As previously discussed, the current version of the Texas Citizens Participation Act (TCPA) can apply in a variety of commercial litigation cases. One of the exceptions to application of the TCPA, though, is the commercial speech exemption. Under the commercial speech exemption, the TCPA does not apply if (1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of good or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides.
The new Dallas Court of Appeals case of Clean Energy and Clean Energy Fuels Corp. v. Trillium Transportation Fuels, LLC, No. 05-18-01228, (Tex. App.—Dallas July 9, 2019, no pet. h.) interprets the third prong of this exemption. In Clean Energy, Clean Energy first argued the commercial speech exemption did not apply because its communications to customers—which related to competitor Trillium’s alleged high prices—were not the kind of goods or services that Clean Energy provides. The Dallas Court of Appeals rejected that argument, noting that the “[a]lthough the email communications included information about Trillium and the alleged overpricing of services, the intended goal of the emails was to persuade Trillium’s customers and potential customers to terminate its contracts and allow Clean Energy an opportunity to bid on its goods and services.” Therefore, the emails were about Clean Energy’s goods and services.
The Dallas Court next rejected Clean Energy’s argument that its communications did not arise out of a commercial transaction because the commercial transaction the transaction was never completed. Under the TCPA, a commercial transaction only has to be proposed; it does not have to be completed.