The Dallas Court of Appeals opinion in Damonte v. Hallmark Financial Services, Inc., No. 05-18-00874-CV, 2019 WL 3059884 (Tex. App.–Dallas July 12, 2019) is the latest in a string of cases restricting the application of the Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA). In this case, Hallmark sued Damonte, its former employee, for breach of fiduciary duty, breach of contract, and violations of the Texas Uniform Trade Secret Act (TUTSA) after employees were found to be emailing themselves proprietary information in the weeks immediately before his departure. In response, Damonte filed a motion to dismiss under the TCPA, alleging that Hallmark’s lawsuit was based on, relates to, or in response to his rights of free speech and association.
The Dallas Court of Appeals disagreed. Regarding the free speech prong, Damonte cited allegations in the petition that he and other employees communicated a scheme to misappropriate Hallmark’s trade secrets, but the Court held that communications among alleged tortfeasors to misappropriate confidential information are not within the scope of the TCPA’s free speech prong. This was true despite Damonte’s strenuous denials that he was involved in the scheme and despite his attempt to recharacterize the communications as being based on complaints about company morale.
The Court also rejected Damonte’s association argument for the same reasons and held that “communications . . . related to a scheme to misappropriate and wrongfully disclose and/or use the company’s confidential information” are “not protected by the right of association under the TCPA.”
Note: this case was decided under the previous version of the TCPA. Effective September 1, 2019, the TCPA no longer applies to most commercial litigation claims.