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Texas appeals court affirms dismissal of anti-SLAPP motion finding claims for breach of non-compete and customer non-solicitation covenants within TCPA’s commercial speech exemption

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Home Perspectives Texas appeals court affirms dismissal of anti-SLAPP motion finding claims for breach of non-compete and customer non-solicitation covenants within TCPA’s commercial speech exemption
The Texas Citizens Participation Act (TCPA) is Texas’ anti-SLAPP law. The TCPA allows a party facing a frivolous lawsuit to file an early motion to dismiss and, if successful, to recover its attorneys’ fees if the lawsuit is based on, relates to, or is in response to the movant’s exercise of the right of free speech, the right to petition, or the right of association. The TCPA recently was amended, effective September 1, 2019, to exempt claims for trade secret misappropriation and enforcement of covenants not to compete. However, claims brought before that time continue to make their way through Texas courts. One such recent case provides significant guidance on the TCPA’s “commercial speech exemption.”

In that case, Jeffrey Hieber (Hieber) resigned from his employment with Percheron Holdings, LLC and Percheron Professional Services, LLC (collectively, Percheron) and went to work for a competitor, LJA Surveying, Inc. (LJA). While at LJA, Hieber sold LJA’s services to a Percheron customer. Percheron sued, claiming that Hieber violated the non-compete and customer non-solicitation covenants he agreed to while employed by Percheron. Hieber responded to the lawsuit by filing a motion to dismiss the case under the TCPA.

Percheron asserted several responses to Hieber’s TCPA motion, including that his claims were exempted from TCPA protection under the “commercial speech exemption,” which exempts claims that relate to statements and conduct in connection with the sale or lease of goods or services. Specifically, this exemption applies when:

  1. The party that filed the TCPA motion (Hieber) was primarily engaged in the business of selling or leasing goods or services;
  2. The party that filed the TCPA motion made the statement or engaged in the conduct on which the claim in the lawsuit is based in that party’s capacity as a seller or lessor of those goods or services;
  3. The statement or conduct at issue in the claim arose out of a commercial transaction involving the kind of goods or services the movant provides; and
  4. The intended audience of the statement or conduct was an actual or potential customer of the party that filed the TCPA motion for the kind of goods or services the movant provides.