For the last few years, defendants in trade secrets and other commercial litigation claims have used the previous version of Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) as a defense to those claims.  Langley v. Insgroup, Inc., No. 14-19-00127-CV, 2020 WL 1679625 (Tex. App.–Houston [14th Dist.] Apr. 7, 2020, no pet. h.) is another example of this strategy.  In Langley, an insurance salesman left his employer to work for a competitor.  The former employer accused the salesman of violating his non-compete agreement, tortious interference with the employer’s contracted clients, breach of fiduciary duty, and violation of the Texas Uniform Trade Secret Act.  The new employer was also a defendant to several of those causes of action.

In response, the salesman and the employer argued that the former employer’s claims should be dismissed under the TCPA.  The trial court rejected this argument, and Houston’s 14th District Court of Appeals took up the issue.  Assuming that the TCPA applied to the former employer’s claims, the court nevertheless held that the former employer had established the elements of the commercial speech exemption to the TCPA.  First, Defendants were primarily engaged in the business of selling insurance products or services.  Second, the lawsuit was based on the employee’s solicitation of the former employer’s customers.  Third, the statement or conduct at issue arose out of the sale of insurance products and services, which the kind of services Defendants provide.  Finally, the intended audience of the conduct was the former employer’s actual or potential customers.

The court further rejected Defendants’ arguments that the commercial speech did not apply to certain causes of action and that certain causes of actions were not based on statements to the former employer’s actual or potential customers.

The lesson here is that in the sales context, the commercial speech exemption will often be a barrier to TCPA motions to dismiss.  Of course, these issues will rarely arise in the commercial litigation context now because effective September 1, 2019, the TCPA no longer applies to most commercial litigation claims.

For a discussion of why the former employer’s claims failed at the temporary junction stage, please review my earlier blog post.