616 S.W.3d 903
Tex. App.2021Background:
- AEG Petroleum sued Western Marketing and employee Todd Pitts for defamation, business disparagement, Lanham Act violations, antitrust (restraint of trade/conspiracy), and tortious interference, based on statements Pitts allegedly made about AEG and an affidavit Pitts executed for Chevron.
- Western moved to dismiss under the Texas Citizens Participation Act (TCPA); the trial court denied the motion and Western appealed interlocutorily.
- AEG alleged Western ran an anticompetitive scheme: inducing suppliers/customers (Old World, Lubriformance, CITGO, Chevron, Hansford, SBJ) to boycott AEG or believe AEG sold counterfeit products.
- Western argued the challenged statements were protected by the TCPA as petition- or speech-related (including an affidavit used in litigation and communications about goods in the marketplace).
- The appellate court analyzed: (1) whether the TCPA applies to the pleaded claims; (2) whether the commercial-speech exemption defeats TCPA protection for some statements; and (3) whether AEG met the TCPA’s burdens (prima facie proof or evidence of a valid defense).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCPA cover AEG’s claims? | AEG: many torts arose from unprotected pre/post-litigation wrongdoing, not protected petition/speech. | Western: claims arise from affidavit (right to petition) and marketplace communications (free speech). | Court: TCPA applies to claims that relate to the affidavit and marketplace communications; mixed protected/unprotected conduct requires segregation. |
| Commercial-speech exemption under §27.010 | AEG: statements were commercial and thus fall within the exemption (so TCPA shouldn’t apply). | Western: statements addressed matters of public concern and competitive advantage, not mere transactional proposals. | Held: exemption applies to statements to Hansford and SBJ (actual/potential customers); exemption does not apply to statements to Old World, Lubriformance, Chevron, and CITGO. |
| Antitrust / conspiracy (TEX BUS & COM §15.05) | AEG: circumstantial evidence (solicitations, disparagement, subsequent refusals) suffices to infer agreement to boycott. | Western: no meeting-of-minds; suppliers simply declined after hearing disparagements. | Held: AEG failed to present clear and specific evidence of an agreement/concerted action; antitrust and conspiracy claims dismissed. |
| Lanham Act false-advertising claim | AEG: false statements about AEG’s products satisfy Lanham Act elements. | Western: statements were not commercial advertisements intended to influence consumers to buy defendant’s goods. | Held: AEG failed to show the statements were a "commercial advertisement"; Lanham claim dismissed. |
| Defamation (by recipient) | AEG: statements to Chevron, CITGO, Old World, Lubriformance were false and caused harm. | Western: affidavit statements to Chevron are privileged; attribution to CITGO unproven; Old World statement true in context; Lubriformance causation uncertain. | Held: Chevron affidavit privileged — dismissed; CITGO attribution insufficient — dismissed; Old World statement substantially true — no defamation; Lubriformance statements sustain a defamation per se claim (survives). |
| Business disparagement & tortious interference | AEG: disparagement and interference caused pecuniary loss and loss of prospective business. | Western: lack of causation, damages, and independent tortious conduct; multiple valid non-defamatory reasons for suppliers’ decisions. | Held: Claims dismissed to the extent they are based on statements to Chevron, CITGO, Old World; claims based on Lubriformance also dismissed for business disparagement and interference (no clear causation/damages). Only the defamation theory tied to Lubriformance survived TCPA dismissal. |
Key Cases Cited
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (pleadings control initial TCPA applicability; holistic review of pleadings)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (holistic nature of pleading analysis under TCPA)
- Beving v. Beadles, 563 S.W.3d 399 (Tex. App.—Fort Worth 2018) (statements in litigation implicate right to petition under TCPA)
- Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019) (communications about goods/services can be "matter of public concern" under TCPA)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (commercial-speech exemption elements and burden)
- James v. Brown, 637 S.W.2d 914 (Tex. 1982) (absolute privilege for statements made in judicial proceedings)
- Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014) (defamation per se presumes reputational harm; caution on inferring causation from circumstantial evidence)
- Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909 (Tex. 2013) (elements for interference with prospective business relations)
- Nat. Gas Pipeline Co. v. Justiss, 397 S.W.3d 150 (Tex. 2012) (business lost-profits proof requires objective facts and reasonable certainty)