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:
- The party that filed the TCPA motion (Hieber) was primarily engaged in the business of selling or leasing goods or services;
- 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;
- 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
- 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.