Klocke’s Ongoing Viability: Whether the TCPA’s Statutory Changes Have Resurrected Its Applicability in Federal Court

Seyfarth Shaw LLP

On August 23, 2019, the United States Court of Appeals, Fifth Circuit ruled that the Texas Citizen’s Participation Act, Texas Civil Practices and Remedies Code Chapter 27 (“TCPA”), did not apply in federal court. Klocke v. Watson, 936 F.3d 240, 244 (5th Cir. 2019). Nine days later, on September 1, 2019, key statutory changes went into effect for cases filed after the amendments’ enactment.[1] See H.B. 2730, Sept. 1, 2019. These amendments changed the requirements of the TCPA in several ways, some of which the Klocke panel had directly addressed when determining the TCPA’s applicability in federal court.

The question therefore arises whether the TCPA remains inapplicable in federal court for cases filed after September 1, 2019.[2] A Fifth Circuit panel addressing this issue today, and applying the rulings in Klocke, would likely rule that the TPCA remains inapplicable. Specifically, despite the various changes, the TCPA still “imposes evidentiary weighing requirements not found in the Federal Rules, and operates largely without pre-decisional discovery[.]” Klocke, 936 F.3d at 246. Accordingly, the TCPA “conflicts with those rules,” “answers the same question” as those rules, and therefore “cannot apply in federal court.” Id. at 244, 245, 246.

In its analysis, the Klocke panel noted that “the Federal Rules impose comprehensive, not minimum, pleading requirements.Rules 8, 12, and 56 ‘provide a comprehensive framework governing pretrial dismissal and judgment.’” Klocke, 936 F.3d at 247 (quoting Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1351 (11th Cir. 2018) (emphasis added)). Accordingly, the panel held “[t]hese rules ‘contemplate that a claim will be assessed on the pleadings alone or under the summary judgment standard; there is no room for any other device for determining whether a valid claim supported by sufficient evidence [will] avoid pretrial dismissal.’”Id. (quoting Carbone, 910 F.3d at 1351) (emphasis added).

With these principals in mind, it is likely that the revised TCPA still does not survive the Klocke analysis:

Reasons Klocke determined TCPA did not apply in federal court TCPA’s changes, current language and analysis[3]

“[A] state rule conflicts with a federal procedural rule when it imposes additional procedural requirements not found in the federal rules. The rules ‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of litigation.”

936 F.3d at 245.


Because the TCPA’s burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.

936 F.3d at 245.

Key aspects of the burden-shifting framework remain in the TCPA that answer the same questions as, and conflict with, Rules 12 and 56.

Tex. Civ. Prac. & Rem. Code § 27.005(b).

“In contrast to the federal procedural requirements, the TCPA imposes additional requirements that demand judicial weighing of evidence. Thus, confronted with a motion to dismiss under the TCPA, the court must determine ‘by a preponderance of the evidence’ whether the action relates to a party’s exercise of First Amendment rights. Tex. Civ. Prac. & Rem. Code § 27.005(b)(1)-(3).”

936 F.3d at 246.

The TCPA has changed in this regard. A moving party now need only “demonstrate[]” that a legal action falls within the TCPA’s aegis. See Tex. Civ. Prac. & Rem. Code § 27.005(b). This removes the requirement that the plaintiff show the applicability by a preponderance of the evidence.

“The court must also determine whether there is “clear and specific evidence” that a plaintiff can meet each element of his claim. Id. at § 27.005(c). ‘Clear and specific evidence’ must be, inter alia, ‘unambiguous, sure, or free from doubt.’ In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The standard, which lies somewhere between the state’s pleading baseline and the standard necessary to prevail at trial, id. at 591, in any event exceeds the plaintiff’s Rule 56 burden to defeat summary judgment.”

936 F.3d at 246

The TCPA has not changed in this regard.

If the movant satisfies its initial burden (which is even lower than before the change in statutory language) the requirement remains for a non-moving party to show by “clear and specific evidence a prima facie case for each essential element of the claim in question.”

See Tex. Civ. Prac. & Rem. Code § 27.005(c).

“Finally, the court must determine ‘by a preponderance of the evidence’ if the defendant can establish a valid defense to the plaintiff’s claim. Tex. Civ. Prac. & Rem. Code § 27.005(d).”

936 F.3d at 246.

The TCPA has changed in this regard.

A moving party now only need “establish[] an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.”

See Tex. Civ. Prac. & Rem. Code § 27.005(d).

“All these determinations are to be made while discovery normally available in federal court is circumscribed by the TCPA, except for ‘good cause.’ Id. at §§ 27.003(c), 27.006(b).”

936 F.3d at 246.

The TCPA has not changed in this regard.

Tex. Civ. Prac. & Rem. Code § 27.003(c) still requires that “all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.”

Tex. Civ. Prac. & Rem. Code § 27.006(b) still requires a “good cause” showing for any pre-hearing discovery to proceed.

“Because the TCPA imposes evidentiary weighing requirements not found in the Federal Rules, and operates largely without pre-decisional discovery, it conflicts with those rules.”

936 F.3d at 246.

The burden of showing “clear and specific evidence a prima facie case for each essential element of the claim in question” remains part of the TCPA and continues to impose evidentiary weighing requirements not found in the Federal Rules. See Tex. Civ. Prac. & Rem. Code § 27.005(c).

The discovery stay and “good cause” requirements in the TCPA remain unchanged. Tex. Civ. Prac. & Rem. Code § 27.005(c) §§ 27.003(c), 27.006(b)

[The TCPA] “’creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights. The language of the statute is procedural. . . . The statute deals only with the conduct of the lawsuit; it creates no rights independent of existing litigation; and its only purpose is the swift termination of certain lawsuits the legislators believed to be unduly burdensome.’”

Klocke, 936 F.3d at 248 (quoting Makaeff v. Trump Univ., LLC 715 F.3d 254, 273 (9th Cir. 2013) (Kozinski, C.J., concurring)

Nothing in the TCPA has changed that would impact this conclusion.

The Louisiana anti-SLAPP statute and the impact of Henry

One may argue that the September 1, 2019 changes in the TCPA put the statute more in line with Louisiana’s anti-SLAPP statute at La. Code Civ. Proc. Art. 971, which the Fifth Circuit applied in a federal diversity case in Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5th Cir. 2009). The Louisiana anti-SLAPP statute states in relevant part:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

La. Code. Civ. Proc. art. 971(A)(1)

The Fifth Circuit in Henry further described the burden-shifting framework required under the Louisiana anti-SLAPP statute as follows:

  • [a] defendant must first make a prima facie showing that Article 971 covers the activity underlying the suit. That is, the defendant must “establish[ ] that a cause of action against him arises from an act by him in furtherance of the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue.” Starr v. Boudreaux, 978 So.2d 384, 388–89 (La.App. 1st Cir.2007).
  • If the defendant makes this showing, “the burden then shifts to the plaintiff to demonstrate a probability of success on his claim.” Id. at 389.

Henry 566 F.3d at 170.

Regarding the second prong (“probability of success”), it appears largely similar to the TCPA’s second prong, but without the requirement of “clear and specific evidence”:

“To establish a probability of prevailing on his claim, a plaintiff must state and substantiate a legally sufficient claim. This is done through a prima facie showing of facts sufficient to sustain a favorable judgment.” Baxter [v. Scott], 847 So.2d [225], 231–32 [La. App. 2d Cir. 2003]. This requires more than that which is necessary to survive a normal motion to dismiss, as “a defamation plaintiff must produce evidence of sufficient quality and quantity to demonstrate that he will be able to meet his burden of proof at trial.” Estiverne v. Times–Picayune, L.L.C., 950 So.2d 858, 860 (La. App. 4th Cir. 2006) (quotation marks omitted). As one Louisiana court has noted, establishing a probability of success is a “difficult burden.” Baxter, 847 So.2d at 235. This burden is justified, however, as “the necessity of protecting our constitutional rights of free speech and petition, particularly when exercised in relation to public issues or matters of public interest, requires the imposition of this burden on a plaintiff who brings a defamation action impacting these rights.” Id.

Henry, 566 F.3d at 181–82 (emphasis added).

Like the TCPA, all discovery proceedings are stayed in the action until the motion is resolved, unless good cause is shown. La. Code. Civ. Proc. art. 971(D). Accordingly, the Klocke decision’s criticism of the TCPA would likely have applied similarly to the Louisiana anti-SLAPP, and based on the rule of orderliness, would not have allowed a different result under the TCPA.

Given these similarities, one could thus argue that the lower evidentiary burdens in the revised TCPA may allow for its applicability in federal court. It is unlikely, however, that such an argument would prevail, for the following reasons:

  • The high burden of “clear and specific evidence” remains in the revised TCPA for a non-moving party to establish a prima facie case, once a moving party has established the plaintiff has impacted protected rights. As the Fifth Circuit held, this standard, “which lies somewhere between the state’s pleading baseline and the standard necessary to prevail at trial . . . in any event exceeds the plaintiff’s Rule 56 burden to defeat summary judgment.” Klocke, 936 F.3d at 246 (citing In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)).
  • The Henry panel “did not discuss the potential conflict between the state law and federal rules” and preceded Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), which the Klocke panel relied on for its conclusion that “a state rule conflicts with a federal procedural rule when it imposes additional procedural requirements not found in the federal rules [and] [t]he rules ‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of litigation.” Klocke, 936 F.3d at 246. [4]

Accordingly, “[a]lthough this question is not free from doubt,” it is unlikely that the Henry decision compels the applicability of the revised TCPA in federal court. Klocke, 936 F.3d at 248 (concluding the earlier-decided Henry decision does not compel a different result based on the rule of orderliness).


[1] Some of these changes dramatically reduce the type of trade secret cases that may be challenged under the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.010(a)(5). We will explore what trade secrets remain suscepticble to TCPA challenge in forthcoming blog post.

[2] This analysis assumes that the case involves facts that otherwise implicate the underlying constitutional issues and protections outlined in the TCPA, pre- and post-amendment.

[3] While not at issue here, the revised TCPA has also expanded the type of evidence a court must consider when determining whether a legal action is subject to the TCPA, to now include summary judgment evidence, as well as “the pleadings” and “supporting and opposing affidavits stating the facts on which the liability or defense is based.” Tex. Civ. Prac. Code. § 27.006(a).

[4] The Fifth Circuit panel in Klocke further distinguished Henry based on the earlier TCPA’s initial “preponderance of the evidence” burden of the moving party and burden in establishing an affirmative defense. Klocke, 936 F.3d at 248. These burdens have now changed, however, as shown above, with the initial burden much closer to the Louisiana anti-SLAPP statute. The panel in Klocke also pointed to “rigorous procedural deadlines” that have not changed. Id. at 248. The Louisiana anti-SLAPP statute is more forgiving in its deadlines. See, e.g., La. Civil Code Proc. art. 971 (C)(1) (“The special motion may be filed within ninety days of service of the petition, or in the court’s discretion, at any time upon terms the court deems proper.”). Also as indicated above, both statutes restrict discovery except on good cause.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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