If you have been following this blog, you know that a frequent topic is the application of Texas’s anti-SLAAP statute–the Texas Citizens Participation Act (TCPA)–to the Texas Uniform Trade Secrets Act.  In cases such as Craig v. Tejas Promotions, LLC, 550 S.W.3d 287 (Tex. App.–Austin 2018, pet. filed) and Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (Tex. App.–Austin 2017, pet. denied), the Austin Court of Appeals held that a petition alleging that two conspirators are working together to misappropriate a competitor’s trade secrets implicates the right of association prong of the TCPA.  In a surprising new opinion, though, the Fort Worth Court of Appeals indicates that it is not going to follow these holdings.

In Kawcak v. Antero Resources Corporation, No. 02-18-00301-CV, — S.W.3d — (Tex. App.–Fort Worth, February 21, 2019, pet. denied), plaintiff sued a “rogue” employee that was allegedly accepting bribes in exchange for contracts and confidential pricing information.  Plaintiff sued the employee for breach of fiduciary duty, money had and received, and declaratory judgment.  In response, the employee filed a motion to dismiss under the TCPA.   The employee argued that plaintiff’s allegation that he was engaged in a conspiracy meant that he was communicating with others for a “common interest,” which is the definition of the right of association under the TCPA.

The Fort Worth Court of Appeals disagreed, focusing on the plain meaning of the word “common.”  Relying on multiple dictionary definitions that define “common” as  “of or relating to the community at large,” as well as the TCPA’s stated purpose “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 a person to file meritorious lawsuits for demonstrable injury,” the Court determined that “common interest” under the TCPA requires interests that are “shared by the public or at least a group.”  The defendant employee’s interest, on the other hand, were limited to the interests of two conspirators who joined together to commit a tort, which was not sufficient to invoke the TCPA.  Thus, the trial court correctly denied the defendant employee’s motion to dismiss under the TCPA.

The Court additionally noted that its opinion was in conflict with the holdings from the Austin Court of Appeal, but it distinguished its opinion by noting that none of those cases analyzed the meaning of the word “common” under the TCPA.  Thus, it will likely take an opinion from the Texas Supreme Court to resolve this split.  Interestingly, though, the Texas Supreme Court denied review of this case.