Addressing the issue of defending against claims seeking to remedy alleged misappropriation or misuse of a business’s trade secrets or confidential information by invoking the Texas Citizens Participation Act (TCPA), the Texas Third Court of Appeals ruled that the TCPA as written can potentially be invoked successfully to defend against these claims and, more broadly, that “communications” protected by the TCPA, which in turn can serve as predicate for a motion to dismiss a “legal action” under the TCPA, are not solely confined to speech that enjoys constitutional protection, but instead are defined by the language of the TCPA as written. Elite Auto Body LLC v. Autocraft Bodywerks, Inc., Case No. 03-15-00064 (Tex. App., May 5, 2017) (Pemberton, J).

The underlying litigation was initiated by appellee Autocraft Bodywerks, an auto-repair shop. The defendant (appellant here) Elite Auto Body was founded by a one-time employee of Autocraft. Additional Autocraft employees left that company to join Precision. Autocraft accused the former Autocraft employees of furnishing Precision with confidential, proprietary and trade secret information they had acquired through their former positions of trust and confidence with Autocraft to obtain an unfair competitive advantage in the marketplace. Based on these allegations, Autocraft sought injunctive relief to restrain appellant’s alleged impending or ongoing use or disclosure of Autocraft’s confidential and proprietary information and trade secrets, plus actual and exemplary damages.

Alongside more traditional litigation responses, appellant invoked the TCPA, seeking dismissal of Autocraft’s suit on grounds that this legal action “is based on, relates to, or is in response to” appellant’s “exercise of the right of . . . association” and the “exercise of the right of free speech” in its pursuit of Precision’s business. After the district court denied appellant’s motion, this appeal ensued.

The Third Court of Appeals explained that Autocraft’s claims were predicated factually on conduct that falls within either the “exercise of the right of association” by the appellant or its “exercise of the right of free speech,” as the TCPA defined those terms. The TCPA defined the former as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests,” and the latter as “a communication made in connection with a matter of public concern.”

Autocraft contended that the alleged theft and misuse of its trade secrets and confidential information was distinguishable from any “communications” or free expression. However, “communications” is itself a defined term under the TCPA, and the definition “includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual or electronic.”

Autocraft attempted to limit “communications” under the TCPA by insisting that the larger statutory context and anti-SLAPP purpose of the TCPA precludes a reading of communications that would extend beyond communications that the First Amendment protects. Autocraft argued that certain “historic and traditional” categories of speech that are considered susceptible to regulation without implicating First Amendment concerns include “speech integral to criminal conduct,” such as that “soliciting illegal transactions or other crimes,” that “incident to bribery or extortion,” or “that are uttered by a robber while ordering his victim to hand over the money.”

The Court rejected Autocraft’s attempt to limit TCPA communications solely to those the First Amendment protects, explaining that the TCPA defines communications with no such limitation. Rather it simply “includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic,” with no reference to constitutional rights or concepts.

Practice Note: Communications protected under the TCPA are not confined to communications that enjoy constitutional protection.