Introduction - On June 17, 2011, Texas Governor Rick Perry affixed his neat signature to Texas’ new anti-SLAPP law, entitled the Texas Citizens Participation Act (the “TCPA”), and in so doing Texas joined 28 states and the District of Columbia in enacting various forms of legislation purportedly aimed at preventing frivolous lawsuits from stifling free speech activities and the rights of petition and association. As drafted, however, the TCPA will likely trigger significant unintended consequences, especially for persons and entities that file suit to protect their reputation and various property interests. The TCPA introduces what one judge called a “draconian” motion to dismiss that places a heavy burden on the aggrieved plaintiff to prove that its suit is not frivolous at the inception of the litigation without the benefit of any meaningful discovery. The Act does not define the shape or parameters of a SLAPP suit or distinguish between causes of action subject to or protected from the anti-SLAPP statute. So long as a defendant in a business torts suit can characterize the suit as “based on,” “relating to,” or “in response to” the exercise of free speech, petition or association, the motion to dismiss can be filed, and unless the plaintiff presents prima facie evidence of each element of his claim, the motion to dismiss must be granted. The potential for abuse of this newly crafted dispositive motion is significant.
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