As discussed in previous posts, multiple Texas cases have held that Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) applies in most commercial litigation cases. In a recent string of decisions, though, the Dallas Court of Appeals is attempting to restrict the application of the TCPA to commercial litigation cases.

Staff Care, Inc. v. Eskridge Enterprises, LLC, No. 05-18-00732-CV, 2019 WL 2121116 (Tex. App.—Dallas May 15, 2019, no pet. h.) is one of those cases restricting the TCPA. In Staff Care, plaintiff Staff Care, a physician staffing company, worked with defendant Eskridge Enterprises, another staffing company that frequently placed Staff Care’s physicians under its contracts. After Staff Care pulled its physicians from the Eskridge contract, a lawsuit ensued. Staff Care first sued for breach of contract. Eskridge then counterclaimed for tortious interference and deceptive trade practices act violations, alleging, among other things, that Staff Care had told its physicians not to work directly with Eskridge and had told Eskridge that it would have to pay fees if it worked directly with Staff Care’s physicians.

Staff Care then filed a motion to dismiss under the TCPA, alleging that the communications were based on, related to, or in response to Staff Care’s free speech and association rights under the TCPA. The trial court denied the motion, and Staff Care appealed.

The Dallas Court of Appeals agreed with the trial court. First, the Court addressed the argument that the communications related to a matter of public concern—i.e., an issue related to the health or safety, community well-being, or a good, product or service in the marketplace. The Court first reasoned that that the communications did not involve health and safety or community well-being because the communications were not impacting the physicians’ ability to provide health care; instead, the communications related to Eskridge’s business relationships with the physicians. Similarly, these communications did not involve services in the marketplace because they were not communications about Staff Care’s services in the marketplace, they were communications about the physicians’ ability to work with Eskridge.

The Court did find that a separate set of communications—communications by Staff Care allegedly to induce physicians to hire Staff Care and not Eskridge—were related to services in the marketplace and therefore matters of public concern that implicated the exercise of the right of free speech. However, the Court found that the commercial speech exception to application of the TCPA applied. Here, Staff Care’s intended audience for its services was physicians. Since the communications arose out of a commercial transaction involving the services that Staff Care provided, the Court held that the commercial speech exception applied.

The Court also rejected the Staff Care’s argument that the association prong of the TCPA applied, holding that the association prong was not applicable to private communications that did not involve public or citizen participation.

The lesson in this case is that until the Texas Supreme Court holds otherwise, the Dallas Court of Appeals takes a much more narrow view of the TCPA’s application to commercial litigation cases than other courts of appeals.