On Friday, August 23, the Fifth Circuit issued its much-anticipated opinion in Klocke v. Watson, No. 17-11320, holding that defendants cannot move to dismiss federal court lawsuits based on the Texas Citizens Participation Act (TCPA), often referred to as an anti-SLAPP (strategic litigation against public participation) statute.  At least one federal district court had allowed a party to pursue a TCPA motion to dismiss, and the Fifth Circuit had permitted a federal-court defendant to bring a motion to dismiss under Louisiana’s similar anti-SLAPP statute.  In Klocke, however, a three-judge panel that included Judges Jones, Barksdale, and Willett unanimously held that the TCPA is incompatible with federal rules and procedures and is therefore unavailable in federal lawsuits. 

In Klocke, the Fifth Circuit concluded that the TCPA is procedural and not substantive law.  As a result, a federal court sitting in diversity should not apply the statute because its procedural mechanisms conflict with the procedural requirements found in Federal Rules 12 and 56, which already specify the requirements for a case to proceed at the same stage of litigation addressed by the TCPA.  As the Fifth Circuit explained: “Because the TCPA’s burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same questions as those rules, the state law cannot apply in federal court.”  This decision is in line with similar holdings in the Tenth, Eleventh, and D.C. Circuits, but conflicts with decisions in the First, Second, and Ninth Circuits which have permitted the use of state anti-SLAPP statutes in federal actions.

Like other state anti-SLAPP statutes, the TCPA permits a party to file a motion to dismiss a legal action that is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.”  Tex. Civ. Prac. & Rem. Code § 27.003.  Texas courts have broadly interpreted and applied the statute, which provides for mandatory awards of attorneys’ fees and sanctions to a prevailing movant.  The act has had a significant impact on Texas litigation in recent years. 

Criticisms of Texas courts’ broad application of the TCPA led the Texas Legislature to amend the act in the most recent legislative session.  The revised version takes effect next week, on September 1.  Although the amended version of the TCPA has narrowed some of the relevant defined terms, such as the “legal actions” to which it applies, and has expanded the types of actions that are exempted from the act’s reach, some practitioners believe that the amendments do not do enough to rein in the TCPA’s expansive scope and predict that some of the same problems that existed under the original act will persist.

Although the impact of the TCPA as amended is uncertain, Klocke provides a clear, bright-line rule prohibiting use of the TCPA in federal court.