The Intersection of the Anonymous Right to Free Speech, the Texas Citizens Participation Act, and Rule 202 Pre-Suit Discovery

Originally published by Claire James.

The Austin Court of Appeals recently considered how the Texas Citizens Participation Act (TCPA) applies to a Rule 202 petition for pre-suit discovery in a case involving anonymous online speech.  The TCPA requires a court to dismiss a legal action when a movant shows the action relates to the movant’s exercise of free speech rights.  Rule 202 of the Texas Rules of Civil Procedure permits a person to petition a court for an order authorizing depositions before a suit is filed in order to investigate a potential claim or suit.  The Austin appellate court was called upon to answer the question of how these two requirements coexist.

In In re Chris Elliott, No. 03-16-00231-CV (Tex. App—Austin Oct. 7, 2016), PumpStopper.com, which is registered to Chris Elliott, published an article reporting negatively about MagneGas, a Delaware technology company.  MagneGas filed a Rule 202 Petition and a Motion to Compel Elliott’s deposition to investigate a potential claim against “the authors, publishers, and distributors” of The Pump Stopper, who MagneGas alleged made false and misleading claims about the company.

John Doe 1 (“Doe”), who identified himself as an author, publisher and/or distributor who utilizes the website, filed a TCPA motion to dismiss the Rule 202 petition.  Doe argued the Rule 202 petition related to Doe’s exercise of his right to free speech and the rights of free speech of other potential defendants.

After a brief non-evidentiary hearing, the trial court ordered Elliott’s deposition.  Elliott then filed a writ of mandamus with the Austin Court of Appeals and sought emergency relief.

The court of appeals concluded that Doe’s TCPA motion to dismiss was sufficient to invoke the TCPA and to stay discovery.  The court held that the TCPA’s definition of “legal action” is broad and encompasses a Rule 202 petition, as it includes “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”  The court noted that the TCPA’s language specifically states that although the court may allow specified and limited discovery relevant to the TCPA motion to dismiss on a showing of good cause, otherwise all discovery is suspended until the court has ruled on the motion to dismiss.  Because the district court’s order allowing Elliott’s deposition was not the specified and limited discovery contemplated by the TCPA, the appellate court held that the district court had abused its discretion by permitting the deposition before ruling on Doe’s TCPA motion to dismiss.

In re Chris Elliott, No. 03-16-00231-CV (Tex. App.–Austin Oct. 7, 2016).

The post The Intersection of the Anonymous Right to Free Speech, the Texas Citizens Participation Act, and Rule 202 Pre-Suit Discovery appeared first on Reverse & Render.

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NDA Tolling Clauses

Originally published by Patrick Keating.

When using a non-disclosure agreement or non-use agreement (collectively, a “NDA”) to protect trade secrets, a good practice is to include a tolling clause in the contract to extend the life of the NDA if the restricted party breaches the contract. 

Imagine a plaintiff who files a theft of trade secrets claim against a defendant who continuously violates a NDA.  If the lawsuit takes several years to complete, the NDA might expire before the plaintiff obtains a judgment.  The defendant would then argue that the plaintiff is not entitled to an injunction prohibiting the defendant’s further use or disclosure of the trade secrets because the NDA expired.  After all the defendant asserts, “Regardless of whether I breached the NDA, I am entitled to use the trade secrets once the contractual restrictions expire.”

To avoid this situation, include language in a NDA stating that the term of the NDA will be extended for the amount of time that the restricted party breaches the contract.

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Federal Court Backs Harvard in Law School Plagiarism Challenge

Originally published by lawschool academicsupport.

Inside Higher Ed included a short entry with a link to the U.S. Court of Appeals, First Circuit opinion in the case here.

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Bexar County Jury Awards $127,000 in Attorney Fees

Originally published by Thomas J. Crane.

Faith Gonzales worked at a Bill Miller barbecue restaurant. As any San Antonian would know, Bill Miller’s is a fast-food version of barbecue and is a local institution. She complained about discriminatory conduct and was fired in 2008. She filed her charge with the EEOC. The matter did not go to trial until January, 2013. After a two day trial, the Bexar County Court-at-law jury awarded $30,000 in lost pay and emotional suffering damages. Most juries award relatively small amounts for lost pay and emotional suffering type damages.

As often happens with civil rights lawsuits, the larger money is in the attorney’s fees. Ms. Gonzales’ lawyers submitted an attorney fee request for $65,000. They submitted the request to the judge after the trial, not to the jury and not during trial. The employer, Bill Miller, argued the fee request should have been made to the jury. The judge disagreed and awarded $60,000 in attorney’s fees.

On appeal, the Fourth Court of Appeals in San Antonio agreed with the defendant. It said attorney’s fees must be decided by a jury, even though at least one Texas Supreme Court case, El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), indicates that judges should decide attorney fees. See the decision in Gonzales v. Bill Miller  here. The Fourth Court noted that two other Texas courts of appeals have found that attorney’s fees should be determined by the court, not by a jury. The Fourth Court noted that the reasonableness of an attorney fee is a fact issue. The court also noted correctly that El Apple I did not state clearly that a court should determine attorney’s fees. It did refer generally describe the lower court’s role as reviewing attorney fee requests for reasonableness. El Apple I, pp. 763-64. It would be impossible for a jury to perform that role. Nevertheless, the Fourth Court added, the Supreme Court in El Apple I was not presented with the question of who should decide the question of attorney’s fees. That is true. The Texas Supreme Court did not address who specifically should determine a jury fee award.

So, the appellate court returned the case to Bexar County Court-at-Law No. 7 for trial simply on the issue of attorney’s fees. The jury then awarded some $127,000 in attorney’s fees. The Defendant may be wishing it had not sought this appeal, after all.

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Halloween 5th Circuit Update!

Originally published by David Coale.

From sister blog 600Camp – celebrate Halloween with these Five Recent Fifth Circuit Cases to Know. And don’t forget to vote for Super Lawyers by this Friday, October 28!

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Suit Affecting Parent Child Relationship: Who Needs One and Why?

Originally published by Evan Hochschild.

When two people who have not been married have a child, the lawsuit that is filed in court to determine custody, duties, rights and visitation (among other things) for a child is called a Suit Affecting Parent Child Relationship (SAPCR). In most instances the process begins with a request to adjudicate the parentage of the child and father. A SAPCR operates similar to that of a divorce except only the circumstances of the child(ren) are taken into consideration.

What exactly may be taken into possession?

The following are subjects that are typical in a SAPCR:

1. health insurance/child support and who will pay it
2. geographic restriction- will the child(ren) be limited to living in a particular city, county or set of counties?
3. visitation– where and how often
4. possession of the child(ren) and who gets to pick where they live
5. rights and duties of both parents regarding medical, educational or other important decisions

Modifying The Court Order

Once the parties to a SAPCR either come to an agreement on final orders or a court rules on a case, parties must abide by the order until a modification is sought. In order to modify a SAPCR, one party must file in the court of continuing jurisdiction.

To close out this post it is important to point out that not only parents can file a SAPCR. Grandparents, uncles, aunts, sisters, etc. may file as well if they’ve had actual care and control of the child for six months prior to the SAPCR having been filed. For instance, if one or both parents are deceased, a caregiving family member may file a SAPCR in order to have the rights and duties discussed above conferred upon them.

The attorneys with the Law Office of Bryan Fagan are experienced in assisting clients who are a party to a Suit Affecting Parent Child Relationship. Please contact us today with any questions for the opportunity to meet with one of our attorneys free of charge.

Law Office of Bryan Fagan | Spring, Texas Family Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding terminating parential rights, it’s important to speak with one of our Spring Family Lawyers right away to protect your rights.

Our Family lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Family cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Denton to Enact Ban of Phone Usage While Driving

Originally published by Anderson Law Firm's Injury Blog.

Over the past several decades, the rise of technology has added ease to our lives, but it has come at a price. Texting, making phone calls or checking email while driving is commonplace, but these practices have increased the number of wrecks all across Texas.

Denton Votes On Cell Phones and Driving

One North Texas city has decided to join other cities nationwide in an attempt to end road accidents caused by drivers using their phones while driving. Denton, located just north of Fort Worth, will soon vote to determine whether or not the use handheld devices will be banned while driving. The vote is set to take place during the November 1st city council meeting.

If the vote to ban cell phone use while driving passes, Denton will join nearby cities Bedford, Hurst and Watauga.

The Outcome of the Vote Is Uncertain

Although many of Denton’s residents are in favor of the ban, there are residents who are against it, too. The November 1st vote currently has a divided prospect: one half of the council members approve the ban, and the other half disapproves of the ban.

Those against the ban have questioned its effectiveness, and believe that banning cell phone use while driving is an example of government overreach. Other opponents question law enforcement’s ability to detain those found on their phones while driving.

What’s the Current Law Against Distracted Driving in Texas?

There is currently no statewide ban on cell phone use while driving. However, certain cities prohibit the practice.

Of course, cell phone use is not the only form of distracted driving. Anything that takes a driver’s attention away from the road is a distraction. Some additional examples of this include:

• Eating or drinking
• Smoking while driving
• Riding with a loose pet in the car
• Turning around to get something from the back seat
• Playing music too loudly
• Daydreaming
• Applying makeup

There are no laws in Texas that prohibit any of these examples. However, if you were hurt in a wreck because another driver was doing one of these things, you can still make a claim against them. That’s because distracted driving is considered “negligent behavior.” It’s not illegal, but it’s putting others into harm’s way and therefore the distracted driver can be held responsible for a wreck that occurs as a result.

If you were hit by a distracted driver, you are entitled to make a claim for compensation under Texas law.

> Learn More About Distracted Driving Claims in Texas

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