The Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code §§ 27.001 et seq. (the TCPA), Texas’ anti-SLAPP statute, is likely to receive a much needed overhaul after the Texas Senate unanimously passed H.B. 2730 on May 17, 2019. If the Texas governor signs it into law, as expected based on the bill’s broad bipartisan support in the Texas House and Senate, the revisions will take effect on September 1, 2019, and will clarify – and significantly narrow – the types of claims to which the TCPA applies. Also, importantly for companies seeking to protect their trade secrets and enforce their restrictive covenants, the changes to the TCPA would exempt such claims from its purview.
The TCPA was originally enacted in 2011 to protect citizens who exercise their First Amendment rights from retaliatory legal actions that seek to intimidate or silence them. Specifically, the TCPA allows a party to file a motion to dismiss within 60 days of service of a lawsuit if it can establish that the legal action is based on, relates to, or is in response to the party’s exercise of the right of free speech, the right to petition, or the right of association. If the party-defendant meets this burden, the plaintiff must then establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” If the defendant is ultimately successful on its motion to dismiss, the defendant is entitled to recover its attorneys’ fees.
Importantly, while a TCPA motion to dismiss is pending – and during any subsequent appeal of the trial court’s ruling on the motion – discovery and all other proceedings at the trial court are stayed. This stay can result in significant delay, which can be particularly harmful in cases in which an employer seeks emergency injunctive relief to prevent the irreparable harm associated with the use and disclosure of misappropriated trade secrets or the violation of restrictive covenants by former employees.Continue Reading Texas Legislature takes aim at Anti-SLAPP challenges