October 24, 2019 Articles

Texas Appellate Court Addresses Free Speech in Context of Anti-SLAPP Statute: Part 2

How the court addressed important issues of alter ego, vicarious liability and agency, and summary of efforts to narrow scope of anti-SLAPP statutes

By Shain Khoshbin

The first part of this article (posted on October 1, 2019) examined the facts and discussed the anti-SLAPP issues addressed in ETC Texas Pipeline, Ltd. v. Addison Expl. & Dev., LLC, ___ S.W.3d ___, 2019 WL 3956114 (Tex. App.—Eastland, Aug. 22, 2019) (“ETC Opinion”). It discussed the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011 (TCPA), which is Texas’s version of an anti-SLAPP statute. It also compared the TCPA version involved in the ETC Opinion with the amended TCPA—which became effective on September 1, 2019 (referred to in this article as “the amended TCPA”) and pointed out some differences that may have affected the ETC Opinion if it involved the Amended TCPA.

This second part of the article will discuss the portions of the ETC Opinion regarding alter ego, vicarious liability, and agency. Then, it will provide a summary of key changes to the Texas anti-SLAPP statute, which also reflect concerns that led to an effort by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to draft legislation regarding “strategic lawsuits against public participation,” or “SLAPP” suits. See Issues Memorandum to National Conference of Commissioners on Uniform State Laws, dated June 3, 2019, regarding “Purpose and content of Act; issues addressed by Committee” (referred to in this article as “the NCCUSL Memo”). Defined terms from the ETC Opinion are provided in the first part of this article.

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