With the Texas Citizens Participation Act (the “TCPA”), the Legislature Has the Last Word—The Texas Supreme Court Further Clears the Way for Early Dismissal of Certain Claims Within 90 Days of Filing Using the TCPA

Chris Hanslik

March 16, 2017

The TCPA allows for early case dismissal—typically within 90 days of filing—of torts like business defamation, tortious interference, and malicious prosecution. Specifically, if your company is sued for torts factually predicated on a communication or action that purportedly caused the injury, the TCPA may be available to dismiss these claims shortly after filing if the communication or action relates to your company’s freedom of speech, right of association, and/or right to petition. For more on the TCPA, look here.

The Texas Supreme Court recently decided that a defamation claim based on internal, business communications among ExxonMobil Pipeline Company (“EMPCo”) employees about an employee’s work performance were ripe for dismissal under the TCPA (also known as the Texas anti-SLAPP law). The Supreme Court’s ruling continues the jurisprudence trajectory in which courts, employing strict textualism, allow litigants to use legislation aimed to curtail strategic lawsuits against public participation, like the TCPA, to dismiss claims based on non-public communications and actions.

In the ExxonMobil Pipeline Company v. Coleman, a former employee was fired based on his alleged failure to record the fluid volume of various petroleum products and additives in a storage tank—a responsibility of his role at EMPCo. Shortly after the EMPCo employee allegedly failed to gauge the tank in question, other EMPCo employees sent internal e-mails discussing the same. After an inquiry into the incident—in which additional correspondence was exchanged—the employee was fired. The former employee then brought a claim for defamation against EMPCo based on the internal communications made regarding the incident. In response, EMPCo filed a TCPA motion to dismiss the defamation claim.

The stated purpose of the TCPA is to “encourage and safeguarded the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” In order to bring a TCPA motion to dismiss, the movant must first show by a preponderance of the evidence that the plaintiff’s claim “is based on, relates to, or is in response to the [movant’s] exercise of: (1) the rights of free speech; (2) the right to petition; or (3) the right of association.” The TCPA defines the “exercise of the right of free speech” as “a communication made in connection with a matter of public concern” and a “matter of public concern” includes “an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace.” If the movant makes this showing, the burden then shifts to the non-movant to show by clear and specific evidence a prima facie case for each essential element of the challenged claim(s).

In ExxonMobil Pipeline Company, EMPCo alleged the former employee’s defamation claim was properly dismissible under the TCPA because EMPCo’s internal communications regarding the incident were communications made in connection with a matter of public concern (i.e. health, safety, environmental well-being). The appellate court concluded that this was not the type of communications properly protectable by the TCPA. On further appeal, the Texas Supreme Court reversed.

Taking a strict textualist approach, the Texas Supreme Court noted its “objective in construing the statue is to give effect to the Legislature’s intent, which requires [the Courts] to first look to the statute’s plain language.” The Supreme Court ultimately concluded “[t]he statements, although private among EMPCo employees, related to a ‘matter of public concern’ because they concerned [the former employee’s] alleged failure to gauge [the tank in question], a process completed, at least in part, to reduce the potential environmental, health, safety, and economic risks associated with noxious and flammable chemicals overfilling and spilling onto the ground.” Accordingly, EMPCo had met the first prong of a TCPA motion to dismiss. The former employee was then required to show by clear and specific evidence all essential elements of his defamation claim. The Texas Supreme Court remanded for further proceedings.

The Texas Supreme Court’s ruling in ExxonMobil Pipeline Company is significant as it continues Texas courts’ inclination to be strict textualists in interpreting Texas legislation. As Texas law stands at present, the TCPA may apply in nearly any defamation claim regardless of the factual context. Texas courts have left it up to the Texas Legislature to say otherwise.