DALLAS – The 5th Circuit Court of Appeals at Dallas ruled that Erykah Badu’s comments on social media about former manager Paul Levatino were protected free speech, however the case is going back to the trial court for further rulings.
Paul Levatino worked for Erykah Badu (real name Erica Wright) for 8 years as the general manager of her business interests. His duties included merchandising, concert and event management, and marketing. He was paid through her company Apple Tree Cafe Touring.
On May 27, 2014, Badu terminated the employment of Levatino. She said on May 29, 2014, on social media that Levatino was never her manager and she had never had a manager, according to the court's opinion. She also alleged he had shut down her Facebook fan page.
In October 2014, Badu received a letter from Levatino’s lawyer Joseph H. Gillespie of Gillespie Sanford LLP stating she had defamed Levatino, and asking for a public retraction and compensation.
On Oct. 31, 2014, Badu filed a petition seeking a declaratory judgment, saying that Levatino had never been her talent manager and was not owed any compensation. Badu next filed an amendment to the petition alleging fraud, conversion and theft by deception.
In response to the petition, Levatino filed a counterclaim “...asserting Badu’s Facebook and Twitter posts were defamatory and have caused Levatino to suffer actual damages in the form of lost compensation and earning capacity, and non-pecuniary damages.” Additionally, “Levatino asserts Apple Tree is liable for the statements and omissions made by Badu,” according to the court of appeals' Aug. 3 order.
Levatino moved for dismissal of Badu’s claims under the Texas Citizens Participation Act (TCPA) and asserted that his pre-suit demand letters were protected activity under the TCPA.
To be considered an exercise of the right of association under the TCPA, communication must happen “between individuals who join together to collectively express, promote, pursue or defend common interests,” according to the court's opinion.
In his petition, Levantino claimed “Attorney-client communications that culminate in a demand letter to opposing counsel expressing the common interests of the attorney and client are protected under the right of association and it was error to hold otherwise.”
His petition also stated, “The court of appeals decision also contravenes the broadly written and liberally construed purpose of the act because instead of limiting frivolous anti-SLAPP suits, it instead incentivizes such suits by protecting parties that rush to the courthouse to file strategic retaliatory suits in response to pre-suit demand letters.”
The trial court, appellate court and Texas Supreme Court all denied his petition for review.
In its Aug. 3, ruling, the Court of Appeals Fifth District of Texas ruled that the issue of attorney’s fees was remanded back to the trial court to decide. It also ruled that Badu’s comments on social media were exercises of her right of association.
Additionally, the Court of Appeals 5th District of Texas ruled that because Badu’s comments on social media were damaging to his reputation, and it was commonly known in the music industry that he was her manager, that Levatino presented a prima facie case of defamation. According to the Wex Legal Dictionary, a "prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party."
The Court of Appeals Fifth District of Texas concluded that “We reverse, in part, that portion of the trial court’s order awarding Levatino attorney’s fees and cost, and remand the attorney’s fees and cost issue to the trial court to determine whether appellants’ motion was frivolous or solely intended to delay. We otherwise affirm the trial court’s order.”