New Law Could Drastically Change Anti-SLAPP Lawsuits

In two previous blogs, we’ve discussed Anti-SLAPP laws and how they can relate to defamation cases for businesses. Anti-SLAPP laws essentially work to protect companies from defamatory or false statements regarding their businesses practices. Though these laws have been in place for several years, a new bill has been put in motion that could change these laws and even exclude certain cases if passed.

Earlier this year, representative Jeff Leach of Plano proposed House Bill 2730, which aimed to narrow and limit the reach of Texas Anti-SLAPP laws to apply only to legal actions that implicate free-speech, free association, and freedom to petition the government. This bill ultimately attracted negative attention from various news and media outlets, which were concerned it would remove the law that protects journalists. Based on this criticism, Leach decided to introduce a committee substitute quite different from his original Bill.

Though Leach’s substitute does reinstate most of what was in the original Bill, it does tweak the definition for “matter of public concern.” This was done to clarify that it means speech related to public interest and conduct that may impact many people or topics of major public interest. Additionally, the substitute adds that an Anti-SLAPP motion to dismiss cannot be used in any procedural actions or motions that don’t add to or change an existing claim within the current litigation. The same goes for any alternative dispute resolution proceedings or post judgment performance actions.

The substitute also includes a long list of case types that Anti-SLAPP laws are not meant to apply towards. These include cases arising in employment contexts, over trade secrets, family law matters, certain criminal cases and business disputes, and common-law fraud claims, among others. The new Bill also includes a provision making it clear the Anti-SLAPP law protects work by journalists, writers, artists, musicians, filmmakers, and other content creators. Another part of the Bill expressly protects victims of family or sexual violence.

One major deletion from the original Bill was the removal of the potential for litigants to nonsuit their claims prior to a hearing on a motion to dismiss.

In 2011, Texas legislature passed a law regarding a motion to dismiss when a lawsuit has no basis in law or fact, providing that a litigant who won a dismissal could collect costs and attorney fees. Later however, the Texas Supreme Court created Rule 91a in the Texas Rules of Procedure to implement the law.

Representative Andrew Murr of Kerrville proposed House Bill 3300, which would tweak Rule 91a to allow judges to use their discretion to determine whether to award costs and attorney fees, instead of the current mandatory award. Murr explained to the committee that the mandatory fee award discourages litigants from using the motion to dismiss, thus giving judges the discretion to award fees, allowing them to weigh the merits of each case.

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