While finding that a statement in a cease-and-desist letter fell within the scope of the TCPA, the Fifth Court found a failure to state an actionable claim in response to a TCPA dismissal motion. As to tortious interference, the plaintiff’s damages allegations fell short of Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV, 2017 WL 2118787 (Tex. App.—Dallas May 16, 2017, pet. filed); as to the tort of “invasion of seclusion,” the allegations failed because “[s]everal courts, including our own, have consistently held that an intrusion upon seclusion claim fails without evidence of a physical intrusion or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.” Morales v. Barnes, No. 05-17-00316-CV (Dec. 29, 2017) (mem. op.)

“Important Industry News Alert” = Defamation?

slapp graphicSecurus sued GTL for defamation and business disparagement, alleging that two “Important Industry News Alert” emails from GTL misrepresented the status of certain patents. The Fifth Court reversed the denial of GTL’s anti-SLAPP motion, finding that Securus failed to show that the “commercial speech” exception to the statute applied, and that substance of the emails was either opinion, or too general to have led a reasonable person to confldue that they addressed “any particular facility or recipient.” As to the commercial speech exception, the Court expressly declined to follow a “four prong” test followed by Houston’s Fourteenth Court of Appeals in Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.–Houston [1st Dist.[ 2013, pet. denied), concluding that this test over-relied on a statute unique to California. Global Tel*Link v. Securus Corp.. Securus Corp., No. 05-16-01224-CV (July 31, 2017) (mem. op.)

NDA outweigh TCPA? Nay.

slapp graphicEmergency Medical Training Services sued Sheila Elliott for breaching various non-disclosure obligations in her complaints to state regulators. Elliott moved to dismiss under the Texas anti-SLAPP statute; the district court denied her motion, and the Fifth Court reversed and remanded for dismissal of the case in her favor.

The Court used a standard two-step analysis. As to the first step, Elliott met her burden to show that EMTS’s claim was based on her exercise of free speech rights – a matter, the Court ruled, that was not affected by whether she had entered an NDA. As to the second step, EMTS failed to meet its burden to establish a prima facie case fo each element of its contract claim, as its evidence of damage was too conclusory. Elliott v. S&S Emergency Training Solutions, Inc., No. 05-16-01373-CV (May 16, 2017) (mem. op.)

“True crime” shows and the anti-SLAPP statute

Jones sued a TV production company, alleging that he was shot at and received death threats as a result of his appearance (even tslapp graphichough blurred and voice-altered) on “The First 48,” a show about homicide investigations. The company did not prevail on its motion to dismiss based on the Texas anti-SLAPP statute: “The plain language of section 27.010(c) excludes legal actions seeking recovery for bodily injury. . . .  Mr. Jones’s negligence claim seeks to recover for the bodily injuries—four gunshot wounds—that he claims he sustained as a result of Kirkstall’s negligence in editing and producing its program. Without expressing any opinion on the merits of his claim, we conclude that Mr. Jones has shown that it is exempted from application of the TCPA.” Kirkstall Road Enterprises v. Jones, No. 05-16-00859-CV (April 27, 2017).

Anti-SLAPP motion denied; 5th Court reverses.

slapp graphicThe case of MacFarland v. Le-Vel Brands involved a blog post on the website “Lazy Man and Money,” which was critical of a multi-level marketing company that sells dietary supplements. The trial court denied the defendant’s motion to dismiss under the Texas anti-SLAPP statute and the Fifth Court reversed, finding: (1) the suit involved the blogger’s speech; (2) the “commercial speech” exception did not apply; and (3) the plainTexasBarToday_TopTen_Badge_VectorGraphictiff could not establish damages for either business disparagement or defamation. (On that subject, compare the recent case from the Fifth Court of Glassdoor v. Andra Group, which did find sufficient evidence of damage.) The opinion carefully reviews the leading recent authorities on the scope of these provisions of the statute. The case was remanded for further proceedings, including consideration of the defendant’s attorneys’ fees and costs. No. 05-16-00672 (March 23, 2017) (mem. op.)

Rule 202, anonymous Internet postings, and anti-SLAPP

firstamendment_0 (1)In Glassdoor Inc. v. Andra Group LP, the Fifth Court affirmed an order granting a Rule 202 petition about online reviews of a business as an employer, offering several pointers for the handling of such petitions:

  • The trial judge limited the scope of the examination to two posts, and specific items within them;
  • The movant established its potential business disparagement damages with three affidavits about the effect of the posts on its recruiting;
  • The statements at issue went beyond “hyperbole or mere personal opinion” to make specific “accusations of illegal conduct that are capable of being proved true or false”; and
  • The First Amendment rights of the anonymous reviewers to speak anonymously “must be balanced against the right of others to hold accountable those who engage in speech not protected by the First Amendment.”

A “mirror image” anti-SLAPP motion was properly rejected for the same reasons that the Rule 202 petition was granted. No. 05-16-00189-CV (March 24, 2017) (mem. op.)

A Wiki Too Far

In D Magazine Partners LP v. Rosenthal, reviewing the work of the Dallas Court of Appeals in a high-profile anti-SLAPP case, the Texas Supreme Court observed about Wikipedia:

“Given the arguments both for and against reliance on Wikipedia, as well as the variety of ways in which the source may be utilized, a bright-line rule is untenable. Of the many concerns expressed about Wikipedia use, lack of reliability is paramount and may often preclude its use as a source of authority in opinions. At the least, we find it unlikely Wikipedia could suffice as the sole source of authority on an issue of any significance to a case. That said, Wikipedia  can often be useful as a starting point for research purposes. In this case, for example, the cited Wikipedia page itself cited past newspaper and magazine articles that had used the term ‘welfare queen’ in various contexts and could help shed light on how a reasonable person could construe the term.”

But, as a matter of the relevant substantive law, and the nature of Wikipedia, twikipedia-logo_1he Texas Supreme Court found overreliance on a Wikipedia entry when “the court of appeals utilized Wikipedia as its primary source to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article’s gist. Essentially, the court used the Wikipedia definition as the lynchpin of its analysis on a critical issue. . . . ”

Accordingly, Dallas-area practitioners should pay special attention to these statements, if online resources such as Wikipedia play more than a general background role in a legal argument. 

Libel Strikes Back.

imperial walkersPlaintiffs sued for libel, based on four articles in the Korea Town News (N.B. – Dallas has the largest Korean-American community in Texas). Unfortunately, the TCPA “anti-SLAPP” statute applied, because the articles dealt with “the proposed sale of an office building . . . for use as a community center, which would be purchased “in part with funds raised by the public.” And the statements at issue were not actionable, as they “the majority of these statements concern the value of the building . . . the appraisal value of the building, the purchase price, and its market value.” Accordingly, the Fifth Court affirmed the dismissal of Plaintiffs’ claim — and the resulting award of attorneys fees under the TCPA. Mansik & Young Plaza LLC v. K-Town Management LLC, No. 05-15-00353-CV (Aug. 15, 2016) (mem. op.)

anti-SLAPP happy court dismisses claims for defamation arising from judicial proceeding


In Watson v. Hardman, the Dallas Court of Appeals reversed a trial court’s refusal to dismiss defamation claims under the Texas anti-SLAPP statute.

The facts were tragic. A car accident took the lives of a married couple, who both had children from prior marriages. The Hardmans, relatives of the husband, set up “go fund me” pages to benefit the surviving children. Watson, the father of one of the surviving children, filed a Rule 202 petition to investigate claims that the Hardmans had stolen some of the donations. The Hardmans then sued Watson for defamation for statements in the 202 petition and alleged rumors in the community suggesting the Hardmans stole donations. The trial court denied an anti-SLAPP motion to dismiss, which asserted that any alleged statements were protected as an exercise of the right to petition or right to free speech.

The Dallas Court of Appeals reversed, holding that allegations in the 202 Petition were the “exercise of the right to petition” because they were “a communication in or pertaining to … a judicial proceeding,” which are subject to an absolute privilege. The Court specifically rejected arguments that the statements in the judicial proceeding had to concern anything of public interest.

In addition, allegations outside of the 202 Petition were also protected “exercise of the right of free speech” because they related to community well-being, specifically the well-being of people who made donations and of the intended beneficiaries. The Dallas Court of Appeals remanded to the trial court for consideration of a motion by the Hardmans to conduct additional discovery relating to other statements outside of the 202 Petition pursuant to § 27.006(b). So the Hardmans may yet have the opportunity to discover and respond with a prima facie case for defamation showing when, where, and what was said, the defamatory nature of the statements, and how they damaged the Hardmans.  

Watson v. Hardman

SLAPP at what?

slapp graphicIn a companion to the high-profile libel case of Tatum v. Dallas Morning News, the Fifth Court addressed the “anti-SLAPP” dismissal of the Tatum’s suit against Julie Hersh, a book author who allegedly discussed the subject of the offending column with columnist Steve Blow. For purposes of the motion, the Court assumed that “Hersh admitted talking with Blow about suicide and secrecy in general, but . . . denied making the alleged statements that the Tatums based their claims on—statements about [their son’s] death and obituary that encouraged Blow to write critically about those facts.”  Based on those facts, the Court reversed dismissal, finding that its holding in Pickens v. Cordia,TexasBarToday_TopTen_Badge_Small 433 S.W.3d 179 (Tex. App.–Dallas 2014, no pet.), controlled when “the defendant’s motion admits participating in a conversation generally but denies making the specific relevant statements in particular.”  Tatum v. Hersh, No. 05-14-01318-CV (Dec. 30, 2015).