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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