594 S.W.3d 818
Tex. App.2020Background
- Kenneth Goldberg sold Gold Metal Recyclers to EMR (over $100M) and signed nondisclosure and noncompetition agreements; he later worked for EMR and was subject to confidentiality and post-employment noncompete restrictions.
- After restrictive periods expired, Goldberg formed Geomet Recycling and hired multiple former EMR employees.
- Some former employees allegedly copied/downloaded EMR’s database (Trade 2) and other confidential files to personal e-mail accounts, external drives, or took company devices; some devices were later returned with data erased.
- EMR sued Goldberg, Geomet, and former employees for misappropriation of trade secrets (TUTSA), breach of contract, breach of fiduciary duty, tortious interference, conspiracy, and sought injunctive relief and damages.
- Defendants moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing plaintiffs’ claims were based on or related to Defendants’ protected communications (free speech/association); the trial court denied the motion and this interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are electronic transfers/copies (e‑mailing files to self, saving to drives, taking devices, wiping phones) "communications" under TCPA? | These acts are theft/misuse, not protected communications. | Copying or exporting files is an electronic communication protected by TCPA. | Not communications: copying/saving to one’s own account or taking devices without third‑party disclosure is not "making" or "submitting" a communication; TCPA does not apply to these claims. |
| Do e‑mails/contacts with purchasers and suppliers about buying/selling scrap metal constitute protected free speech (matter of public concern)? | Claims arise from misappropriation and private commercial solicitations, not public‑concern speech. | Emails/offers concern recycling and the scrap‑metal market (environmental/economic/public interest) and are protected. | Communications to suppliers/customers are communications but concern private commercial transactions, not a "matter of public concern"; TCPA does not shield these claims. |
| Are communications to recruit/hire former employees protected as association or free speech? | Hiring solicitations are private commercial communications and induced misuse of confidential info. | Recruitment/association with former employees is protected association/free speech. | Not protected: private recruiting lacks public/citizen participation and is not tied to a matter of public concern; TCPA inapplicable. |
| Do conspiracy, tortious interference, and request for injunctive relief fall under TCPA protections? | These claims rest on non‑protected acts (misappropriation, private solicitations, hiring) so TCPA does not apply. | Defendants argue the underlying communications are protected, so derivative claims are covered. | Denied: because underlying acts are not protected speech/association as defined by TCPA, dismissal under TCPA was properly denied for these claims and for injunctive relief. |
Key Cases Cited
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (three‑step TCPA framework and statutory construction principles)
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (plain‑meaning statutory construction)
- In re Office of Att’y Gen., 422 S.W.3d 623 (Tex. 2013) (read statute as a whole; give effect to every provision)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (plaintiff’s pleadings ordinarily define nature of action)
- Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300 (Tex. 1936) (pleadings as evidence of nature of action)
- Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54 (Tex. 2011) (legislative intent controls statutory interpretation)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (adhere to TCPA definitions)
- Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 (Tex. App.—Dallas 2019) (association requires public/citizen participation)
- Lei v. Natural Polymer Int’l Corp., 578 S.W.3d 706 (Tex. App.—Dallas 2019) (private business communications do not implicate public concern under TCPA)
- Leibovitz v. Sequoia Real Estate Holdings, L.P., 465 S.W.3d 331 (Tex. App.—Dallas 2015) (elements required for injunctive relief)