Category Archives: Tennessee Public Participation Act

Victims of SLAPP-Suits Cannot Recover Their Legal Fees If Plaintiffs Withdraw Their Claims Before Hearing, Holds Tennessee Supreme Court

Appeals, Civil Procedure, Tennessee Public Participation Act, Tort Law, ,

By Daniel A. Horwitz:

Strategic lawsuits against public participation—better known as “SLAPP-suits”—use the legal system to punish constitutionally protected speech.[1]  The Tennessee Supreme Court has explained that “[t]he primary aim of a SLAPP is not to prevail on the merits, but rather to chill the speech of the defendant by subjecting him or her to costly and otherwise burdensome litigation.”[2]  Using this definition, it is hard to argue that plaintiffs are engaged in anything other than quintessential SLAPP litigation when they: (1) sue someone for their speech; (2) run up a defendant’s litigation expenses for as long as possible before a hearing; and then (3) withdraw their claims just before a reviewing court can rule on them.

Fortunately, like many jurisdictions, Tennessee has enacted an anti-SLAPP statute called the Tennessee Public Participation Act, or the “TPPA.”  As Tennessee’s Court of Appeals has explained, “the TPPA is largely intended to deter SLAPP lawsuits and prevent litigants from spending thousands of dollars defending themselves in frivolous litigation.”[3]  “[T]housands of dollars,” it should be noted, is a dramatic undercount.  Given Tennessee courts’ routine willingness to allow SLAPP-suit filers to delay proceedings through discovery, amendment, and other litigation tactics, the cost of defending a SLAPP-suit through a TPPA hearing routinely exceeds $25,000.00, and it often eclipses hundreds of thousands of dollars or, in some cases, millions.

In theory, the expenses imposed on SLAPP-suit victims do not matter at the end of the day.  That is because the TPPA contains an expense-shifting provision—Tennessee Code Annotated section 20-17-107(a)—that requires trial courts to “award to the petitioning party: Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition[.]”  Thus, no matter how long the litigation takes, the TPPA assures SLAPP-suit victims that they will recover their expenses at the end of it.  As a result, assuming a plaintiff’s ability to pay the award, the TPPA promises SLAPP-suit victims that they will (mostly[4]) be made whole when litigation ends.

Unsurprisingly, those who are engaged in abusive litigation that is intended to burden speakers with uncompensated expenses are uninterested in paying their victims.  And to achieve their nefarious goals, they have employed a simple tactic: file SLAPP-suits; run up a defendant’s litigation expenses for as long as possible; and then voluntarily dismiss their claims on the eve of hearing before a court can rule on them.  Lawyers who make SLAPP-suits their business also have employed this tactic over, and over, and over again, often nonsuiting literally minutes before hearing, the night before hearing, or even during a hearing on a TPPA petition.  After doing so, they have insisted that SLAPP-suit victims are not entitled to recover a penny of their legal expenses, because the voluntary dismissal precludes all further litigation, and a court has never granted a petitioner’s TPPA petition.

If blessing such a tactic seems antithetical to what the TPPA was designed to accomplish, that is because it is.  Filing a bogus speech-based lawsuit, imposing substantial litigation expenses, and—recognizing that one’s claims have no chance of prevailing—dismissing the case right before a court can rule is definitionally the behavior that the TPPA was designed to deter.  Even so, dozens if not hundreds of plaintiffs have done exactly that in the short time since the TPPA was enacted in 2019.

The certainty of fee-shifting also is what permits lawyers to defend SLAPP-suit victims on a contingent basis.  Without contingency representations, SLAPP-suit victims would be forced to expend—upfront—tens of thousands, hundreds of thousands, or even millions of dollars to defend their speech against bogus lawsuits: an amount of money that few speakers have to spend even if they wanted to.  Further, when faced with the choice of taking down a negative Yelp! review or having to liquidate one’s life-savings to defend it, self-censoring to avoid (or end) litigation becomes an easy choice.

Sadly, in a unanimous October 9, 2024 opinion authored by Justice Jeffrey S. Bivins, the Tennessee Supreme Court has now blessed the tactic of filing SLAPP-suits, running up litigation expenses, and then parachuting out of the litigation without consequence by nonsuiting on the eve of hearing.  The opinion arose out of the most sympathetic facts possible: a misbehaving landlord filing facially meritless litigation against speakers who successfully advocated for tenants that the landlord had tried to evict illegally—outside the legal process and in contravention of a federal eviction moratorium—by cutting off their heat during the middle of winter.  In response to TPPA petitions filed by those speakers, landlord Robert E. Lee Flade ran up the speakers’ litigation costs for roughly seven months; delayed a ruling following an initial TPPA hearing by convincing a trial court to allow him to take discovery first; and then voluntarily dismissed all of his claims just before a second TPPA hearing, leaving the sued speakers with tens of thousands of dollars in legal expenses that the Tennessee Supreme Court has now held they cannot recover due to Mr. Flade’s strategic dismissal.

The calamitous consequences of the Tennessee Supreme Court’s opinion in Flade—which strips the TPPA of its deterrent value—are assured.  Simply put: No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees.  Instead, such abusers of the legal process are now empowered—as a matter of right—to file SLAPP-suits; wait and see if their victims are willing or able to hire an attorney to defend against them; run up their victims’ litigation expenses as long as possible before a TPPA hearing; and then voluntarily dismiss their claims before a court can rule.  Because lawyers who defend SLAPP-litigation—even successfully—can no longer be assured that they will be paid for doing so, Flade also represents the end of SLAPP-suit contingency representations in Tennessee.

Confronted with the inevitable results of sanctioning this proven abuse, the Tennessee Supreme Court’s opinion explains that “[w]e do not intend to minimize [these] concerns.  However, the[se] policy-based arguments are best addressed to the legislative branch.”  Thus, according to the Tennessee Supreme Court, its hands were tied by the text of Tennessee Rule of Civil Procedure 41.01(1), which “permits liberal use of voluntary nonsuits at any time prior to ‘final submission’ to the trial court for decision in a bench trial or in a jury trial before the jury” absent certain specified exceptions.

Lest anyone be fooled, the Tennessee Supreme Court has never followed this approach to interpreting Rule 41.01(1) before now.  For example, despite the Rule’s explicit prohibition against taking a voluntary dismissal “when a motion for summary judgment made by an adverse party is pending,” the Tennessee Supreme Court has held that “it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”[5]  The Tennessee Supreme Court has found other “implicit” exceptions to Rule 41.01(1)’s text, too, including inventing an entire category of exceptions for what it calls “The Vested Rights Implied Exception.”[6]  Thus, far from interpreting Rule 41 in a way that ties the judiciary’s hands, the Tennessee Supreme Court has interpreted it atextually in a way that furthers judicial policy preferences throughout the Rule’s existence.

With these considerations in mind, no one should be misled by the Tennessee Supreme Court’s claim that this result was compelled by text.  It was not—and the TPPA plausibly fell within three recognized exceptions to Rule 41.01(1) (two of them text-based) anyway.  The Tennessee Supreme Court’s effort to distinguish as “inapposite” TPPA-based claims from several other claims that Tennessee law holds courts may adjudicate post-nonsuit—including claims “involving sanctions under Rule 11 of the Tennessee Rules of Civil Procedure,” “an award of damages for a frivolous appeal under Tennessee Code Annotated section 27-1-122,” and “legislation concerning ‘abusive civil actions’”—also demonstrates the malleability of the judiciary’s approach to the question presented by itself.

In summary, as it has before, the Tennessee Supreme Court made a policy choice; here, to defang the TPPA and reward those who file SLAPP-suits in Tennessee with the freedom to do so without fear of incurring consequences.  The repercussions of that decision will be borne most heavily by the people who need the TPPA most—speakers of modest means who need lawyers to defend them on contingency—who will now be forced to incur significant debt to defend their speech; self-censor to avoid or end litigation; or defend themselves pro se.  No one should celebrate this policy choice, and Tennessee’s free speech protection scorecard has now been downgraded as a result of it.

Read the Tennessee Supreme Court’s unanimous ruling in Flade v. City of Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736 (Tenn. Oct. 9, 2024), authored by Justice Jeffrey Bivens, here:  https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-00553-SC-R11-CV.pdf.

Questions about this article?  Contact the author at daniel [at] horwitz.law.

Like ScotBlog?  Join our email list or contact us here, or follow along on facebook at https://www.facebook.com/scotblog.org.  You can also subscribe to the author’s aspirationally weekly newsletter on the Tennessee Court of Appeals—Intermediate Scrutiny—here: https://horwitz.law/intermediate-scrutiny-blog-signup-form/

[1] Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (June 15, 2020),  https://perma.cc/A8F4-FQ6G.

[2] Charles v. McQueen, 693 S.W.3d 262, 267 (Tenn. 2024).

[3] Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 670 (Tenn. Ct. App. 2021)

[4] By statute, a defending litigant can only recover expenses “incurred in filing and prevailing upon the petition[.]”  Tenn. Code Ann. § 20-17-107(a)(1).  Thus, not all expenses are compensable, so the provision falls slightly short of this goal.

[5] See, e.g., Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 593 (Tenn. 1974) (“it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”); Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975) (“where a summary judgment is pending, the right to a nonsuit rests in the sound discretion of the trial judge.”).

[6] Flade v. Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736, at *13 (Tenn. Oct. 9, 2024).

Intermediate Scrutiny for January 5, 2024

Appeals, Defamation, Editorial, Evidence, Tennessee Public Participation Act, Uncategorized

ScotBlog Readers:

The delinquent editor of this unreliably updated blog has started a new project: A weekly newsletter devoted to Tennessee Court of Appeals opinions.  The first version is reprinted below, though future versions won’t be published here.  If you like what you see, you can subscribe here: https://horwitz.law/intermediate-scrutiny-blog-signup-form/.

A snappy weekly newsletter from the lawyers at Horwitz Law, PLLC summarizing the week’s decisions from the Tennessee Court of Appeals.

January 1–5, 2024

  • “Extremely intoxicated, hostile, and belligerent” Army lieutenant makes a series of increasingly poor decisions. After a night out drinking at a bar during a bachelor party, he removes his shirt, places it on the ground, and starts urinating on it. He then gets himself arrested and charged with public intoxication, resisting arrest, and assault on a police officer. Afterward, he engages in extensive Facebook messenger correspondence with his “companion” from the evening—distinct from his “then-girlfriend, now wife”—in an attempt to ascertain what happened, and she tells him exactly how intoxicated, aggressive, and violent he was. The Secretariat of bad judgment then sues his arresting officers “for defamation and negligence per se” (claiming, among other things, “that he was not intoxicated, aggressive, or violent when he was arrested”). During the litigation, he repeatedly conceals and otherwise lies about his damning correspondence with his “companion,” which he alternately claims did not exist, he forgot about, his wife told him to delete, and/or was work product created at the direction of his attorney. Davidson County Circuit Court: Your “blatant prevarication and misconduct warrants the most severe sanctions,” so you are ordered to pay over $60,000 in fees and costs, and all of your claims are dismissed with prejudice. Tennessee Court of Appeals: And those sanctions “were directly related to the discovery abuses and were not excessive under the circumstances.” (DAH)
  • After Husband and Wife divorce, Wife sues Husband based on a provision of their marital dissolution agreement that says she gets half the equity in their formerly shared home “when the house sells.” Chancery Court for Montgomery County: Wife gets half the equity as of the date of the Parties’ divorce in 2019. Tennessee Court of Appeals: No, wife gets half the equity as of the date of the house’s sale in 2023. But Husband gets an unjust enrichment credit for the twenty-two consecutive monthly payments that he has already paid Wife based on their alleged oral agreement about the amount of her equity interest, even though the agreement violates the statute of frauds. This case is otherwise remanded so Husband can introduce evidence about improvements and other expenditures he made and so Wife can introduce evidence that she’s entitled to reimbursement for her rent because Husband kicked her out before the house was sold. Also, the relevant provision of the Parties’ “not a model of clarity” MDA—which resulted from “the parties’ self-drafting of a form document they obtained from an unknown source”—is internally inconsistent, so this entire opinion is declared non-citable. (DAH)
  • Homeowner contracts with Contractor to build a “log home.” Contractor contracts with Subcontractor to provide some labor and materials. Subcontractor: I did more than $60,000 of work for which Contractor never paid me, so I’m entitled to payment from Homeowner, who flipped the property (which cost $382,000.00 to build) for a cool $1.5 million after construction was completed. Tennessee Court of Appeals: Not yet you aren’t. Although Tennessee law allows unpaid subcontractors to file unjust enrichment claims against property owners, they have to exhaust their available remedies against the contractors with whom they were in privity first, and getting a default judgment against the deadbeat contractor without demonstrating that you can’t collect on it isn’t exhaustive enough. (DAH)
  • Company sues Employees for holding events using the company’s name and failing to remit proceeds. During the litigation, Employees’ counsel “inadvertently included”—twice—a privileged email from one of the Employees in his trial court filings. Employees’ counsel then continues to file the privileged email in the court record and “discusses the substance and contents of the email at length” at least twice more after that. Employees: Company shouldn’t get to use the privileged email, particularly because Company “trap[ped]” us into making a bunch of apparently false statements using information gleaned from it. Tennessee Court of Appeals: It’s true that Tennessee Code Annotated § 23-3-105 subjected the email to the attorney-client privilege. But Tennessee Rule of Evidence 502 requires privilege holders to take “reasonable steps to prevent disclosure,” and repeatedly filing and citing the email was definitely not that, so the email is now admissible. The waiver of privilege is limited to the email alone, though; it doesn’t extend to “any undisclosed communications concerning the same subject matter.” (DAH)
  • Company A initiates arbitration proceeding against Companies B and C, wins, and then petitions the Davidson County Chancery Court to confirm the arbitration award. Companies B and C: Hold on, we didn’t even know the proceeding existed until we received the motion to confirm the award! Davidson County Chancery Court: That’s too bad; you all objected too late, so the arbitration award is confirmed. Tennessee Court of Appeals: Actually, because “absence of notice may warrant vacatur under the [Federal Arbitration Act],” the award is vacated for now, in part because Company A failed to include a ton of information in the appellate record that would allow us to determine when notice was provided. On remand, the trial court must determine both whether one of the companies even agreed to arbitrate and when the companies actually received notice of the arbitration, too. (DAH)
  • Father and Stepmother sue to terminate Mother’s parental rights over Child. Father/Stepmother: Child lives with us, and Mother hasn’t seen her or supported her in years, among other issues. Chancery Court for Sumner County: And those are both valid grounds for termination, but Tennessee’s termination of parental rights statutes recognize “that terminating an unfit parent’s parental rights is not always in the child’s best interests,” and it is not in Child’s best interest here. Tennessee Court of Appeals: “Upon review of the evidence, we agree with the trial court’s assessment and findings.” (Editorial note: Mother nearly had her parental rights terminated because she waived multiple potentially valid defenses, which Tennessee law really should not allow.) (DAH)

A victory for Horwitz Law, PLLC client Theresa Baldwin! In 2022, Ms. Baldwin was sued for a cornucopia of speech-based tort claims after she criticized two adults (one of them an oft-sanctioned lawyer) who took her minor daughter into their home and elsewhere against Ms. Baldwin’s instructions to stay away. And because—after more than a year of litigation—the Plaintiffs failed to establish any element of their various claims, the Tennessee Public Participation Act means that Ms. Baldwin wins and gets to recover her legal fees. Read the Circuit Court of Robertson County’s Order Granting Defendant’s Tenn. Code Ann. § 20-17-104(a) Petition to Dismiss the Plaintiffs’ Amended Complaint Pursuant to the Tennessee Public Participation Act here: https://horwitz.law/wp-content/uploads/2022-247-Order-Granting-TPPA-Petition.pdf.

New Tennessee Court of Appeals Ruling Settles Previously Unanswered Questions About the Tennessee Public Participation Act

Defamation, Tennessee Public Participation Act,

By Daniel A. Horwitz:

As news of Dominion Voting System’s record-shattering settlement in its defamation case against Fox News spread across newswires, the Tennessee Court of Appeals quietly issued a landmark defamation decision of its own.  In particular, in a little-noticed April 18, 2023 ruling in Pragnell v. Franklin, No. E2022-00524-COA-R3-CV, 2023 WL 2985261 (Tenn. Ct. App. Apr. 18, 2023), the Court of Appeals settled three critical and previously unanswered questions about the Tennessee Public Participation Act, Tennessee’s still-novel anti-SLAPP statute.

Prangell arose from a nasty fallout among former coworkers at investment advisory firm Innovative Advisory Partners.  After four members of the firm left to form a new investment group, a dispute arose and litigation ensued.  Shortly after that litigation was initiated, Innovative Advisory Partners amended something called a “Form U5 Uniform Termination Notice” to state that its former members had been discharged due to “[v]iolation of client privacy rights, misrepresentation and selling away”—the latter meaning selling securities without approval or authorization.  Maintaining that such allegations had been made maliciously and with actual knowledge that the statements were false, the former members sued Innovative Advisory Partners and its CEO for defamation.

The Plaintiffs’ defamation suit began with the trial court issuing a categorically unconstitutional prior restraint enjoining the Defendants from publishing further information that the Plaintiffs contended was false—a frustratingly common occurrence in Tennessee that received no further mention.  The Defendants then petitioned to dismiss the Plaintiffs’ lawsuit under the Tennessee Public Participation Act.  As grounds, the Defendants asserted that the Plaintiffs had filed the complaint in response to Defendants’ exercise of their right to free speech, that the Defendants’ speech related to a matter of public concern, and that the statements in their amended U5 disclosure were true.

The Plaintiffs responded in opposition to the Defendants’ TPPA Petition, appending several declarations that at least facially supported their disputed defamation claim.  The Plaintiffs further maintained that the Defendants’ TPPA Petition was frivolous and that they were entitled to attorney’s fees for having to respond to it.  The Defendants then replied with evidence of their own.

Upon review of the Parties’ filings, the trial court found that the TPPA applied, it denied the Defendants’ TPPA Petition on its merits, and it ruled that it was not filed frivolously.  Everyone appealed.  Thereafter, the Court of Appeals accepted interlocutory review, which TPPA petitioners and respondents may seek as a matter of right under Tenn. Code Ann. § 20-17-106 (“The court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.”).

Upon review, the Court of Appeals resolved three previously unanswered questions about how critical provisions of the TPPA operate, all of which will provide substantial guidance for litigants and trial courts in future TPPA cases.

First, the Court of Appeals settled the definition of “prima facie” under the TPPA.  The term is used twice in the statute.  It appears, first, in Tenn. Code Ann. § 20-17-105(a), which provides at step one of the TPPA’s burden-shifting framework that: “The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.”  It also appears a second time, in Tenn. Code Ann. § 20-17-105(b), at step two of the TPPA’s burden-shifting framework, which provides that: “If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.”

The reason the definition of “prima facie” matters—and why the quantum of evidence necessary to satisfy the standard is so critical—is because it affects whether the TPPA applies at all, and if so, whether a defendant’s TPPA petition should be granted.  Previous litigants—including Daily Wire host Candace Owens en route to her record-setting TPPA win against a failed congressional candidate earlier this year—had fought over the proper definition of “prima facie” within the meaning of the TPPA, given that the term been defined differently across Tennessee law in several circumstances.  Cf. State v. Bryant, 585 S.W.2d 586, 589 (Tenn. 1979) (“‘prima facie’ may be used in various senses, with a range of meaning”).  Resolving this dispute, the relevant portion of the Court of Appeals’ opinion states that:

Tennessee courts have defined the prima facie case standard in other contexts, thus rendering it a term with a well-recognized meaning in the common law. See, e.g., Anderson v. State, 55 Tenn. 13, 14, 1873 WL 5945, at *1 (1873) (“Prima facie evidence is that evidence which is sufficient to establish a fact unless rebutted.”); Union Planters Corp. v. Harwell, 578 S.W.2d 87, 93 (Tenn. Ct. App. 1978) (“As we understand it, a prima facie case is made out when some credible proof … is presented on the issues required to be offered in evidence by a plaintiff for a plaintiff’s recovery.”); Pickard v. Berryman, 142 S.W.2d 764, 769 (Tenn. Ct. App. 1939) (explaining that “prima facie case” “means merely that [the plaintiff’s] evidence, assuming it to be true, is sufficient to prevent his suit being dismissed”); Macon Cnty. v. Dixon, 100 S.W.2d 5, 9 (Tenn. Ct. App. 1936) (“Prima facie evidence is that which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for that purpose.”).

Pragnell, 2023 WL 2985261, at *10.

Thus, the prevailing definition of “prima facie” for purposes of Tenn. Code Ann. § 20-17-105(a) and (b) requires that “‘some credible proof’” be presented to support a litigant’s claim.  Id. at *11 (quoting Union Planters Corp., 578 S.W.2d at 93).  The Court of Appeals also held that this standard does not apply to the third step of the TPPA’s burden-shifting framework (regarding a defendant’s ability to establish a valid defense) and remanded for reconsideration of the matter, explaining that:

To the extent that the initial two steps of the dismissal procedure require only a prima facie showing pursuant to the express statutory language, see Tenn. Code Ann. § 20-17-105(c), the rules of statutory construction instruct that we should infer “that if the Legislature had intended to enact a certain provision missing from the statute, then the Legislature would have included the provision. Thus, the missing statutory provision is missing for a reason—the Legislature never meant to include it.” Effler v. Purdue Pharma L.P., 614 S.W.3d 681, 689 (Tenn. 2020). In other words, with respect to establishing a defense to the defamation claim, Defendants would be required to make more than a prima facie demonstration in order to achieve dismissal of the defamation claim.

Id. at *12.

Second, in a blockbuster footnote that bears heavily upon the multibillion-dollar defamation claim pending between SmileDirectClub and NBC Universal, the Court of Appeals held that no inferences are to be drawn in favor of the opposing party at the TPPA stage.  Id. at n.4 (“We note that the TPPA does not state that the evidence must be viewed in the light most favorable to a particular party, as is the case with summary judgment proceedings.”).  This means that—unlike the standard for summary judgment—evidence furnished at the TPPA stage should not be construed liberally by a trial court or in a manner that is favorable to the party furnishing it.  The most significant practical result of this holding is that in public-figure defamation cases—in which plaintiffs must demonstrate actual malice to prevail—a plaintiff must immediately come forward with clear and convincing evidence of actual malice in order to survive dismissal.

Third, the Court of Appeals resolved the standard for frivolity.  The question arose out of the Parties’ dispute over Tenn. Code Ann. § 20-17-107(b), which provides that: “If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.”  Id.  Construing the meaning of “frivolous” for TPPA purposes, the Court of Appeals ruled that a TPPA petition is frivolous when it is “baseless or ‘utterly lacking in an adequate factual predicate as to make the filing of such a [petition] highly unlikely to succeed.”  Pragnell, 2023 WL 2985261, at *15 (quoting Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 161 (Tenn. 2021)).  Affirming the trial court’s ruling that the Defendants’ TPPA Petition had not been filed frivolously, the Court of Appeals also concluded (as onlookers had assumed) that a trial court’s determination on the matter is reviewable only for abuse of discretion.

Read the Court of Appeals’ unanimous ruling in Pragnell v. Franklin, No. E2022-00524-COA-R3-CV, 2023 WL 2985261 (Tenn. Ct. App. Apr. 18, 2023), here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/E2022-524.pdf.

Questions about this article?  Contact the author at daniel [at] horwitz.law.

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Happy New Year to the Tennessee Public Participation Act!

First Amendment, Tennessee Public Participation Act

By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):

In 2019, Tennessee’s free speech law underwent a sea change.  The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of critical protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts.

Heading into its third year of existence, it is clear at this point that the Tennessee Public Participation Act is working.  If 2021 is a sign of things to come, Tennessee’s free speech law is also headed in the right direction.

Building on a series of important wins in 2020, the results that the TPPA produced in 2021 cannot be overstated.  To list just a few of them:

In June of 2021, the Tennessee Court of Appeals affirmed an anti-SLAPP judgment—the first ever anti-SLAPP judgment issued in Tennessee—in favor of a Wilson County woman who posted a negative Yelp! review.  The end result was that the thin-skinned doctor who baselessly sued her was ordered to pay a cumulative $75,000.00 cost, fee, and sanctions award for his SLAPP-suit across a pair of cases filed in Wilson County Circuit and General Sessions Court.

In March of 2021—and then again in July 2021—Circuit Courts in separate counties affirmed the constitutionality of the Tennessee Public Participation Act over a Plaintiff’s constitutional challenge.

In December of 2021, the Tennessee Court of Appeals signaled that it would treat the TPPA’s statutory discovery stay seriously, entering an immediate order staying discovery pending appeal upon a defendant’s application for extraordinary appeal on the matter.

Also in December of 2021, SmileDirectClub’s multi-billion dollar SLAPP-suit against NBC Universal was dismissed under the TPPA.

Also in December of 2021, the Circuit Court of Overton County granted several public school parents’ TPPA petitions to dismiss a SLAPP-suit filed by a public school teacher who had been lawfully accused of sexual predation and harassment against students.

Also in December of 2021, the Tennessee Court of Appeals affirmed both an anti-SLAPP judgment and a $39,000 fee and sanctions award issued against a congressional candidate who sued a trio of activists for criticizing him on Facebook.  The Court of Appeals additionally issued appellate sanctions against the candidate for filing a frivolous appeal.

There were some setbacks for the TPPA, though.  Most prominently, the U.S. District Court for the Middle District of Tennessee held for the first time that the Tennessee Public Participation Act does not apply in federal court—one of many reasons why a federal anti-SLAPP law remains essential.  The media’s nasty habit of covering SLAPP-suits only at their inception and hyping the liability that a defendant faces—then failing to follow up once a SLAPP-suit predictably fails—has not improved, either, even when media defendants themselves are the targets.

All considered, however, 2021 was a tremendous year for Tennessee’s nascent anti-SLAPP law.  Here’s to more wins—and more protected speech—in 2022.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.

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