My disappointment with the Game of Thrones’ finale on Sunday night was greatly alleviated by the news on Monday morning that a bill amending the Texas anti-SLAPP law is on its way to the governor’s office.
This amendment to the Texas Citizens Participation Act (the anti-SLAPP law) – should it be signed into law by Gov. Abbott – explicitly says that the TCPA does not apply to a legal action arising from an employer-employee relationship (among other relationships) that seeks to recover for trade secrets misappropriation, or seeks to enforce a non-compete or non-disparagement agreement.
Even though this exemption is only one small part of the proposed amendment to the statute, just this change alone would alleviate a growing amount of unrest (don’t worry, not rising to GOT-levels) among Texas litigants regarding the statute’s broad reach.
My colleagues and I have written quite a bit about the surprising impact that the TCPA has had on employment litigation. The TCPA is a motion to dismiss vehicle: It stops discovery, brings litigation to a halt, and requires significant motion practice on the merits of a plaintiff’s claims. Although the TCPA was intended to provide a narrow off-ramp early in the litigation process for frivolous claims targeting constitutional rights, a broad range of employment claims – including restrictive covenant and trade secret litigation – was quickly swept within its reach. Companies that wanted to protect their trade secrets, as an employee walked out the door to work for a competitor, usually had to factor in the possibility of a TCPA motion to dismiss that would bring litigation to a halt and necessitate significant motion practice before the case could go forward.
Unlike our Sunday-night forays into the world of Westeros, Texas lawyers (and companies litigating unfair competition cases) won’t see the back of the TCPA for some time yet, even if this amendment is signed into law. As an initial matter, the amendment would only apply to actions filed on or after its effective date (purportedly September 1, 2019). But further, as long as victorious moving parties receive an award of attorney’s fees, it is likely that defendants will continue to test the outer boundaries of this statute. After all, when you play the game of thrones, sometimes you die, or sometimes . . . you win. (Sorry, I couldn’t help it.)