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5th Circuit: Law firm sued for libel over website seeking clients isn’t protected by SLAPP statute

Posted Mar 18, 2014 12:55 PM CDT
By Martha Neil

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Agreeing with a trial court that statements made by a Texas law firm on a website seeking legal clients are commercial speech, a federal appeals court has ruled that the firm and two partners must defend a defamation claim made by a national dental firm that was an intended litigation target.

Mauze & Bagby argued that the defamation claim should be considered a strategic lawsuit against public participation, and thus dismissed under the Texas Citizen's Participation Act, the state's anti-SLAPP law. However, a commercial speech exemption in the statute prevents the firm from successfully asserting the anti-SLAPP law as a basis for its motion to dismiss, the New Orleans-based 5th U.S. Circuit Court of Appeals held last week, Courthouse News reports.

In its written opinion (PDF), the appellate court distinguished the Texas statute from a similar California SLAPP law that has been held to protect attorney advertising, explaining that "California's statute's commercial speech exemption requires that the speech 'consists of representations of fact about that person's or a business competitor's business operations, goods, or services' " while "Texas' commercial speech exemption contains no such limitation."

The Kool Smiles dental chain sued Mauze & Bagby in federal court in the Southern District of Texas, asserting claims for alleged false advertising, trademark infringement and cyberpiracy under the Lanham Act, as well as pendent state-court claims for defamation, business disparagement, injury to business reputation, and trade name and service mark dissolution.

An article on Findlaw's U.S. Fifth Circuit blog provides further details about the interlocutory appeal.

"Kool Smiles forgot to argue that the TCPA wasn't even applicable in federal court, although other Circuits are dealing with that issue," writes blog author Brett Snider, an attorney.

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