#notholistic

Originally published by David Coale.

The Fifth Circuit affirmed the denial of a motion to dismiss under the TCPA (the Texas “anti-SLAPP” statute), noting that the appellant’s arguments to the district court limited him to “only . . . the theory that the TCPA applies because the claims are based on, related to, or in response to a communication in or pertaining to a judicial proceeding” within the meaning of that statute. The appellant submitted a Rule 28(j) letter citing a recent Texas Supreme Court opinion that, inter alia, recommended a “holistic review of the pleadings” in the TCPA context. The Fifth Circuit did not agree, characterizing this “point, at its core, [a]s the Texas Supreme Court’s application of that court’s argument waiver principles,” and observing: “Because this court consistently applies its waiver precedent in diversity jurisdiction cases, we will do so here.” Diamond Consortium, Inc. v. Hammervold, No.17-40582 (May 3, 2018).

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