Two competitor You-Tubers who give investment advice entered into confidential discussions about “develop[ing] a synergistic business together.” One side “abruptly” broke off talks. Soon thereafter the other side started hearing complaints from its third-party brokers and trading platforms “about his business and personal affairs” who consequently “cease[d] all business with him and his company.” The Tuber sued, alleging statutory and common law misappropriation of trade secrets, tortious interference with existing and prospective contracts, and fraud. The defendant Tuber filed motions to dismiss under the Texas Citizens Participation Act (TCPA) and Rule 91a, TCRP. The trial court denied the TCPA motion, granted the Rule 91a motion as to the common law misappropriation claim, gave plaintiff leave to replead his fraud claim, and otherwise denied the Rule 91a motion. Defendant appealed the denial of his TCPA motion.
These are the facts of Day Trader Paradise, LLC and John Matthew Cowart v. Vincent Marchi and EGI Ecclesiastes Global Investment Technologies, LLC (No. 05-22-01061-CV; filed April 17, 2023). The Dallas Court of Appeals affirmed, rejecting defendant’s argument that plaintiff’s common law fraud claim, which is exempted from the application of the TCPA was simply a defamation claim by another name. After finding that plaintiff’s argument for the application of the fraud exemption was not waived, the court held that the plaintiff’s claims were clearly “premised on [defendant] fraudulently entering into business discussions to obtain information it then used to harm [plaintiff].” Plaintiff thus met its burden to establish the application of the exemption.
