384 F. Supp. 3d 674
N.D. Tex.2019Background
- Plaintiff Todd O'Gara (founder/CEO) and Wanu Water (Delaware corp., California-domiciled) sued Texas investor Joseph P. Binkley III for an allegedly orchestrated email campaign questioning O'Gara's academic credentials and management, asserting libel, tortious interference (contract & business relations), civil conspiracy, and California UCL claims.
- Disputed communications: August–September 2018 emails (investor letter with management questions), an investor-circulated summary of resume discrepancies, and a third‑party background-check report; some recipients were board members and other investors.
- Defendant moved to dismiss under the Texas Citizens Participation Act (TCPA) and Fed. R. Civ. P. 12(b)(6), asserting First Amendment/association protections and failure to plead viable claims.
- Court held TCPA does not apply in federal diversity cases (Erie analysis) because it is procedural and conflicts with Federal Rules 12 and 56, so it declined dismissal on TCPA grounds.
- On Rule 12(b)(6) review the court accepted pleadings facts but dismissed all claims without prejudice: libel (failure to plead falsity and privilege defeated by lack of actual malice), tortious interference with business relations (no independent wrongful act beyond privileged communications), tortious interference with contract (no specific breaches or resulting damages pleaded), UCL and civil conspiracy (derivative of other deficient claims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA applies in federal diversity action | TCPA applies; procedural/substantive choice resolved for TCPA | TCPA is procedural or conflicts with FRCP; federal rules govern | TCPA does not apply in federal court; court declines dismissal under TCPA |
| Libel (California law): falsity and defamatory meaning of emails/background report | Statements accused O'Gara of not attending schools and misrepresented credentials; libel per se | Statements were questions/concerns about credentials tied to company disclosure and not pleaded as false; some statements privileged | Libel dismissed: plaintiffs failed to plead falsity for degree allegations; statements privileged under common‑interest doctrine and no actual malice pleaded |
| Tortious interference with business relations | Emails disrupted investor relations and voting agreements causing economic harm | Claims are derivative of privileged libel allegations and lack an independently wrongful act | Dismissed: no independent wrongful act alleged beyond privileged communications; derivative claim fails |
| Tortious interference with contract (voting agreements) | Emails induced shareholders to question/abandon voting agreements | Complaint fails to allege specific breaches, disruption, or resulting damages attributable to defendant | Dismissed: no factual allegation of actual breach/disruption or resulting damage; conclusory assertions insufficient |
Key Cases Cited
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (federal courts apply state substantive law and federal procedural law)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard under Rule 8)
- Ashcroft v. Iqbal, 556 U.S. 662 (conclusory allegations insufficient to survive 12(b)(6))
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (minor inaccuracies do not establish falsity if gist is true)
- In re Lipsky, 460 S.W.3d 579 (purpose and scope of Texas TCPA)
- Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir.: anti‑SLAPP statute conflicts with FRCP 12 and 56; Erie limits state anti‑SLAPP in federal court)
- Cuba v. Pylant, 814 F.3d 701 (5th Cir. case discussing TCPA applicability; contains influential dissent arguing TCPA procedural)
- Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503 (conspiracy doctrine requires an underlying tort)