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Dallas Court of Appeals Explores the TCPA in Complex New Decision

Article by Heath Coffman

Through most of 2019, the Dallas Court of Appeals has refused to apply the Texas Citizens Participation Act (TCPA) to commercial litigation claims.  Goldberg v. EMR (USA Holdings) Inc., No. 05-18-00261-CV, 2019 WL 3955771 (Tex. App.–Dallas Aug. 22, 2019, no pet. h.) reverses that trend in part.  Goldberg is too complex of a case to summarize here.  Therefore, I’ll just hit the highlights:

  • The TCPA does not violate a party’s right to a jury trial;
  • The TCPA does not violate the Open Courts or Due Course provisions of the Texas Constitution or the Due Process Clause of the US Constitution;
  • For the commercial speech exemption, a company is “primarily engaged in the business of selling or leasing goods or services” even if the majority of its time or resources is not utilized in the selling of the goods or services as opposed to their acquisition, manufacture, or performance.  Even defendants who are not salespeople can be primarily engaged in the business of selling or leasing goods and services if the defendants’ labors assisted in the commercial enterprise leading to the sale or lease of the goods or services;
  • The commercial speech exemption can apply to certain communications even if other communications do not fall under the exemption;
  • The commercial speech exemption does not apply to communications with a company’s suppliers;
  •  In considering whether Plaintiffs presented a prima facie case, the court considers only the pleadings and evidence in favor of Plaintiffs’ case.  The court does not consider whether Defendants presented evidence rebutting Plaintiffs’ case;
  • The act of e-mailing a document to oneself or electronically saving a document to a drive or data-storage website without disclosing the document to anyone is not a “communication” under the TCPA because it does not “make” or “submit” the document
  • Defendants’ acts of taking the computer, tablet, and cell phones with the information saved on those devices were not communications under the TCPA because these actions did not make or submit a document.
  • Allegations of destruction of data on a cell phone is not a communication under the TCPA because it does not involve the making or submitting of a document.
  • The mere fact that defendants contacted the same companies that they worked with at their former employer is not evidence that they used trade secrets or confidential or proprietary information to do so.
  • A defendant’s communications with a plaintiff’s employees to hire them does not generally involve public or citizen participation and therefore the TCPA’s right of association is not implicated.

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