The Texas Citizens Participation Act, or TCPA, commonly referred to as the Anti-SLAPP statute protects people from lawsuits that infringe upon their rights to free speech or free association. While this has generally dealt with defamation cases, the Anti-SLAPP statute is finding itself to be more and more relevant in employment cases dealing with non-competition agreements, interpreted as the right to free association, and trade secrets, interpreted as the right to free speech.
If you find yourself being sued with regard to claims affecting your rights to free speech or free association, you have an arrow in your quiver with the Anti-SLAPP statute. Anti-SLAPP is an acronym for Strategic Lawsuits Against Public Participation. If you publicly criticize a company or entity for wrongdoing, such as polluting a river or performing surgery on a healthy knee, that company or entity could sue you for defamation. However, you could fight back under the TCPA.
Kilgore Attorneys Defend People Using the TCPA
Are you being sued for defamation after speaking out about a company or entity? The lawyers at Kilgore & Kilgore can help you decide on the best defense, including the exploration of whether or not an Anti-SLAPP motion is a useful defense. Are you being sued for violating a common law or contractual non-competition claim, then Anti-SLAPP statute can help in your defense? Finally, if you find yourself being told to cease and desist contacting former customers or vendors, you guessed it, the Anti-SLAPP statute! Click here to reach out to us Kilgore & Kilgore. One of our attorneys will respond with a free review of the facts of your case. To learn more about this topic, click here Defamation Lawsuits – Hit Back When You Get SLAPPed.
An Anti-SLAPP Lawsuit Has a Time Limit
Any time you’re involved in litigation, you must understand the required dates for filing court documents such as answers, motions, and appeals. If you miss a filing deadline, you could not only be out of luck, but it could also prevent you from having your day in court. Additionally, depending on your case, you could end up stuck with court costs and the other party’s attorney fees. Sure, your attorney is the one responsible for keeping track of and handling these details, but a wise person understands the responsibility of being cognizant and involved in his or her case. In Texas, if you’ve been sued for defamation, and you’d like to fight that claim, you must act quickly or else your case may be dismissed with a bill for the attorney’s fees of your opponent.
Anti-SLAPP Statute Definition
Under the TCPA, if you are exercising your freedom of speech or your right of association regarding a matter of public concern by complaining publicly about the acts of a company or entity, seeking to contact former customers or compete with a former employer, then you may defend yourself by filing an Anti-SLAPP motion for dismissal of your case using the TCPA. If you’re successful in getting your case dismissed, then the court will award your attorney’s fees incurred as well as penalties against the company or entity for bringing the lawsuit.
If the lawsuit against you is meritorious, meaning it meets the legal definition of defamation, then you can’t defend yourself using the TCPA. However, if the company or entity brings a defamation lawsuit to harass or intimidate you for speaking the truth, or the company or entity wants to drag out the litigation, to punish you by raising your costs, then these frivolous lawsuits can be fought.
Filing an Anti-SLAPP Lawsuit
Like other litigation, you must file your Anti-SLAPP lawsuit in a timely manner or risk getting your case dismissed. The TCPA protects individuals from retaliatory lawsuits for defamation that seek to intimidate those individuals on public concern issues, such as environmental dumping or toxic waste containment. The individual who is sued for defamation starts the clock on a TCPA defense by filing a motion to dismiss with the court. The motion must be filed no later than 60 days after you are served with the defamation lawsuit. If you don’t file the motion within the 60-day time period, you lose the protections of the TCPA. In certain instances, the court may extend this time period, if you show good cause.
Defending an Anti-SLAPP Lawsuit
If the court holds a hearing on the motion to dismiss, then you must demonstrate that the company or entity which filed the lawsuit in response to your exercising your right to free speech or free association. If you satisfy the court on this demonstration, otherwise known as satisfying the burden of proof, then the company or entity must establish each factor of its claim in order to prove that the lawsuit wasn’t retaliatory. This is a difficult burden for the company or entity to meet, because the law gives protection to individuals exercising their right to free speech regarding public concerns.
Example of an Anti-SLAPP Lawsuit Getting Dismissed
Recently, the Dallas Court of Appeals issued an opinion on an Anti-SLAPP defense. The case, known as Mancilla-Sales Tax International v. Taxfree Shopping, Ltd., was handled by Clark B. Will of Kilgore and Kilgore. In November 2018, the Dallas Court found that the plaintiff in this case, the individual who was sued for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (TUTSA) asserting the Anti-SLAPP statute defense should be dismissed.
In this case, a former employee, Evelyn Mancilla, and her new company, Sales Tax International, LLC (STI), were sued by her former employer, Taxfree Shopping, Ltd. (TFS). TFS was formed in 2001 as a sales tax refund business. Ms. Mancilla began working at TFS in 2007 and was promoted within the company to the rank of number three person in TFS. In May 2017, TFS terminated Ms. Mancilla, and promptly thereafter, she started STI, a competing company.
In June 2017, TFS sued Ms. Mancilla and STI for misappropriation of trade secrets under TUTSA as well as injunctive relief for using TFS’s customer service lists, contacting customers and employees, utilizing marketing strategies, and making public or private defamatory comments about TFS. After some discovery, TFS amended its complaint in October 2017. In the amended complaint, TFS dropped certain claims and added others, including breach of fiduciary duty. Further, TFS added more facts to support its initial claims, such as providing specific client information as opposed to the more general term “client lists.”
In December 2017, Ms. Mancilla filed a TCPA motion, seeking to dismiss the TUTSA claim, alleging that this claim was filed to intimidate and silence her right to free speech and association. Since there were no valid non-competition agreement, non-disclosure agreement, or non-disparagement agreement, then Ms. Mancilla asserted that this claim’s purpose was to stifle and silence her.
TFS claimed that Ms. Mancilla’s motion should be dismissed since it wasn’t filed with the court in a timely manner. Ms. Mancilla argued that the motion was timely because it was filed within 60 days after the second complaint was filed. Since the second complaint was substantially reformulated with additional, specific facts, then the second complaint triggers the 60-day clock, not the first complaint.
Time Limit was the Reason for the Anti-SLAPP Lawsuit Dismissal
However, the court found that an amended pleading that doesn’t add new parties or claims does not restart the 60-day clock. To do so, the complaint must be amended to reflect new claims of action or new parties to the lawsuit. Here, the amended complaint added detail to the already asserted TUTSA claim, which appeared in the first complaint. The Dallas Court of Appeals held that additional detail to an already asserted complaint does not restart the clock. As a result, Ms. Mancilla’s motion asserting the Anti-SLAPP motion was dismissed. Further, the Dallas Court of Appeals awarded TSL its costs in this case to be paid by Ms. Mancilla and STI.
Read More About Anti-SLAPP Lawsuit Dismissal Protocols
If you have experienced a similar situation and wish to bring an Anti-SLAPP motion, you will benefit from the experience and knowledge of the Anti-SLAPP statute of the attorneys at Kilgore & Kilgore. To read more about the Anti-SLAPP statute, click here Anti-SLAPP Dismissals Just Became a Bit More Difficult. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.