Over the past several months, I’ve been tracking the explosion of cases where a defendant uses Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) as a defense to a misappropriation of trade secrets claim under the Texas Uniform Trade Secrets Act (TUTSA).  The Beaumont Court of Appeals case in Callison v. C&C Pers., LLC, No. 09-19-00014-CV, 2019 WL 3022548(Tex. App.–Beaumont July 11, 2019, no pet. h.) is another one of those cases.  Callison involves the familiar fact pattern of an employee accused of acquiring her former employee’s trade secrets and then using those trade secrets to solicit her former customers.  In defense to those claims, the employee filed a motion to dismiss under the TCPA.  The trial court denied employee’s motion by operation of law.  The Beaumont Court of Appeals affirmed.

First, the Court held that the employee was correct that TCPA applied to her claims because the lawsuit was based on, relates to, or in response to her free speech rights.  Despites the employers’ purposeful effort to characterize her misappropriation as only “use” or “conduct,” any use of a trade secret requires a disclosure, and a disclosure is a “communication” under the TCPA.  Furthermore, because the complained communication involved acquiring customer for her business, the communications met the definition of “matter of public concern” because they “related to a good, product, or service in the marketplace.”

Unfortunately for the employee, though, the employers established the commercial speech exemption to the TCPA.  The Court held that using confidential or proprietary information from a previous employer to target and secure the same customers satisfies all the elements of the commercial speech test under Texas law.

Of course, the analysis would be different under the current version of the law, which eliminated the TCPA’s application to trade secret cases.