Lawyer's $100 Million Defamation Case May Force Texas Anti-SLAPP Law Shakeout

For nearly seven years, the U.S. Court of Appeals for the Fifth Circuit has managed to avoid answering a vital First Amendment question: Can Texas’ Anti-SLAPP statute be used to defeat defamation claims filed in federal courts?

The case that may force the Fifth Circuit to answer that question involves an attempt to use the statute to defeat a $100 million federal lawsuit filed by a Texas attorney claiming he was fired from a law firm because of internet postings accusing him of being a “Nazi” and a “white supremacist.”

Jason Van Dyke, a Denton attorney, filed the suit in a Denton County state district court seeking damages against Thomas Christopher Retzlaff, a critic who last year filed a complaint against Van Dyke with the State Bar of Texas. Retzlaff later removed the suit to federal court and moved to dismiss it under the Texas Citizen’s Participation Act (TCPA)—a law passed by the Texas Legislature in 2011 that allows judges to quickly dismiss cases that infringe on free speech rights, and forces a plaintiff to pay the defendant’s court costs.

Last month, U.S. District Judge Amos Mazzant of Sherman denied Retzlaff’s motion to dismiss, ruling that the Fifth Circuit has yet to address whether the TCPA applies in federal court. Specifically, Mazzant noted that the Fifth Circuit has yet to perform a so-called Erieanalysis on the matter, which calls for an analysis of whether a state law is procedural or substantive. State procedural rules are not applied in federal court. If the law is held substantive, the court then determines whether it conflicts with federal law—and if it does, then federal law applies.

Retzlaff appealed Mazzant’s decision to the Fifth Circuit on July 30 and also filed a motion to stay proceedings before Mazzant while the matter pends before the Fifth Circuit. In his motion for a stay, Retzlaff argued to Mazzant that the judge overlooked a 2009 ruling by the Fifth Circuit in Henry v. Lake Charles American Press that held the Louisiana anti-SLAPP statue applies in federal court under an Erie analysis.

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