If you have been following Texas cases on the Texas Uniform Trade Secrets Act (TUTSA), you know that a plaintiff that files a TUTSA claims will almost inevitably receive in response a motion to dismiss under Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA). This is what happened in Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet. h.), and Gaskamp provides some important reminders—for both plaintiffs and defendants—on how to handle that motion and the inevitable appeal.
In Gaskamp, plaintiffs WSP USA Administration, Inc., WSP USA Buildings, Inc. and WSP USA, Inc. sued their former employers and their new employer alleging misappropriation of trade secrets under TUTSA (and other causes of action). Most of the defendants responded with motions to dismiss under the TCPA. Plaintiffs responded by filing a second amended petition, which dropped WSP USA, Inc. as a plaintiff. Plaintiffs WSP USA Administration, Inc. and WSP USA Buildings, Inc. then filed a response which made four arguments: (1) defendants TCPA motions were moot because they filed an amended petition, (2) the TCPA did not apply to trade secrets claims, (3) the TCPA’s commercial speech exception applied to defendants claims, and (4) plaintiffs offered prima facie evidence of each element of their claims. For argument (4), plaintiffs relied solely on the verified pleadings in the second amended petition. The trial court denied the motion denied defendants’ motion without specifying a reason. Defendants subsequently appealed, but they did not address the commercial speech exception in its initial brief.
Houston’s First Court of Appeals affirmed in part and denied in part. The First Court of Appeals held:
- Contrary to Defendants’ arguments, Plaintiffs were entitled to rely on their second amended petition to respond to defendants’ TCPA motions. Affidavit testimony was not required. The Court warned, however, that “a party that relies only on its pleadings does so at its own risk of being found not to have satisfied its TCPA burden under the circumstances of the case.”
- To succeed on appeal, Defendants had to attack all independent grounds that fully support the adverse ruling. Defendants did not address the commercial speech exception until its reply brief. Thus, defendants waived this issue, and the court could affirm the trial court’s decision to deny defendants’ motions to dismiss relating to plaintiffs WSP USA Administration, Inc. and WSP USA Buildings, Inc.
- The filing of an amended petition did not moot defendants’ motions to dismiss because the motions to dismiss asserted claims for costs, attorneys’ fees and sanctions. Thus, plaintiff WSP USA, Inc. had to respond to the TCPA motions. Because WSP USA did not respond and because defendants established that the TCPA applied, the trial court erred in denying the motions to dismiss against WSP USA. The Court reversed and remanded for a determination of fees, costs, and sanctions.
So what are the lessons from Gaskamp? First, if a plaintiff is responding to a TCPA motion, it is best practice—though not a requirement—to submit evidence beyond its own pleading to satisfy the prima facie evidentiary burden. Second, non-suiting your claims or amending your petition does not moot defendants’ TCPA motions; you must still file a response. Thus, plaintiffs should think long and hard about who is the proper plaintiff and what causes of action should be filed before filing a trade secrets claim. Third, if you are appealing a TCPA ruling, you must address every independent ground that supports the judgment or you risk waiving your argument on appeal.