Roger Epperson v. Todd Mueller D/B/A Autographnewslive.com
01-15-00231-CV
| Tex. App. | Aug 11, 2016Background
- Mueller (seller of autographed memorabilia) sued Epperson (prominent autograph authenticator) for business disparagement and tortious interference, alleging Epperson posted online and contacted eBay/Amazon claiming Mueller sold forged/fake autographs and thus lost sales and customers.
- Epperson moved to dismiss under the Texas Citizens’ Participation Act (TCPA), asserting his forum posts and communications were protected free-speech among the autograph-collecting community and on matters of public concern (authenticity of goods).
- Epperson submitted an affidavit describing his long experience authenticating music autographs, media appearances, and participation on Autograph Magazine Live (AML); he said his remarks were professional opinions, not commercial solicitations.
- Mueller submitted an affidavit asserting specific economic harms tied to particular items and bidders, contending Epperson’s statements were factual attacks made to deter buyers and thus were commercial speech exempt from the TCPA.
- The trial court did not rule within the statutory time; the motion to dismiss was deemed denied by operation of law and Epperson appealed.
- The Court of Appeals held the TCPA’s commercial-speech exemption applied and affirmed the denial of Epperson’s TCPA dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ statements are an exercise of free speech under TCPA | Mueller: statements are not protected because they are commercial speech attacking his business | Epperson: posts and reports were professional opinions on authenticity; matter of public concern and protected by TCPA | Court: communications were "communications" on a matter of public concern but fell within TCPA commercial-speech exemption |
| Whether TCPA applies to online/forum posts and reports to third parties | Mueller: challenged applicability, arguing commercial-speech exemption | Epperson: posts, replies on AML and any reports to eBay/Amazon were non-commercial community commentary | Court: forum posts are communications; but were tied to sale/authentication services and therefore commercial in context |
| Whether the commercial-speech exemption requires compensation or overt solicitation | Mueller: exemption applies because statements arose from sale/auction context and targeted buyers | Epperson: no compensation and no explicit solicitation, so exemption should not apply | Court: exemption does not require proof of payment or explicit solicitation; statements made in course of providing authentication/services suffice |
| Whether intended audience was actual/potential customers | Mueller: Epperson targeted collectors/buyers and directly reached customers (causing refunds/losses) | Epperson: intended audience was general hobby community, not customers of his services | Court: intended audience included actual/potential buyers of memorabilia; direct replies and effects on bidders support exemption |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA burden-shifting framework and purpose)
- Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. 2013) (de novo review of TCPA applicability)
- Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013) (commercial-speech exemption analysis and factors)
- Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014) (prima facie burden under TCPA)
- KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2013) (definition of prima facie under TCPA)
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (statutory construction principles)
- TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (consider statute as whole in construction)
- Deaver v. Desai, 483 S.W.3d 668 (Tex. App.—Houston [14th Dist.] 2015) (website statements qualify as communications under TCPA)
- Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012) (statements about goods/services can be matters of public concern)
- Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299 (Tex. App.—Dallas 2013) (audience analysis where intended customers differ from general public)
- NCDR, L.L.C. v. Mauze v. Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) (discussing solicitation and the commercial-speech exemption in TCPA context)