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03/21/14

Texas Law Firm Sued for Defamatory Content on Its Website



A Texas law firm has been sued for defamation due to controversial content on its website which the 5th Circuit has now ruled as unprotected speech. The law firm Mauze & Bagby PLLC and principal partners George Mauze and James Bagby were sued by Kool Smiles chain of dental clinics in 2012 at the Houston federal court. The law firm's attempts to dismiss the suit under anti-SLAPP statutes having failed, now, it will have to face the defamation lawsuit.

Significantly, the law firm argued that the content at issue should have been protected by anti-SLAPP law as the California Supreme Court had interpreted in a similar case. But the 5th Circuit observed, the law firm's argument, "neglects the fact that the California Supreme Court's holding rested on a clause in the California statute that is not present in Texas's anti-SLAPP statute."

Differentiating the matter further from a similar situation in California, the 5th Circuit observed, "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 ... Texas's commercial speech exemption contains no such limitation."

The operators of Kool Smiles chain alleged that the law firm mad "false and unsubstantiated representations" on a website set up to solicit Kool Smiles' patients. The complaint alleges that patients of Kool Smiles were asked if the chain performed unnecessary dental work on the baby teeth of children and also "whether their children were (1) 'strapped down to a papoose board or (2) 'upset, crying, terrified, or traumatized."

The plaintiffs said that the "Defendants' questions deliberately misled the public by unfairly casting Kool Smiles and its provision of dental services in an unfavorable light."

The law firm's attempt to dismiss the lawsuit at a trial court was denied, and the denial was later upheld on appeal to a three-judge panel of the federal appeals court. The trial court had decided that the law firm's speech fell within a commercial speech exemption under Texas' law against SLAPP, the Texas Citizen's Participation Act.

The 5th Circuit Court of Appeals panel held, "we conclude that the Supreme Court of Texas would most likely hold that M&B's ads and other client solicitation are exempted from the TCPA's protection because M&B's speech arose from the sale of services where the intended audience was an actual or potential customer."


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