Oklahoma Bar Journal

The Oklahoma Citizens Participation Act as a General Early Dismissal Procedure

By Aaron F.W. Meek and Noah E.W. Meek

In 2014, the Oklahoma Legislature passed the Oklahoma Citizens Participation Act (OCPA), which is codified in Okla. Stat. Tit. 12, §§١٤٣٠-40. The Oklahoma Court of Civil Appeals has stated “[i]t is clear that the OCPA provides a new summary process/dismissal procedure in certain cases ...”1 Case law suggests that this new law may develop into a general early dismissal procedure applicable to many different types of Oklahoma civil cases.

This article gives a brief outline of how the OCPA is likely to be interpreted in the event that Oklahoma courts agree with Texas case law pertaining to the nearly identical original version of the Texas Citizens Participation Act (TCPA) as amended June 14, 2013, with respect to the meaning of the OCPA,2 outlines some key practice pointers for scenarios where an OCPA motion has been or may be filed and discusses a crucial element of the OCPA which the Oklahoma Supreme Court may interpret differently than the Texas Supreme Court has interpreted a similar provision in the TCPA.

Oklahoma enacted a limited anti-SLAPP3 statute in 1981.4 This statute, by its language, is only applicable to particular types of libel, such as in a legislative or judicial proceeding, in the discharge of an official duty or in reporting on a legislative or judicial proceeding or official acts.5 However, Oklahoma courts have applied it liberally to protect the right to petition and related activities.6 After several states adopted broad anti-SLAPP legislation, the Oklahoma Legislature followed suit in 2014 and unanimously passed the Oklahoma Citizens Participation Act.7

There are currently only two reported decisions by the Oklahoma Supreme Court involving the OCPA: Steidley v. Singer8 and Anagnost v. Tomecek.9 Both of these cases addressed the question of whether the OCPA applies retroactively, and in both cases, the Oklahoma Supreme Court held that it does not.10

However, the OCPA is almost word-for-word, but, perhaps importantly, not comma-for-comma identical to the June 14, 2013, version of the TCPA, which was originally enacted in 2011. During its relatively short existence, Texas courts have developed a substantial body of case law – over 300 reported decisions – pertaining to the TCPA. It is appropriate to interpret this large body of case law as an indication of the significance of the TCPA and thus also the OCPA. These Texas cases provide Oklahoma practitioners with reference materials when interpreting the OCPA, some of which is considered legally persuasive in Oklahoma courts.11 Furthermore, the Oklahoma Court of Civil Appeals has recently issued opinions that adopt, or favorably cite, significant portions of Texas’ TCPA jurisprudence.12

The TCPA had been interpreted so expansively by Texas courts and had become such a powerful force that, shortly before this writing, the Texas governor signed House Bill 2730,13 which took effect Sept. 1, 2019, and which will substantially alter and pare back the TCPA. The TCPA discussion in this paper thus pertains only to the two original versions of the statute in force from June 17, 2011, to Aug. 31, 2019. There has been no effort by the Oklahoma Legislature to reform the OCPA.

Under the OCPA, a party in Oklahoma state courts can bring a motion to dismiss no later than 60 days after service of a legal action by showing by a preponderance of the evidence that the “legal action is based on, relates to or is in response to a party’s exercise of the right of free speech, right to petition or right of association.”14 It also appears that OCPA motions may be appropriate in cases involving Oklahoma state law claims in federal court.15 The court must then set a hearing on the motion no later than 60, 90 or 120 days after service of the motion, depending upon the circumstances,16 and rule no later than 30 days after the date of the hearing.17

The OCPA naturally applies to defamation claims and claims traditionally thought of as pertaining to First Amendment rights. However, notwithstanding the OCPA’s inconspicuous location in the slander and libel chapter of Title 12, it is increasingly clear that OCPA anti-SLAPP18 motions are also appropriate in a broad range of commercial and tort lawsuits.19

As a preliminary matter, certain types of actions are exempt from OCPA dismissal, such as government enforcement actions, bodily injury actions, insurance-related actions and actions arising out of certain types of commercial speech.20 At first glance, the commercial speech exemption appears to shield many commercial claims from the possibility of OCPA attack. The Oklahoma Court of Civil Appeals has offered Oklahoma’s initial interpretation of the commercial speech exemption, relying heavily on the case law developed by Texas Courts of Appeals up to that point; however, the Texas Supreme Court subsequently addressed, and narrowly construed, the commercial speech exemption.21

The statutory definition of the exercise each of the three types of rights protected by the OCPA first requires a communication.22 The term “communication” is broadly defined to be the “making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual or electronic.”23 Texas courts have broadly construed this definition such that nearly any communication satisfies the statutory requirement.24 The TCPA has been interpreted to apply to claims based on purely private, illicit communications.25 “Submitting ... a ... document” is a “communication” under the TCPA’s broad definition, and this would include filing an instrument in the real property records.26 A respondent can deny the communication occurred and simultaneously use the alleged communication as the basis for a TCPA motion.27 Even when a communication is not apparent from the face of a claim, the party bringing a TCPA motion can introduce evidence to supply key facts omitted from the nonmovant’s pleading.28

The communication must then fall into one of the three categories of expression protected by the OCPA: the right of free speech, the right of association or the right to petition. These categories of expression are also broadly defined. Indeed, it is now well-established by Texas case law that the TCPA protects communications beyond those which are protected by the First Amendment or the Texas Constitution. As the Texas Court of Appeals in Austin has explained:

the TCPA’s definitions of “exercise of the right of free speech,” petition, and association extend considerably beyond – and largely without regard to – the parameters of expression that would actually be protected by the First Amendment or the Texas Constitution.29

The exercise of the right of free speech is defined as “a communication made in connection with a matter of public concern.”30 Key to understanding the breadth of the OCPA is the broad definition of “matter of public concern.” A “matter of public concern” is defined to be “an issue related to: a. health or safety, b. environmental, economic or community well-being, c. the government, d. a public official or public figure, or e. a good, product or service in the marketplace.”31 A great deal of business and personal communications will be “in connection with”32 one of the listed matters of public concern.33 A commercial or employment dispute may implicate the OCPA’s “right of free speech” not only because the products purchased and sold by companies are often a “good, product or service in the marketplace,” but also because business communications often “relate to” “health or safety,” “environmental, economic or community well-being,” or “government.”34 Texas courts frequently stop their analysis of whether the TCPA applies at the “right of free speech,” because the “right of free speech” is so broadly defined that a claim will rarely implicate the “right to petition” or the “right of association” without also implicating the “right of free speech.”

The exercise of the right of association is defined as “a communication between individuals who join together to collectively express, promote, pursue or defend common interests.”35 Texas courts have interpreted the right of association broadly to extend to private communications between businesspersons about matters of mutual commercial interest.36

The exercise of the right to petition is defined as “a communication in or pertaining to ...” a judicial, official, executive or legislative proceeding.37 The filing of notices of lis pendens as well as certain liens have been held to be an exercise of the right to petition.38 This line of cases could be expanded to the point that the filing many types of instruments in the real property records or other public records could be subject to OCPA protection under the “right of free speech,” the “right to petition” or both. Applications and protests to government bodies can be construed as an exercise of the right to petition.39

Because of the liberal interpretation of Oklahoma’s 1981 anti-SLAPP statute, Texas’ liberal interpretation of the nearly identical TCPA, and the plain language of the OCPA that the act “shall be construed liberally to effectuate its purpose and intent fully.”40 Oklahoma courts could quite liberally construe the OCPA such that an OCPA motion to dismiss would be successful in cases well beyond what would typically be thought of as relating to free expression.

When a movant’s burden is met under the OCPA, the court is required to dismiss the action unless the nonmovant can show “by clear and specific evidence a prima facie case for each essential element of the claim in question.”41 The OCPA does not state whether dismissal should be with or without prejudice. Although the issue of prejudice has not been addressed as a disputed issue by Texas courts, the Oklahoma Court of Civil Appeals has held that dismissal is with prejudice.42

The nonmovant can use their pleadings and affidavits as evidence to meet their burden,43 but the evidence must be “clear and specific” on each element of each claim against each defendant, including damages and alternative claims.44 “Clear and specific” does not mean “clear and convincing,” but it does require evidence that “is somewhat more specific than that required to resist a traditional motion to dismiss.”45 The task of responding to an OCPA motion is rendered even more difficult because, once a party has filed an OCPA motion to dismiss, all discovery is suspended until the court has ruled on the motion, unless the court finds good cause to allow specified and limited discovery related to the motion.46 If the nonmovant had planned to uncover evidence to support their case through discovery, the nonmovant will struggle to meet their burden.

If the nonmovant fails to meet their burden, the court is required to dismiss the legal action no later than 30 days following the date of the hearing on the motion.47 Even if the nonmovant meets their burden to show a prima facie case, the movant may still obtain dismissal by establishing by a preponderance of evidence each essential element of a valid defense to the nonmovant’s claim.48 However, an Oklahoma court has limited such defenses to those that turn solely on a question of law.49

In Texas, once a legal action is dismissed pursuant to the TCPA, the court would then be required to assess court costs, attorney fees, including attorney fees to recover attorney fees, and some amount of sanctions, and the court may also assess other expenses and substantial sanctions against the nonmovant.50 As discussed below, this may not be the case in Oklahoma. If a court finds an OCPA motion was frivolous or filed solely with the intent to delay, the court may assess court costs and attorney fees against the movant.51 Thus, at least in Texas, the nonmovant typically bears the majority of the risk of an adverse court cost and attorney fees award.

Attorneys representing respondents should, as a standard element of their preliminary and ongoing case review process, analyze each new claim to determine if an OCPA motion to dismiss is appropriate. Attorneys representing claimants should now be increasingly wary of including weak or unmeritorious claims in their petition or as counterclaims. Claims that have even a small chance of being subjected to OCPA attack should be pled clearly and with sufficient detail that the complaint alone contains sufficient facts in support of each element of each claim to satisfy the requirement that the claimant establish by “clear and specific evidence a prima facie case for each essential element of the claim.”52 It is thus fair to say the OCPA has significantly altered the way many claims should be pled. While notice pleading remains the general requirement in Oklahoma,53 bare notice pleading will not provide sufficient evidence to defeat many OCPA motions to dismiss.54

Both parties in a case in which an OCPA motion may be filed should seek discovery as early as possible to maximize the likelihood of obtaining discovery before an OCPA motion is filed and all discovery is stayed. As a practical matter, trial courts may be more willing to grant leave for limited discovery under the OCPA if the discovery requests are served before the OCPA motion is filed.

One way the OCPA may become a trap for the unwary is in cases when there is an acrimonious business dispute and a plaintiff sues with a fairly strong claim for breach of contract but also brings harder-to-prove, but perhaps more emotionally satisfying, claims for fraud, conspiracy, breach of fiduciary duty or defamation. Texas courts have held that claimants cannot avoid the consequences of a TCPA motion by nonsuiting (voluntarily dismissing) their weaker claims after a TCPA motion to dismiss has been filed.55 In the example above, the claimant may face partial dismissal and an adverse award of costs and attorney’s fees at the outset of their case and will likely be unable to conduct discovery on even the strong breach of contract claim until the OCPA motion is resolved. Being placed on the defensive so early in litigation would no doubt be unnerving and have powerful psychological effects on the client.

The OCPA is of course of great importance to litigation attorneys, but it should not be disregarded by nonlitigators. The law will also play an important role in transactional law scenarios. For example, transactional attorneys should consider the propriety of negotiating OCPA restrictions or waivers into contracts.56

The TCPA provides that “(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions ... sufficient to deter the party who brought the legal action from bringing similar actions ...”57 In the case of Sullivan v. Abraham,58 the Texas Supreme Court was charged with determining whether principles of justice and equity may be applied to modify the award of court costs, attorney fees and other expenses to a prevailing TCPA movant, or whether the award of court costs and attorney fees is mandatory and justice and equity applies only to other expenses. The court delved into textual and grammatical analysis and concluded that considerations of justice and equity can only be applied to other expenses, and therefore the award of court costs and reasonable attorney fees is mandatory.59

The Sullivan court identified three primary bases for its holding: the use of a serial comma, the use of the term “other expenses” and the failure to include a comma either after “other expenses” or “legal action.”60 The provision in the OCPA pertaining to the award of court costs, attorney’s fees and other expenses is nearly identical to the corresponding provision in the TCPA.61 The OCPA also uses the term “other expenses” and also does not include a comma either after “other expenses” or “legal action,” but, perhaps crucially, it does not include a serial comma (also known as an Oxford comma). The seemingly innocuous decision by Oklahoma legislators to eschew serial commas, whether intentional or merely a matter of stylistic preference, could therefore have enormous consequences. In due course, Oklahoma courts will be required to determine if the lack of a serial comma in the OCPA is sufficient for Oklahoma courts to diverge from the Texas Supreme Court and find that an award of court costs and attorney fees is discretionary under the OCPA.

It is noted that in Anagnost and Steidley, the Oklahoma Supreme Court stated that, under the OCPA, the trial court “may award costs, sanctions and attorney fees to the moving party.”62 These cases did not implicate the question of whether the award of court costs and attorney’s fees is mandatory, and this is therefore in the nature of dicta at most, but the use of “may” suggests that the Oklahoma Supreme Court might view an award of court costs and attorney’s fees as discretionary. Also, in Barnett v. Hall, Estill, the United States District Court for the Northern District of Oklahoma determined that justice and equity did not require an award of costs, attorney fees and other expenses under the circumstances of the case, but noted the defendants had “cited no case in which a court interpreting the OCPA [had] made such an award.”63 Finally, at the time the OCPA was enacted in 2014, the Texas Supreme Court had not yet addressed any part of the TCPA, and the prevailing view among Texas Courts of Appeals was that an award of court costs and attorney’s fees under the TCPA was discretionary.64

In time, the OCPA may prove to be as revolutionary in Oklahoma as the original TCPA had become in Texas. Oklahoma practitioners of all types are encouraged to acquaint themselves with the OCPA and the significant and relevant body of TCPA case law south of the Red River or risk finding themselves flat-footed when confronted with a seemingly irrelevant motion that could quickly put a costly end to their client’s claims.

Aaron F. W. Meek is a member of the Oklahoma City law firm Rison, Meek & O’Shields PLLC, where his practice focuses primarily on oil and gas title examination.
Mr. Meek received his B.B.A. in energy management and his J.D. 
from the OU College of Law. He can be reached at ameek@rmo-law.com.

Noah E. W. Meek is an attorney at the Houston law firm Cardwell & Chang, PLLC, where his practice focuses primarily on commercial, real estate and healthcare litigation and commercial transactions.
Mr. Meek received his B.A. in 
liberal arts from St. John’s College and his J.D. from the University of Houston. He can be reached at meek@cardwellchang.com.

1. Krimbill v. Talarico, 417 P.3d 1240, 1244 (Okla. Civ. App. 2017).
2. Compare Okla. Stat. Ann. Tit. 12, §§1430-40 (West Supp. 2015) with Tex. Civ. Prac. & Rem. Code Ann. §§27.001-27.011 (West, Westlaw through end of the 2017 Regular and Frist Called Sessions of the 85th Legislature) (as amended by H.B. 2935, 83rd Leg., Reg. Sess. (Tex. 2013)).
3. “SLAPP” stands for “strategic lawsuit against public participation.”
4. Tit. 12, §1443(1).
5. Id.
6. See generally Laura Long, Note, “Slapping Around the First Amendment: An Analysis of Oklahoma’s Anti-SLAPP Statute and It’s Implications on the Right to Petition,” 60 Okla. L. Rev. 419 (2007).
7. See Krimbill v. Talarico, 417 P.3d 1240, 1244-45 (Okla. Civ. App. 2017).
8. 389 P.3d 1117 (Okla. 2017).
9. 390 P.3d 707 (Okla. 2017).
10. See Mbilike M. Mwafulirwa, “Suing on Shifting Sands: The Oklahoma Constitution, Retroactive Legislation and the Scramble for Clarity,” 88 Okla. B.J. 935 (2017).
11. Krimbill, 417 P.3d at 1244-45; see also Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 18-CV-00064-TCK-FHM, 2018 WL 4038117, at *6 (N.D. Okla. Aug. 23, 2018) (“Texas cases interpreting the TCPA will be highly persuasive in this Court’s analysis of the OCPA”).
12. See Krimbill, 417 P.3d 1240; Southwest Orthopaedic Specialists, P.L.L.C. v. Allison, 439 P.3d 430 (Okla. Civ. App. 2018).
13. H.B. 2730, 86th Leg., Reg. Sess. (Tex. 2019).
14. Okla. Stat. Ann. Tit. 12, §§1432, 1434 (West Supp. 2015); Krimbill, 417 P.3d at 1249.
15. Barnett, at *2-6; contra Bruning v. City of Guthrie, CIV-15-0003-HE, 2015 WL 4925995, at *10 (W.D. Okla. Aug. 18, 2015); see generally Mbilike M. Mwafulirwa, “Second Time’s a Charm: Oklahoma Citizens Participation Act’s Applicability in Federal Court,” 89 Okla. B.J. 24 (September 2018).
16. Tit. 12, §1433; see also Anderson v. Wilken, 377 P.3d 149 (Okla. Civ. App. 2015).
17. Tit. 12, §1434(A).
18. Dismissal motions filed pursuant to the TCPA, OCPA and other states’ anti-SLAPP statutes are frequently generically referred to as “SLAPP motions,” or, more appropriately, “anti-SLAPP motions.”
19. See Krimbill, 417 P.3d at 1247 n.8 (noting that “[i]t would be a mistake to consider the Act as applying only to classic libel suits”); see, e.g.Allison, 439 P.3d 430.
20. Tit. 12, §1439.
21. See Krimbill, 417 P.3d at 1250-51; Castleman v. Internet Money Ltd., 546 S.W. 684 (Tex. 2018).
22. Tit. 12, §1431.
23. Id.
24. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017).
25. E.g.Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 198 (Tex. App. – Austin 2017) (holding that misappropriation of trade secrets involves communication under TCPA, as does illegal conduct involving communication not protected by the First Amendment).
26. See Quintanilla v. West, 534 S.W.3d 34, 43 (Tex. App. – San Antonio 2017).
27. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
28. See Harwood v. Gilroy, 04-16-00652-CV, 2017 WL 2791321, at *3 (Tex. App. – San Antonio 2017).
29. Cavin v. Abbott, 545 S.W.3d 47, 63 (Tex. App. – Austin 2017, no pet.).
30. Okla. Stat. Ann. Tit. 12, §1413(3) (West Supp. 2015).
31. Tit. 12, §1431(7).
32. See Southwest Orthopaedic Specialists, P.L.L.C. v. Allison, 439 P.3d 430, 434-35 (Okla. Civ. App. 2018).
33. E.g.Lona Hills Ranch, LLC v. Creative Oil & Gas Operating, LLC, 549 S.W.3d 839, 845-47 (Tex. App. – Austin 2018) (communications related to the continuing validity of an oil and gas lease are free speech); Quintanilla v. West, 534 S.W.3d 34, 43-46 (Tex. App. – San Antonio 2017) (filing a lien in the real property records is free speech); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017) (employer’s internal communications about the employee’s firing related to the employee’s failure to meet safety standards is free speech).
34. E.g.Grant v. Pivot Tech. Sols., Ltd., 03-17-00289-CV, 2018 WL 3677634, at *6-7 (Tex. App. – Austin 2018) (finding claims related to government certification as a Historically Underutilized Business were related to government and economic well-being).
35. Tit. 12, §1431(2).
36. E.g.Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 205 (Tex. App. – Austin 2017) (finding claims for violation of the Texas Uniform Trade Secrets Act, unfair competition, breach of fiduciary duty and civil conspiracy all implicated the right of association); see also Grant, at *8.
37. Tit. 12, §1431(4).
38. See Quintanilla v. West, 534 S.W.3d 34, 46-47 (Tex. App. – San Antonio 2017) (also holding that the filing of a lien was an exercise of the right of free speech); James v. Calkins, 446 S.W.3d 135, 147-48 (Tex. App. – Houston [1st Dist.] 2014); Martin v. Bravenec, 04-14-00483-CV, 2015 WL 2255139, at *6 (Tex. App. – San Antonio 2015).
39. See Spencer v. Overpeck, 04-16-00565-CV, 2017 WL 993093 (Tex. App. – San Antonio 2017) (reports to law enforcement and filing petition for injunctive relief implicate the right to petition); Long Canyon v. Cashion, 517 S.W.3d 212, 219-22 (Tex. App. – Austin 2017) (presuit demand letter implicates the right to petition); Lona Hills Ranch, LLC v. Creative Oil & Gas Operating, LLC, 549 S.W.3d 839, 848 (Tex. App. – Austin 2018) (complaint to the Texas Railroad Commission was an exercise of the right to petition).
40. Tit. 12, §1440(B); see also Krimbill v. Talarico, 417 P.3d 1240, 1245 (Okla. Civ. App. 2017).
41. Tit. 12, §1434; see Krimbill, 417 P.3d at 1246; Southwest Orthopaedic Specialists, P.L.L.C. v. Allison, 439 P.3d 430, 436 (Okla. Civ. App. 2018).
42. Allison, 439 P.3d at 440-41; see also Abatecola v. 2 Savages Concrete Pumping, LLC, 14-17-00678-CV, 2018 WL 3118601, at *14 (Tex. App. – Houston [14th Dist.] 2018); Krimbill, 417 P.3d at 1246.
43. Tit. 12, §1435; Krimbill, 417 P.3d at 1246-47.
44. See Allison, 439 P.3d at 436-38; In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015); Grant v. Pivot Tech. Sols., Ltd., 03-17-00289-CV, 2018 WL 3677634, at *10-13 (Tex. App. – Austin 2018).
45. Allison, 439 P.3d at 436; see also In re Lipsky, 460 S.W.3d at 590; Krimbill, 417 P.3d at 1246.
46. Tit. 12, §§1432, 1435(B).
47. Tit. 12, §1434.
48. Tit. 12, §1434(D).
49. Krimbill, 417 P.3d at 1249.
50. Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016), rev’g Sullivan v. Abraham, 472 S.W.3d 677 (Tex. App. – Amarillo 2014); Cruz v. Van Sickle, 452 S.W.3d 503, 526-27 (Tex. App. – Dallas 2014, pet. struck) (“Attorney’s Fees to Recover Attorney’s Fees”), abrogated on other grounds by Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016); Rich v. Range Res. Corp., 535 S.W.3d 610, 613-14 (Tex. App. – Fort Worth 2017, pet. denied) (failure to award at least nominal sanctions is error, but not reversible error); see also Abetecola v. 2 Savages Plumbing, LLC, 14-17-00678-CV, 2018 WL 3118601, at *13-14 (Tex. App. – Houston [14th Dist.] 2018, no pet.); but see Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 18-CV-00064-TCK-FHM, 2018 WL 4038117, at *11 (N.D. Okla. Aug. 23, 2018) (declining to award even nominal sanctions under OCPA).
51. Tit. 12, §1438(B).
52. Tit. 12, §1434(C); Krimbill, 417 P.3d at 1246–47.
53. Gens v. Casady Sch., 177 P.3d 565, 569 (Okla. 2008).
54. Krimbill, 417 P.3d at 1246–47; see also In re Lipsky, 460 S.W.3d 579, 590-91 (Tex. 2015).
55. Abatecola, 2018 WL 3118601, at *13-14 (stating that “TCPA motions to dismiss survive nonsuit because, unlike a nonsuit, the TCPA motion to dismiss might also allow the movant to obtain a dismissal with prejudice, attorney’s fees, and sanctions”).
56. See, e.g.Lona Hills Ranch, LLC v. Creative Oil & Gas Operating, LLC, 549 S.W.3d 839, 848 (Tex. App. – Austin 2018) (finding that a complaint to the Texas Railroad Commission was an exercise of the right to petition, but that the TCPA movant had “contractually restricted its normally unrestricted constitutional right to petition”).
57. Tex. Civ. Prac. & Rem. Code Ann. §27.009(a) (Westlaw, Westlaw through end of the 2017 Regular and Frist Called Sessions of the 85th Legislature) (subsequently amended by H.B. 2730, 86th Leg., Reg. Sess. (Tex. 2019)).
58. 488 S.W.3d 294 (Tex. 2016).
59. Id.
60. Id. at 299.
61. Compare Civ. Prac. & Rem. §27.009(a) (subsequently amended by H.B. 2730, 86th Leg., Reg. Sess. (Tex. 2019)) with Tit. 12, §1438(A)(1).
62. Steidley v. Singer, 389 P.3d 1117, 1119 (Okla. 2017); Anagnost v. Tomecek, 390 P.3d 707, 710 (Okla. 2017).
63. Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 18-CV-00064-TCK-FHM, 2018 WL 4038117, at *11 (N.D. Okla. Aug. 23, 2018).
64. See Sullivan v. Abraham, 472 S.W.3d 677, 681-82 (Tex. App. – Amarillo 2014) (holding “the sums awarded can be no more than what is reasonable but may be less than that in view of pertinent considerations of justice and equity”), rev’d, 488 S.W.3d 294 (Tex. 2016).

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 32 (September 2019)