ESA Citizen Suit Begets an Unsuccessful Texas State Court Defamation Lawsuit

On October 18, in Landry’s, Inc. and Houston Aquarium, Inc. v. Animal Legal Defense Fund, et al., the Texas Fourteenth Court of Appeals, sitting in Houston, affirmed the trial court’s dismissal of a lawsuit alleging that the defendants, including the Animal Defense Fund, defamed the plaintiffs’ business with the publication of their notice of intent to sue the plaintiffs under the Endangered Species Act (ESA).

One of the plaintiffs was given a private tour of the business, and that visit later became the basis for the ESA complaint. That complaint, and the press releases accompanying the filing of the complaint, alleged that the plaintiffs’ business, an aquarium and large restaurant located in downtown Houston which featured four white tigers in a special exhibit, failed to provide adequate care and housing for these tigers.

Under the ESA, a 60-day notice to sue must be submitted before the complaint is filed in federal court. On the 59th day, this defamation lawsuit was filed in state court.

The Texas Fourteenth Court of Appeals agreed with the trial court that the “judicial proceedings privilege” applies to the factual statements at issue, as well as to the many press releases that were generated by the defendants, and “thus the statements do not support claims of defamation, business disparagement, tortious interference or… conspiracy to commit any of these torts.”

Moreover, under the Texas Citizen Participation Act (TCPA), which is intended to protect whistleblowers and, generally, the right to free speech, if the lawsuit is dismissed under the TCPA, the statute requires the court to award the successful movant its reasonable attorneys’ fees and even monetary sanctions to defer future conduct actionable under the TCPA. Here, substantial attorneys’ fees were awarded by the trial court, as well as several hundred thousand dollars in sanctions. The Texas Fourteenth Court of Appeals reduced the sanctions considerably, but one of the justices argued that only nominal sanctions were appropriate under the law.

The ESA federal lawsuit is pending.