Browsing by Author "Sherwin, Robert T."

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The Changing Landscape of the Texas Citizens Participation Act
(Texas Tech Law Review Online, 2019) Prather, Laura Lee; Sherwin, Robert T.
Courts, scholars, and free speech advocates have dubbed meritless lawsuits targeting the legitimate exercise of the rights to engage in truthful speech, lawful petitioning, and legal association as “Strategic Lawsuits Against Public Participation” (SLAPP suits). A SLAPP suit is the offensive use of a legal proceeding to prevent, or retaliate against, persons lawfully exercising First Amendment rights. SLAPP suits seek to prevent the named defendant from exercising a lawful right, such as testifying at a city council meeting, complaining to a medical board about a doctor, investigating fraud in our education system, or participating in a political campaign. They chill First Amendment activities by subjecting citizens who exercise constitutional rights to the intimidation and expense of defending a lawsuit that lacks merit. While meritorious lawsuits are intended to right a legal wrong, the primary motivation behind a SLAPP suit is to stop lawful speech in a strategy to win a political or social battle. In response to a rise in retaliatory litigation, at least thirty-three states, the District of Columbia, and the United States territory of Guam have passed some form of Anti-SLAPP legislation. The Texas Legislature, like those in other states, noted this trend and, in 2011, it enacted the Texas Citizens Participation Act (TCPA or “Texas Anti-SLAPP Statute”). After eight years of jurisprudence, powerful lobby groups sought changes to curtail its application in business settings. All agreed the language needed to be tightened so that it could no longer be used improperly as a litigation tactic to thwart its purpose. Including companion bills, five bills were introduced covering varying approaches to reform. Ultimately, House Bill 2730 (H.B. 2730) was the measure that passed. On Sunday, June 2, 2019, Governor Greg Abbott signed H.B. 2730 into law. It goes into effect on September 1, 2019 and applies to actions filed on or after that date. The changes to the law narrow the scope of applicability by narrowing its definitions, expanding its exemptions, and providing more direction for the courts and litigants about burdens and measures of proof. Under the original law, one could file an Anti-SLAPP motion if the “legal action 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 . . . .” “Exercise of the right of free speech” means a communication made in connection with a “matter of public concern.” H.B. 2730 made significant changes to these definitions, which will change the reach of the TCPA in future lawsuits. The changes to the law are meant to be a constructive approach to reform while preserving the integrity and purpose of the law. The changes emanate from three different directions: changes to when the TCPA can be used, how it can be used, and who can use it. Note: This Article will be published in Volume 52, Book 2 of the Texas Tech Law Review and has not gone through the full editing process. The fully edited version will appear in print in Winter 2019.
Evidence? We Don't Need No Stinkin' Evidence!: How Ambiguity in Some States' Anti-SLAPP Laws Threatens to De-Fang A Popular and Powerful Weapon Against Frivolous Litigation
(Columbia Journal of Law & the Arts, 2017) Sherwin, Robert T.
For nearly thirty years, states have been adopting laws that attempt to stop rich, sophisticated parties from using costly litigation as a weapon to punish and silence their less-affluent critics. Known as “anti-SLAPP” statutes, these measures have been incredibly effective in forcing certain plaintiffs to bring forth evidence at an early stage of litigation to show their claims have merit. Unfortunately, a troubling trend has emerged. Some states’ courts are interpreting particular language within their anti-SLAPP laws to allow plaintiffs to survive early dismissal by merely pointing to unproven and unsworn-to allegations in their pleadings. This movement is on the rise as Congress recently considered a federal anti-SLAPP bill that just so happens to feature this same ambiguous language. This Article explores how state courts are arriving at entirely opposite holdings despite sharing statutory language that is identical in form and purpose. Ultimately, this article offers specific suggestions about how Congress and state legislatures can fix their laws to avoid uncertainty and fully effectuate the purpose of anti-SLAPP legislation.
Shoot First, Litigate Later: Declaratory Judgement Actions, Procedural Fencing, and Itchy Trigger Fingers
(Oklahoma Law Review, 2018) Sherwin, Robert T.
Judges have always been suspect of declaratory judgment actions and, more particularly, the "mirror-image" case where the alleged wrongdoer takes on the role of the plaintiff. Federal courts typically point out that nothing in the Declaratory Judgment Act requires them to hear a request for declaratory relief; indeed, their jurisdiction is entirely discretionary. Consequently, most US. Courts of Appeals have developed a list of factors to assist lower courts in deciding whether to exercise jurisdiction over a declaratory judgment action or dismiss the case. One common element circuit courts often point to is whether the suit was brought "anticipatorily" by a plaintiff seeking to establish the forum of its choice, rather than waiting to be sued by the "natural plaintiff" in a less defendant-friendly forum. Courts bemoan such "races to the courthouse" as "disorderly" attempts at "procedural fencing." Unfortunately, the courts of appeals have done an atrocious job of providing any meaningful or helpful guidance to lower courts and litigants regarding what constitutes an anticipatory lawsuit. Courts routinely dismiss cases seeking declaratory relief by reasoning that the plaintiff was trying to distort the purpose of the statute and rob the natural plaintiff of its chosen venue. They do so by applying a mishmash of factors and rules that lack any uniformity and oftentimes clash with the statute's purpose. This Article attempts to bring some semblance of order to the "anticipatory lawsuit" exception. It does so by proposing two radical suggestions: First, that courts should (for the most part) forget about "races to the courthouse" and worry instead about factors that are easier to apply and anticipate. And second, that declaratory filers should have to give notice of their intention to file suit, thereby offering the natural plaintiff a fair opportunity to exercise its traditional litigation rights without being unfairly "beaten" to the courthouse.