H. MICHAEL KRIMBILL, Plaintiff/Appellee,
LOUIS C. TALARICO, III, an individual; and LCT CAPITAL LLC, a Delaware Limited Liability Company, Defendants/Appellants.
Mandate Issued: 05/09/2018
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
LINDA G. MORRISSEY, TRIAL JUDGE.
J. Carwile, Clayton J. Chamberlain, MCDONALD, MCCANN, METCALF
& CARWILE, L.L.P., Tulsa, Oklahoma, for
L. Wohlgemuth, Ryan A. Ray, NORMAN WOHLGEMUTH CHANDLER JETER
BARNETT & RAY, P.C., Tulsa, Oklahoma, for
THOMAS THORNBRUGH, VICE-CHIEF JUDGE.
Defendants/Appellants, Louis Talarico, III (Talarico), and
LCT Capital, LLC (LCT)(collectively, Defendants or Talarico
Defendants), appeal from the trial court's order denying
their motion to dismiss the petition of Plaintiff/Appellee H.
Michael Krimbill (Krimbill), pursuant to the Oklahoma
Citizens Participation Act, 12 O.S.Supp. 2014 Â§§ 1430
through 1440 (OCPA or the Act). For the reasons discussed
below, we affirm.
parties are involved in protracted litigation in the state of
Delaware, where LCT has filed claims of breach of contract,
unjust enrichment, and fraudulent misrepresentation against
Oklahoma-based, publicly traded NGL Energy Partners, LP, and
its general partner, NGL Energy Holdings, LLC (collectively,
NGL), resulting from a transaction known as the
"TransMontaigne acquisition." In October 2015,
Talarico sent the following email to James Kneale, the head
of NGL's audit committee:
From: Lou Talarico
Sent: Thursday, October 8, 2015 1:51 PM
Subject: NGL Litigation
Attachments: Amended Complaint (as filed, 9-29-15).pdf Jim,
contacting you regarding a complaint that LCT Capital has
filed against NGL Energy Holdings and NGL Energy Partners
regarding fees due in connection with the TransMontaigne
transaction. An amendment to the original complaint was filed
on September 29 and is attached for your review. Given the
materiality of the claim as well as the nature of the events
detailed in the complaint, I thought it important that the
audit committee and board of directors be aware of the
believe the misrepresentations made to LCT Capital, as
detailed in the Complaint, are illustrative of broader, more
systemic issues at the company under Mike's leadership --
issues that have affected the accuracy of NGL's public
filings and Mike's public statements about the business.
available to discuss the complaint or other issues with you
and the audit committee or the board at your convenience.
Lou Talarico LCT Capital, LLC
October 16, 2015, Krimbill filed a petition in Tulsa County
District Court alleging the email had libeled him personally.
On October 30, 2015, Defendants moved to dismiss
Krimbill's petition with prejudice, pursuant to,
inter alia, the OCPA. On February 26, 2016, the
district court denied this motion. Defendants now appeal.
There is no established appellate standard of review in this
case.  It is clear that the OCPA provides a
new summary process/dismissal procedure in certain cases,
however, and that, traditionally, Oklahoma appellate courts
have reviewed decisions pursuant to such procedures by a
de novo standard. The OCPA also requires dismissal
if a plaintiff fails to show a prima facie case, and
is hence similar to a motion for directed verdict. Directed
verdict challenges also are reviewed de novo.
Finally, Texas, which has an almost identical act, has
adopted a de novo standard of review.  Hence, we
find a de novo standard indicated by existing
precedent and persuasive authority, and we adopt that
Oklahoma's Act, which became effective in 2014,
mirrors that of the Texas Citizens' Participation Act
(TCPA or Texas Act), enacted in 2011 under the title,
"Actions Involving the Exercise of Certain
Constitutional Rights, " Tex. Civ. Prac. & Rem. Code
Ann. Â§§ 27.001 through 27.011. The Texas Act has been
the subject of numerous decisions by the Texas courts,
which we may look to as persuasive authority in resolving
this matter. See, e.g., In re
Fletcher's Estate, 1957 OK 7, Â¶ 25, 308 P.2d 304
(general rule, with some exceptions, is that a statute
adopted by Oklahoma from another state which at the time of
adoption has been construed by the highest court of the first
state, is presumed adopted as so construed; however, if
decisions by the highest court of the other state occurred
after adoption of the statute in Oklahoma, such decisions are
legislature enacted the OCPA "to encourage and safeguard
the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the
same time, protect the rights of [persons] to file
meritorious lawsuits for demonstrable injury." 12
O.S.Supp. 2014 § 1430.
Purpose of "Anti-SLAPP" Acts
legislation is an example of "anti-SLAPP"
(Strategic Lawsuit Against Public Participation) legislation,
the purpose of which is to curb "lawsuits brought
primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances." Cal. Civ. Proc. Code § 425.16(a).
Anti-SLAPP legislation appears to be the result of an
increasing tendency by parties with substantial resources to
file meritless lawsuits against legitimate critics, with the
intent to silence those critics by burdening them with the
time, stress, and cost of a legal action. To carry out this
purpose, anti-SLAPP acts typically provide an accelerated
dismissal procedure, available immediately after a suit is
filed in order to weed out meritless suits early in the
Anti-SLAPP acts may be generally characterized as
"narrow" or "broad." See Shannon
Hartzler, Protecting Informed Public Participation:
Anti-SLAPP Law and the Media Defendant, 41 Val. U.L.
Rev. 1235, 1236 (2007). A narrow act protects only certain
speech made in limited circumstances, often when the speech
is discussing a political or municipal issue.  The acts of
Texas, Oklahoma and California are, by comparison,
"broad" acts, directed at protecting a wide
spectrum of First Amendment speech, with limited exceptions.
an OCPA proceeding, the initial burden is on the defendant
seeking dismissal to show that the plaintiff's claim
"is based on, relates to, or is in response to the
[defendant's] exercise of the right of free speech, the
right to petition, or the right of association." 12
O.S.Supp. 2014 § 1434 (B). The burden then shifts to the
plaintiff to show "by clear and specific evidence a
prima facie case for each essential element of the
claim in question." Id., § 1434(C). If
§ 1434(C) is satisfied, the burden shifts back to the
defendant to show "by a preponderance of the
evidence" a defense to the plaintiff's claims.
Id., § 1434(D). If the plaintiff's
prima facie case fails, or the defendant shows a
defense by a preponderance of the evidence, the suit is
three basic issues thus presented by the text of the Act, and
by this appeal, are (1) whether the defendant has shown the
plaintiff's action is based on, relates to, or is in
response to the defendant's exercise of rights protected
by the Act; (2) whether the plaintiff has demonstrated a
prima facie case; and (3) if so, whether the
defendant shown a "valid defense by a preponderance of
INTERPRETING THE OCPA
Interpreting the OCPA requires balancing the unusual
judgment/dismissal provisions of § 1434 against two
other OCPA provisions, Â§§ 1430 and 1440. The tension
between these sections is immediately evident.
Section 1434(C) appears to introduce a new evidentiary
standard of "clear and specific evidence" that has
no prior history in Oklahoma. Section 1434(D) appears to
allow a court to dismiss a case with prejudice based on the
judge's weighing of the evidence on the merits
of the case. Read in isolation, § 1434 appears to
provide for a summary form of bench trial on the merits
before a defendant has answered.
However, OCPA § 1440 provides that the Act "shall
not abrogate or lessen any other defense, remedy, immunity or
privilege available under other constitutional, statutory,
case or common law or rule provisions, " and § 1430
states the legislative purpose of the OCPA is to weed out
meritless suits while protecting "the rights of a person
to file meritorious lawsuits for demonstrable injury."
Tension between the § 1434 procedure and the Act's
statements of legislative intent is inescapable, and requires
the resolution of several issues in a manner giving effect to
legislative intent before we can analyze the facts in this
case. The first such issue is the requirement that a
plaintiff establish "a prima facie case for
each essential element of the claim in question" by
"clear and specific evidence."
THE " PRIMA FACIE CASE" AND "CLEAR
AND SPECIFIC EVIDENCE"
Once a defendant has shown that the Act applies, the burden
shifts to the plaintiff to show "by clear and specific
evidence" the requirements of § 1434(C). The Act
does not define "clear and specific evidence, " and
that phrase has not previously appeared in published Oklahoma
appellate case law.
Prima Facie Case Under the Act
Oklahoma jurisprudence does define prima facie case.
See, e.g., Hill v. State, 1983 OK
CR 161, Â¶ 3, 672 P.2d 308, quoting Black's Law
Dictionary, 4th Rev. Ed., 1968, and defining "prima
facie case" as, "Such as will suffice until
contradicted and overcome by other evidence. A case which has
proceeded upon sufficient proof to that stage where it will
support finding if evidence to contrary is disregarded."
Because the Legislature would not have stated two
contradictory standards in the same sentence, we presume that
its definition of "clear and specific evidence" in
§ 1434(C) is in harmony with the established standard
for prima facie case.
Texas courts have recognized this issue, and reached the same
conclusion regarding the TCPA. In In re Lipsky, 460
S.W.3d 579 (Tex. 2015), the Texas Supreme Court noted:
The statute... requires not only "clear and specific
evidence" but also a " prima facie
case." In contrast to "clear and specific
evidence, " a " prima facie case"
has a traditional legal meaning. It refers to evidence
sufficient as a matter of law to establish a given fact if
it is not rebutted or contradicted.
Id. at 590.
find such reasoning consistent with Oklahoma law. We hold
that, even though the Oklahoma Act initially demands more
information about a plaintiff's underlying claim by
requiring a showing of a prima facie case, "the
Act does not impose an elevated evidentiary standard or
categorically reject circumstantial evidence."
Id. at 591.
Evidence Should the Court Consider while Examining for a
Prima Facie Case?
Defendants argue that, in determining whether a prima
facie case has been shown, the court may not consider
the pleadings. We disagree.
OCPA is clear that a district court "shall consider the
pleadings and supporting and opposing affidavits stating the
facts on which the liability or defense is based." 12
O.S.Supp. 2014 § 1435. In contrast, the minimal
requirements of notice pleading do not mandate that a
petition state sufficient facts to establish a prima
facie case, but only an allegation of general facts
supporting the elements of a cause of action. Hence, a
petition, if pled to the minimum standard of notice
pleading, may not provide sufficient "clear and specific
evidence" for purposes of the OCPA. Nevertheless, the
Act clearly contemplates that the pleadings may be
"VALID DEFENSES" SHOWN BY A "PREPONDERANCE OF
of the most unique features of the Act is the structure of
§ 1434(D), which allows dismissal if "valid
defenses" are shown by a "preponderance of the
evidence" even if a prima face case has been
established. This section appears to provide for a pre-answer
bench trial on the merits. Such a procedure would be
unprecedented in Oklahoma law.
Legislature stated in § 1440 of the Act that it did not
intend to "abrogate or lessen any other defense, remedy,
immunity or privilege available under other constitutional,
statutory, case or common law or rule provisions."
Unless we interpret the Act as transforming any action at law
that may be subject to the OCPA -- and there are likely many
affected actions  -- into a case that would allow the
trial judge to decide disputed questions of material fact in
a dismissal procedure, § 1434(D) must be more narrowly