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.
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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.
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