Starting on September 1, 2019, this may change with the revamped TCPA, that the Texas legislature recently approved. These updates have created much speculation on whether the number of TCPA motions filed in Texas will reduce over time.

The TCPA seeks to “encourage and safeguard the constitutional rights” of people to “petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.” The newly revised legislation narrows the scope and breadth of the statute by making changes to the definitions of what it covers as well as procedural aspects of how it applies.

Definitions

First, the “exercise of right of association” has been narrowed to matters relating to a governmental proceeding or a matter of public concern.  The new version of the TCPA expressly excludes a governmental entity, agency, or an official or employee acting in an official capacity from invoking the protections of the TCPA.

Second, the term “legal action” has been redefined to exclude both alternative dispute resolution proceedings and post-judgment enforcement actions. Additionally, the new version of the TCPA does not apply to certain causes of action including: non-competes and non-disparagement claims, trade secret misappropriation, common law fraud, attorney discipline matters, and claims under the Texas Deceptive Trade Practices Act. However, in an effort to balance out the removal of the many ways the TCPA was previously used, the new version does apply to claims for declaratory relief.

Next, the meaning of “matter of public concern” has been rewritten more broadly to include statements or activities about: public officials, public figures, or other persons who have drawn substantial public attention due to their official acts, fame, notoriety, or celebrity as well as matters of political, social, or other interest to the community and subjects of concern to the public. This general language replaced specific examples of what constituted matters of public concern in the previous version of the statute.

Procedures

The revamped TCPA places a lower burden on the moving party by only requiring a showing that the legal action in question is covered by the TCPA. The original version required a movant to demonstrate by a “preponderance of the evidence” that the legal action fell under one of the protected rights.

Additional changes to the TCPA bring it more in line with the standards applied to the existing summary judgment rules. For example, the statute now states that the court can consider the type of evidence that would be admissible in a motion for summary judgment proceeding under Rule 166a of the Texas Rules of Civil Procedure. The statute now also incorporates the same deadlines as the summary judgment rules relating to notice of hearing (21 days) and deadline for filing a response (7 days before the hearing).

One interesting change to the statute attempts to relax the rigid deadline for when a TCPA motion can be filed. Under the original legislation, a defendant had to file its TCPA motion within 60 days of receiving service of the underlying claim. Under the new TCPA, the parties may extend the deadline to file a motion by agreement — it remains to be seen if such agreements will ever be reached.

Finally, as modified, the TCPA still provides for the mandatory award of attorney’s fees to the moving party who prevails on its motion, but an award of sanctions against the party who brought the legal action is now discretionary.

While a TCPA motion is a popular early defense towards lawsuits, it remains to be seen if these changes will reduce the number of TCPA motions that get filed in Texas.