Landry’s Inc. operates the Downtown Aquarium in Houston which houses four white tigers. Carney Anne Nasser, an attorney with the Animal Legal Defense Fund, together with an attorney from Irvine & Conner, sent Landry’s a 60-day Notice Letter pursuant to the Endangered Species Act. The Notice Letter informed Landry’s that ALDF and Conley intended to sue Landry’s using the ESA’s citizen-suit provision based on allegations that Landry’s tiger facilities violated the ESA as well as portions of the ‘Tiger Care Manual’ produced by the Association of Zoos and Aquariums. Copies of the Notice Letter were sent to Landry’s and to the Secretary of the Interior, as required by the ESA. ALDF also sent the letter to the Mayor of Houston. At the same time, ALDF also posted a Press Release on its website describing its service of the Notice Letter and criticizing the tigers’ conditions. A link directed readers to the Notice Letter itself. ALDF also sent the Notice Letter and a copy of the Press Release to the Houston Chronicle and ABC-Denver7, where Landry’s owns another tiger exhibit. ABC-Denver7 posted an article about the threatened suit: “Downtown Aquarium owners, Landry’s, facing possible lawsuit over tigers at Houston location.” The Houston Chronicle likewise ran a story about the allegations: “Animal rights group threatens to sue Landry’s over tigers at Downtown Aquarium.” A website called The Dodo also posted an article: “White Tigers Stuck In Aquarium Haven’t Felt The Sun In 12 Years.” Over the next ten days, ALDF made five Facebook posts regarding the tigers, and both Nasser and ALDF’s executive director, Stephen Wells, tweeted about them.

Landry’s, in turn, sued Conley, Nasser, and the ALDF for defamation, business disparagement, tortious interference, abuse of process, trespass, and civil conspiracy.  The court of appeal held that the attorney’s pre-suit efforts to publicize the allegedly defamatory statements are shielded from liability by either the judicial-proceedings privilege or attorney immunity. The Texas Supreme Court, however, disagreed:

“An attorney who repeats his client’s allegations to the media or the public for publicity purposes is not acting in the unique, lawyerly capacity to which Texas law affords the strong protection of immunity. Although attorneys often make publicity statements for their clients, wrapping these statements in an absolute privilege would unreasonably shield attorneys from liability for defamatory statements that would be actionable if uttered by anyone other than an attorney. Attorneys who make such statements outside a judicial proceeding have many potential defenses to defamation liability, but the judicial-proceedings privilege and attorney immunity are not among them.”

Explaining further:

“The judicial-proceedings privilege exists to facilitate the proper administration of the justice system. It does so by relieving the participants in the judicial process from fear of retaliatory lawsuits for statements they make in connection with the proceeding itself. Statements to the media, by definition, are not made within a judicial proceeding. They are not directed to the court or the opposing party, and they play no formal role in the adjudicatory process…. Press statements often serve an important function for the party issuing them and for the public, but they are in no way part of a judicial proceeding or preparatory to one in any formal sense. Although accurate public knowledge of what is happening in the court system is surely of great value, that value is protected by many defenses available in defamation law and ultimately by the First Amendment.  The judicial-proceedings privilege, on the other hand, does not exist to promote publicity or public awareness outside the courtroom. Its purpose is to facilitate open and vigorous litigation of matters inside the courtroom. Extending the privilege to publicity statements about litigation would detach the privilege from its underlying justifications and allow parties who publicize defamatory allegations to escape liability for defamation damages just because they have made similar charges in their court pleadings….

“In addition to the judicial-proceedings privilege, ALDF and Nasser also argue that attorney immunity bars Landry’s claims…..  The Notice Letter itself is the product of lawyerly work for a client involving the office, professional training, skill, and authority of an attorney. Landry’s did not sue the defendants for delivering the Notice Letter to the required entities, however. Landry’s sued the defendants for their publicity statements to the press and on social media. Such statements, while sometimes made by lawyers, do not partake of ‘the office, professional training, skill, and authority of an attorney.’ Anyone – including press agents, spokespersons, or someone with no particular training or authority at all – can publicize a client’s allegations to the media, and they commonly do so without the protection of immunity. While lawyers can also make such statements, attorney immunity does not apply to an activity simply because attorneys often engage in that activity. Nor does it apply, as the court of appeals suggested, any time an attorney concludes that publicity would further the representation. Some conduct by attorneys remains actionable even if done on behalf of a client.”

 

Landry’s Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40 (Tex. 2021).