More than a year after the Houston Aquarium opened an expanded outdoor space for its four white tigers, litigation over the big cats’ previous indoor habitat reached the Texas Supreme Court.
Justices earlier this month heard arguments over $174,000 in sanctions a Harris County judge ordered the Aquarium and its owner Landry’s to pay following the dismissal of a defamation suit against animal welfare activists.
The case, Landry’s Inc. and Houston Aquarium v. Animal Legal Defense Fund, et al., carries significant implications for the Texas Citizens Participation Act, which was enacted by the Legislature to require swift dismissal of frivolous “SLAPP” lawsuits. SLAPP is an acronym referring to strategic lawsuits against public participation, which critics say corporations use to squelch public criticism.
Landry’s and its supporters, including the Texas Public Policy Foundation and Goldwater Institute, urge the court to establish a framework for TCPA monetary sanctions designed to deter corporate entities from filing such lawsuits in the future.
The six-figure award “sticks out like a sore thumb among TCPA sanctions – in both its amount and its lack of corroborating deterrence-based evidence,” said Landry’s lawyers from Norton Rose Fulbright and Baker Botts in a motion for rehearing filed after the court initially declined to hear their appeal.
Lawyers representing the animal rights activists say the judiciary should refrain from rewriting the TCPA to make it easier for frivolous SLAPP suits to evade mandatory deterrence awards.
Another issue is whether public statements made by the activists and their attorneys about a pending lawsuit against Landry’s over the tigers’ enclosure were connected to a judicial proceeding and thus exempt from the judicial-proceedings privilege and attorney-immunity doctrine.
The legal dispute began in 2015 when radio station owner Cheryl Conley was allowed by Landry’s to photograph the tigers’ holding pens. More than a year later an attorney with the Animal Legal Defense Fund and attorneys from Irvine & Conner sent notice that they intended to sue under the Endangered Species Act over the indoor exhibit and tiger holding areas. The impending suit was publicized by the defense fund to news outlets and on social media.
Fifty-nine days after the defense fund sent the sixty-day notice letter, Landry’s sued the defense fund, one of its attorneys, and Conley for defamation and business disparagement.
After the trial judge dismissed Landry’s suit and ordered the sanctions, Landry’s appealed. The 14th Court of Appeals in 2018 determined that the judicial-proceedings privilege applies to allegedly defamatory or disparaging statements as a matter of law and that Landry’s failed their initial burden under the TCPA.
Aaron Streett of Baker Botts began the Zoom arguments for Landry’s, noting that traditional common law rules and 25 states have recognized that out-of-court speech must bear a functional relationship to a judicial proceeding to qualify for the judicial proceedings privilege.
“If attorneys were to enjoy some additional immunity beyond that of parties, the parties could simply outsource their defamatory media statements through their attorneys, thereby evading all of the limits on the judicial proceedings privilege,” said Street, chair of the firm’s Supreme Court and constitutional law practice group.
Landry’s position was supported by arguments from amicus Rodney Smolla, dean of Widener University Delaware Law School. He said the court should adopt a bright-line rule that an attorney would get absolute immunity in speaking in connection with a judicial proceeding. “Once you venture outside that, you lose your absolute immunity,” he said.
Justice Debra Lehrmann asked Smolla whether a judicial proceeding was different from sending a notice of intent to sue to the media. He said the letter itself receives absolute immunity but a lawyer talking about the impending suit to the media might not be protected.
Arguing for the activists, Ryan Clinton said Landry’s lawsuit is a good example of behavior the legislature was trying to deter. He said the restaurant and entertainment empire presented zero evidence of any lost customers or revenue due to the activists’ publicity.
Justice Jimmy Blacklock asked about the justification for providing immunity to lawyers for behaviors for which everybody else is not immune. Clinton said a lawyer might need to publicize a case to try and get witnesses to come forward.
Clinton — a shareholder with Austin’s Davis, Gerald & Cremer — said concern about where the court might land on attorney immunity has caused him to decline to speak to reporters about the case before the court out of concern over being sued.
“I wish I could have taken the call and spun the article the way they did,” said Clinton.
Justices Eva Guzman, Brett Busby and Rebeca Aizpuru Huddle were not present for the arguments.
View the arguments here.