More on the oligarch suing Beto

From the Observer; I’m picking it up after the initial statements by Beto that got Kelcy Warren’s undies in such a wad:

Free-speech advocates and many legal scholars have long decried these sort frivolous lawsuits—known as SLAPPs, or Strategic Lawsuits Against Public Participation—as a blatant abuse of the country’s legal system by powerful and wealthy people and corporations in an attempt to silence outspoken activists, critical reporters, and rivals alike.

“Kelcy Warren is far from the first billionaire to file a lawsuit against someone who says something they don’t like. … And even though they’re highly unlikely to succeed on the merits, they file them anyway,” Evan Mascagni, policy director for the anti-SLAPP advocacy group Public Participation Project, told the Observer.

“SLAPP-filers don’t go to court to seek justice. Rather, they file these meritless lawsuits to silence, harass, and intimate their critics. Defending against a meritless lawsuit can cost tens or even hundreds of thousands of dollars and clog up the court system for years while at the same time having a chilling effect on the writer or speaker.”

With one of Abbott’s top donors going directly after his political ally’s opponent, Warren’s lawsuit marks an unprecedented incursion into Texas politics—one that is likely to only further elevate the mega-donor’s role in the most high-profile election this year. It seem to be an unwelcome move for Abbott, whose campaign promptly issued a statement saying that it had no involvement with the suit. O’Rourke, meanwhile, is spoiling for the fight—and has doubled-down in his rhetoric in the wake of the lawsuit. Earlier this month, O’Rourke compared Abbott to Russian President Vladimir Putin, calling him an “authoritarian” and a “thug,” and said, “he’s got his own oligarch here in the state of Texas”—an apparent reference to Warren.

The law firm—Kasowitz Benson Torres—that Warren hired to take on O’Rourke is notorious for aggressively litigating these types of suits on behalf of its powerful clients, including his company, Energy Transfer Partners. The firm’s founder, Marc Kasowitz, was also the longtime attorney for the infamously litigious former President Donald Trump.


While it’s not clear if O’Rourke will ultimately file a motion to get the suit tossed, experts say the state’s anti-SLAPP law was created for cases like these.

“My general impression of the lawsuit is that it’s very much subject to dismissal under the TCPA,” Lane Haygood, an Odessa-based lawyer who has worked on free-speech cases in the state, told the Observer.

“The statements that could survive [an anti-SLAPP dismissal] are the ones that get closest to accusing Mr. Warren of committing a specific crime,” Haygood added. “There are a couple of times that O’Rourke uses words like extortion or bribery, which are defined crimes under the Texas Penal Code. But they are also rhetorical shorthand and hyperbolic, and so in context, Texas courts are generally likely to hold that such language is not specific enough to be actionable defamation. It is the difference between saying ‘John Smith assaulted me on September 4, 2021,’ and ‘John Smith is a bully who beat me up.’ ”

O’Rourke has dismissed Warren’s claims as blatantly frivolous, saying that everything he’s said is based on publicly available facts and media reports. So far, he’s indicated that he wants to let the case play out—paying for any legal costs with campaign funds. This week, his attorneys filed motions to change the venue of the lawsuit to a court in his home of El Paso County and called for a trial by jury.

Under the state’s anti-SLAPP law, O’Rourke has 60 days from the date he was served—February 28—to file a motion to dismiss. It’s not uncommon for attorneys to wait until the deadline to do so in case the defendant files an amended petition, Haygood said.

Or O’Rourke may see the public spectacle of this lawsuit as a political gift that’s well worth going to court over—especially since his ample campaign funds should easily cover the legal costs of a drawn-out legal battle.

See here and here for the background. Beto has basically until the end of April to file a motion for dismissal, which is still the legally sound strategy. Politically, though, it likely makes more sense to say “bring it”, and start filing tons of motions for discovery. I have no idea what Beto will do, but I’d love to sit in on his next call with the lawyers.

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3 Responses to More on the oligarch suing Beto

  1. Flypusher says:

    SLAPP suits work best when they’re filed by wealthy bullies to punch down on people of limited means. This rivals the suit Bob Murray filed against John Oliver in the category of “you really didn’t think this through, did you?”. It both cases, the lawsuit-happy fools targeted someone who 1) has the financial resources to fight back, and 2) can use the publicity generated to their advantage. (Oliver’s little musical number in response Is hysterical.)

    If Beto takes it to court and wins, what can he pry out of Abbott’s oligarch?

  2. Kibitzer Curiae says:


    Re: “If Beto takes it to court and wins, what can he pry out of Abbott’s oligarch?”

    Since Beto is the defendant, he *is* in court already. And the answer to the question of what he can get out of anti-SLAPP motion (if he files one and prevails) is pretty clear: attorney’s fees and sanctions.

    Civil Practice and Remedies Code [CPRC] Sec. 27.009. DAMAGES AND COSTS.

    (a) Except as provided by Subsection (c), if the court orders dismissal of a legal action under this chapter, the court:

    (1) shall award to the moving party court costs and reasonable attorney’s fees incurred in defending against the legal action; and

    (2) may award to the moving party sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

    See the whole thing here:

    If the Chapter 27 dismissal motion is denied, it can be immediately appealed, but that stays (stops) further proceedings in the trial court. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(12) (interlocutory appeal of denial of TCPA motion), § 51.014(b) (interlocutory appeal of denial of TCPA motion stays all proceedings in trial court pending resolution of appeal). This is what happened in the MDL litigation following entry of Judge Peeples’ order, which – inter alia – included a denial of the defendants’ motion to dismiss under the Texas Citizens Participation Act (TCPA) along with the rulings on the issues of constitutionality of SB8.

    As for discovery, you just do it by serving requests (and witness subpoenas later). No motion needed. The motions come into play when there are discovery disputes, i.e. when a party refuses to produce requested information or documents, or witnesses for deposition; lodges formal objections to requests; or wants an order of protection from the court regarding confidential and privileged material and such.

    So, the intriguing thing here is how much discovery Beto’s attorney(s) will be able to get from the plaintiff, and whether that information will also be useful to the campaign, not just in efforts to defeat the lawsuit. Since Beto is the defendant, he cannot be accused of having brought a lawsuit for an improper purpose, namely to obtain documents and testimony that could be politically useful in the campaign against Abbott.

    It should also be noted that if Beto’s counsel doesn’t file TCPA motion, that doesn’t preclude him from trying to defeat the lawsuit – or parts of it – through some other procedural mechanism, such as a motion for summary judgment.

  3. Manny says:

    Kib, surely u jest. DISCOVERY.

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