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FSC Secures Precedent-Setting Ruling from Fifth Circuit Court of Appeals that Texas Anti-SLAPP Statute Does Not Apply in Federal Diversity Cases

By September 9, 2019No Comments

On August 23, 2019, the U.S. Court of Appeals for the Fifth Circuit held that the Texas Citizens Participation Act does not apply to diversity cases in federal court. The Fifth Circuit agreed with Friedman, Suder & Cooke, P.C. (“FSC”) that the TCPA conflicts with the Federal Rules of Civil Procedure and took action in favor of FSC’s client.

The TCPA is an anti-SLAPP statute (Strategic Litigation Against Public Participation) that allows parties to seek early dismissal if the claims are based on a party’s exercise of constitutional rights, such as the right of free speech. If a movant shows that the action is based on the movant’s exercise of First Amendment rights, the case will be dismissed unless the non-movant establishes by “clear and specific evidence” a prima facie case for each element of the claim.  Effectively, the TCPA required the trial court to weigh the merits evidence prior to any discovery in the litigation.

The firm’s client, Wayne Klocke, filed suit against the University of Texas at Arlington and Nicholas Watson, as a result of the University’s grossly improper handling and disposition of a Title IX investigation into sexual harassment by Mr. Watson against Mr. Klocke’s son, Thomas.  Mr. Watson’s defamation combined with the University ‘s complete circumvention of Title IX procedures resulted in improper academic sanctions against Thomas. Unfortunately, their actions caused the destruction of Thomas’s reputation and immense mental anguish and pain. Sadly, this resulted in Thomas taking his own life on June 2, 2016. Thomas’s family filed suit against UTA and Mr. Watson in federal court to hold them accountable for their conduct.

Mr. Watson moved to dismiss on the basis that the TCPA applied. Despite Mr. Klocke’s objection to applying the TCPA, the trial court granted Mr. Watson’s motion to dismiss. Mr. Klocke appealed the trial court’s order to the Fifth Circuit. The Fifth Circuit held that the TCPA impermissibly “imposes evidentiary weighing requirements not found in the Federal Rule, and operates largely without pre-decisional discovery.” Because the TCPA “imposes higher and more complex preliminary burdens [and deadlines] on the motion to dismiss process,” the TCPA cannot apply in diversity cases in federal court. The Fifth Circuit reversed and remanded the trial court’s judgment for further proceedings.

“This case has been closely watched by Texas attorneys because the Fifth Circuit finally resolved that the Texas anti-SLAPP statute does not apply in federal courts,” said Jonathan Suder, co-founding shareholder of FSC and counsel for Mr. Klocke.  He added, “The case ensures that Defendants cannot hide behind the TCPA and broadly apply it in federal court to avoid discovery. Fortunately, the Fifth Circuit’s ruling enables our client’s case to proceed with discovery to illuminate the truth and find resolution for the Klocke family.”

For a copy of the Court’s opinion, Klocke v. Watson, 17-11320, 2019 WL 3977545, (5th Cir. Aug. 23, 2019) visit:

Jonathan Suder of FSC and Kenneth B. Chaiken of Chaiken & Chaiken, P.C. jointly represent Wayne Klocke.

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