tjb-seal-144Back in late 2015, I wrote a five-part series on the Expanding Scope of the TCPA or Texas’ Anti-SLAPP law. The Supreme Court of Texas confirmed our analysis last week with its decision in the ExxonMobil v. Coleman confirming that Anti-SLAPP protections can and do apply to internal corporate communications when there is a defamation claim.

ANTI-SLAPP 101

The Texas Anti-SLAPP law is known as the Texas Citizens Participation Act (the “TCPA” found at Tex. Civ. Prac. & Rem. Code at § 27.001, et seq.).

“If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”  Id. at 27.003(a).   A defendant invoking the TCPA must therefore show three elements by a preponderance of the evidence: (1) there is a legal action; (2) “based on, relates to, or is in response to”; and (3) one of the protected activities.

“[A] court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”  Id. at 27.005(b).

The Dallas Court of Appeals ruled no “public concern” in internal communications

In 2015, the Dallas Court of Appeals held that the law did not apply to internal communications within a company about an employee’s performance because that was not a matter of “public concern” despite the claim by the employer (ExxonMobil) that the issues touched on matters of public safety.  See ExxonMobil v. Coleman, 2015 WL2206466 (Tex.App.—Dallas May 12, 2015).

ExxonMobil claimed that the plaintiff failed to “gauge” one of the storage tanks and after an investigation ExxonMobil terminated him.  The plaintiff denied all wrongdoing and sued ExxonMobil and the employees who participated in the investigation for publishing defamatory statements about him during the internal investigation bringing the TCPA into a typical employment dispute.

Both the trial court and the court of appeals held the TCPA did not apply and refused to dismiss the suit.  Despite the defendants’ efforts to claim it was a matter of public safety, the court found the investigation focused on job performance and not the results that could happen if the storage tanks were not properly maintained.  Therefore, the statements “involve nothing more than an internal personnel matter at Exxon” and therefore “were not a matter of public concern.”

The Texas Supreme Court says matters of public concern are matters of public concern        

Relying upon its earlier decision of Lippincott v. Wisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam), the Supreme Court of Texas ruled there is no requirement that the communications themselves have to be public.  Instead, the statute only requires that the communication be made in connection with a matter of public concern. The court wrote:

The allegations include claims that Whisenhunt “failed to provide adequate coverage for pediatric cases,” administered a “different narcotic than was ordered prior to pre-op or patient consent being completed,” falsified a scrub tech record on multiple occasions, and violated the company’s sterile protocol policy. We have previously acknowledged that the provision of medical services by a health care professional constitutes a matter of public concern. See Neely v. Wilson, 418 S.W.3d 52, 70 n.12 & 26 (Tex. 2013) (determining that the public had a right to know about a doctor’s alleged inability to practice medicine due to a mental or physical condition); see also TEX. CIV. PRAC. & REM. CODE § 27.001(7) (defining “matter of public concern” to include issues related to health or safety, community well-being, and the provision of services in the marketplace, among other things). Thus, we conclude these communications were made in connection with a matter of public concern.

In ExxonMobil v. Coleman, the Supreme Court of Texas criticized the Dallas Court for suggesting that the communications at issue had to involve more than a “tangential relationship” to matters of public concern. Not finding that required by the statute which expressly states that the communications have to be made “in connection with” or about “an issue related to” safety, the court held the TCPA applied. As a result, the case was sent back to see whether the plaintiff Coleman met his burden of establishing clear and specific evidence for each essential element of his claim.

Plead defamation with care

If you add a defamation claim to your case, do so with caution. Regardless of who sees the alleged defamatory statement, if the defendant can make an argument that the alleged statement was made “in connection with” or about “an issue related to”  a public concern, you will likely face a Motion to Dismiss.  It automatically stays discovery, gives the defendant an automatic right to appeal and if a defendant prevails on a motion to dismiss, Texas courts are required to award the defendant “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”  Id. at 27.009(a).