Texas Supreme Court Hears Arguments in Walgreens v. McKenzie Over Scope of TCPA and Negligent‑Hiring Claims

The Supreme Court of Texas heard argument in Walgreens v. McKenzie on whether the Texas Citizens Participation Act, known as the TCPA, bars or permits negligent‑hiring, training and supervision claims against employers when those claims rest on employee conduct that the employer says is protected by the TCPA.

At issue is whether negligent‑hiring (and related negligent training or supervision) is a derivative tort that depends on a separately actionable wrong by the employee — and therefore should be treated the same as other derivative theories under the TCPA — or whether negligent hiring is independent “conduct” not subject to dismissal under the statute.

The question matters because, under the TCPA, a defendant can move to dismiss claims that are “based on” or “in response to” the exercise of protected rights; if the court finds protected conduct, the plaintiff must then make a “prima facie” showing of the elements of the claim to avoid dismissal. Petitioner Walgreens argued in the Court that negligent‑hiring claims are derivative and therefore should be dismissed if the underlying employee tort cannot survive TCPA scrutiny. Respondent McKenzie argued…