In one of my previous posts, I mentioned how the Fort Worth Court of Appeals restricted the scope of Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) by determining that the “common interest” in the definition of “right of association” under the TCPA requires interests that are “shared by the public or at least a group.”  This is a holding that arguably conflicts with other courts of appeals that have held that the “right of association” is implicated in situations where alleged tortfeasors are working together to further a competing business or other interest “common” to the tortfeasors.

The Dallas Court of Appeals, though, decided to follow Fort Worth’s lead in determining that the term “common interest” in the definition of “right of association” requires an “element of public participation.”  In Dyer v. Medoc Health Services, LLC, 573 Sw3d 418 (Tex. App.–Dallas March 8, 2019, pet. denied), the Dallas Court of Appeals determined that text messages between two individuals allegedly pertaining the misappropriation of proprietary software and confidential business information had no “element of public participation.”  Therefore, the defendants in that case failed to establish that the plaintiffs’ claims were based on, related to, or in response to defendants’ exercise of the right of association as defined by the TCPA.

The Court further held that defendants failed to establish the TCPA applied under its free speech prong, reasoning that defendants’ text messages were not a matter of public concern under the TCPA’s definition of free speech “simply because the proprietary and confidential information that was to be misappropriated belonged to a company in the healthcare industry or because the alleged tortfeasors hoped to profit from their conduct.”

For an in depth discussion as to how the TCPA applies to trade secrets and other commercial litigation claims, please see my 2018 Trade Secrets Update.  However, with these new cases from Fort Worth and Dallas, the scope of the TCPA has changed dramatically since this paper was published.