Prior to 2019, Texas courts allowed anti-SLAPP (Strategic Lawsuit Against Public Participation) motions to dismiss in a broad range of cases which did not squarely fit the Texas Citizens’ Participation Act’s (“TCPA”) mission to prevent retaliatory lawsuits against defendants exercising First Amendment rights. The TCPA motion practice is particularly attractive and potent because it requires the plaintiff to put forward “clear and specific” evidence of each element of its claim at the pleading stage. In essence, the TCPA provides a summary judgment-esque mechanism at the pleading stage before any discovery has been conducted and allows an award of attorneys’ fees to the successful movant. Defense counsel eagerly expanded the scope of the TCPA by using it in cases involving misappropriation of trade secrets and non-competes.

In June 2019, in effort to reign in some of the abuse of the TCPA, the Texas Legislature narrowed the scope of “matters of public concern” language in the statute to only include statements or activities relating to public officials, public figures, or other persons who have drawn substantial public attention; matters of political, social, or other interest to the community; or a subject of concern to the public. But even this language has ambiguity in it that can be exploited. The Legislature also added a laundry list of exempted claims (i.e., personal injury, sale of goods/services, trade secrets, non-competes) to prevent courts from applying the TCPA in those circumstances.

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