by Paul Alan Levy
Late yesterday, we filed an application for an award of attorney fees and sanctions, seeking a six-figure award against Prestigious Pets, the Dallas pet-sitting firm whose suit for breach of a nondisparagement clause was dismissed last month under the Texas anti-SLAPP statute (the Texas Citizens Participation Act). I hate to have to spend my time litigating over fees, and generally prefer to settle those issues, but there is actually a substantive issue worth winning here.
Awards of Attorney Fees to Pro Bono Attorneys Under the Texas Anti-SLAPP Statute
In the course of opposing our anti-SLAPP motion, Bill Richmond, the attorney for Prestigious Pets, indicated that the plaintiffs intend to argue, based on a two-year-old ruling by the Texas Court of Appeals for Dallas in Cruz v. Van Sickel, that lawyers who defend speech in the hope of being awarded fees under the anti-SLAPP law but do not charge their clients up front by the hour cannot be awarded fees under the TCPA. If this remained good law, it would be devastating for the effectiveness of the Texas law — given the economics of litigation, it is the exception rather than the rule for individual consumers who are subjected to SLAPP suits to be able to afford to pay their lawyers up front for representation. Happily, we do not have to rely exclusively on this policy argument, because last year in Sullivan v. Abraham, addressing a different issue under attorney fee provision of the TCPA, the Texas Supreme Court rejected the Dallas Court of Appeals’ analysis of the relevant statutory language. Our fee application argues both points. We also argue for sanctions, which section 27.009 of the TCPA requires courts to award in an amount “sufficient to deter the party who brought the legal action from bringing similar actions described in th[e TCPA].”
Impact of the Litigation on the Plaintiffs
Despite the importance of the issue, this fee application has the makings of a tragedy. The plaintiff company is a small business, and I have to assume that neither it nor its owner (who was also a plaintiff in her personal capacity) could sustain a just fee award and not declare bankruptcy. And the company has already told us, in affidavits filed in opposition to the anti-SLAPP motion, that public attention to the lawsuit that it has brought against the Duchouquettes has had a devastating impact on the willingness of new customers to use its services.
We worried about this issue going into the case, and I personally appealed to the company's lawyer to help his client cut its losses and just pay the small amount of attorney fees that the Duchouquettes were already out of pocket for the lawyers they had initially retained when they had been sued pro se in small claims court. The lawyer told me flat-out that they were not interested in any compromise that involved paying fees for having filed a SLAPP suit, and even having lost the case and the trial court level, he similarly failed to respond when I let him know about our pending fee application and urged him to make a counter-offer, making clear that we would certainly take a demonstrated ability to pay into account in trying to find a fair compromise.
Every step of the way, this company and its lawyer have made self-destructive choices, and we were unable to get them into settlement discussions about the attorney fees issue. The handling of this case might make an equally good case study for business students as for law students.