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In re In re Lipsky

ELR Citation: 45 ELR 20082
Nos. 13-0928, (Tex., 04/24/2015)

The Supreme Court of Texas held that courts may consider all relevant circumstantial evidence when granting or denying an expedited motion to dismiss suits that could stifle a defendant's communication on matters of public concern under the Texas Citizens Participation Act (TCPA). The case arose after landowners alleged that nearby hydraulic fracturing operations contaminated their drinking water, causing it to become flammable. An administrative court held to the contrary, but the landowners continued to blame the operator for the contamination in the media, and they filed suit in court alleging negligence and nuisance. The operator filed a counterclaim alleging defamation, business disparagement, and civil conspiracy. The landowners then sought to dismiss the counterclaim under the TCPA, arguing it was an improper attempt to suppress their First Amendment rights. A trial court denied the landowner's motion to dismiss under the TCPA. An appellate court then ruled that some of the counterclaims should be dismissed under the TCPA. At issue before Texas' highest court was the evidentiary standard to apply in such cases. The court ultimately held that although the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, it does not impose a higher burden of proof than that required of the plaintiff at trial. Here, clear and specific evidence as well as relevant circumstantial evidence support the appellate court's disposition of the proceedings below.