A slippery slope? Schlumberger v. Rutherford and implications for future abuse of the Texas Anti-SLAPP statute in trade secret litigation.


Sometimes, the cure is as bad as (or even worse than) the disease. When it comes to Anti-SLAPP statutes, that has, at times, seemed to be the case. Such statutes are intended to quickly defeat meritless suits filed to stifle free speech and thwart legitimate filings with courts and government agencies ("SLAPP" stands for "strategic lawsuits against public participation"). Indeed, they have often proven useful in facilitating the early dismissal of litigation before the commencement of costly fact discovery. But, because they amount essentially to a pre-discovery summary judgment and may result in significant awards of fees and costs to the defendant, Anti-SLAPP statutes have also been misused as a tool to cut off legitimate claims before they can be fully and fairly litigated. Some Ninth Circuit judges have recently voiced their view that the federal courts in their circuit made a serious mistake in applying the California statute in federal cases, given how incompatible many of its more harsh procedures are with the Federal Rules of Civil Procedure. See Makaeff v. Trump University, 715 F.3d 254 (9th Cir. 2013) And now, in Texas, which only enacted its Anti-SLAPP statute[1] in 2011, a trial court has recently issued a ruling with troubling implications for future Anti-SLAPP counterattacks by defendants in trade secrets cases.