The Texas Citizens Participation Act (“TCPA”) is a statute in Texas that provides protection from frivolous lawsuits to people exercising their U.S. Constitution First Amendment rights.  The law provides a defendant who is sued for exercising the First Amendment right to freedom of speech, freedom of association or the right to petition the government the ability to file a motion to dismiss the lawsuit at the outset of the case.  The statute provides that the case shall be dismissed unless the plaintiff presents the court with evidence establishing a “prima facie case for each element of the claim in question.”

Zach Wolfe is in the midst of an interesting three-part blog post series in which he discusses a May 2017 decision by the Austin Court of Appeals, Elite Auto Body, LLC v. Autocraft Bodywerks, Inc., No. 03-15-00064-CV, 2017 WL 1833495 (Tex. App.—Austin May 5, 2017).  The court concluded that a Plaintiff’s theft of trade secrets claim was, in part, subject to a TCPA motion to dismiss. 

The Austin court stated that the Plaintiff’s allegation that a Defendant communicated the Plaintiff’s trade secrets to a competitor was a claim based upon a protected “communication” under the TCPA.  The Plaintiff’s assertion that the Defendants joined together to use the trade secrets to compete with the Plaintiff was held to be an assertion based upon the Defendants’ exercise of their freedom of association.  However, the court concluded that the Plaintiff’s claim that the Defendants’ used the Plaintiffs trade secrets was not subject to a TCPA motion to dismiss.  This is because “use” does not necessarily entail a communication, freedom of association or petitioning the government.

It remains to be seen whether the Texas Supreme Court and other intermediate Texas appellate courts will agree with the Austin Court of Appeals’ interpretation of the TCPA.  Another court may conclude that the statute does not apply to communications of business trade secrets or people associating to use the trade secrets.

There is also the question about whether the Elite Auto Body LLC opinion is much ado about nothing.  Won’t Plaintiffs avoid the risk of a TCPA motion to dismiss by limiting the allegations in their lawsuits to an allegation that the Defendants are using the Plaintiff’s trade secrets?

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