News

The TCPA Strikes Again

Article by Heath Coffman

In one of my earlier blog posts, I explained the how Texas’s anti-SLAAP statute, the Texas Citizens Participation Act (TCPA), is used as a defense to a misappropriation of trade secrets claim. Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2018 WL 2050213 (Tex. App.—Austin May 3, 2018, no pet. h.) provides another example of this defense. In Craig, Tejas Promotions shared trade secrets with potential purchaser Craig. Craig and his son then allegedly used those secrets to form a competing venture Tejas Vending. Tejas Promotions sued the Craig for breach of the NDA and Craig, his son, and the new company for breach of the Texas Uniform Trade Secret (TUTSA), conspiracy to misappropriate trade secrets, and declaratory judgment.

Craig, his son, and the new company responded by filing a motion for dismissal under the TCPA for the claims for conspiracy and declaratory judgment. (It is not clear why Craig did not file the TCPA motion for the TUTSA claims.) Tejas Promotions did not present a prima facie case in reply, instead arguing that the TCPA did not apply. The Austin Court of Appeals, relying on its reasoning in the Autocraft case, rejected this argument. Under the plain meaning of the TCPA, the defendants were exercising their right of association—even if that association was to allegedly misappropriate Tejas Promotions’s trade secrets and steal its business.

The defendants, however, could not assert a TCPA defense to the declaratory judgment claims because those claims were subsumed within Tejas Promotions’s other causes of action, which Craig did not challenge.

The bottom line:  Until the Legislature amends the TCPA , the TCPA remains a viable—if bizarre and unintended—defense to a trade secrets claim.