The Waco Court of Appeals has held that an employer’s lawsuit against a former employee for misappropriation of trade secrets, tortious interference with continuing and prospective business relations, and conversion falls within the “commercial speech” exemption of the Texas Citizens Participation Act (Ch. 27, CPRC) and affirmed the trial court’s denial of the employee’s TCPA motion to dismiss. The case was decided under the TCPA as it existed prior to the 2019 amendments.
Jean Herzog v. Waco Primary Care, P.A. (No. 10-18-00089-CV) stemmed from the termination of an employment relationship between Herzog, a nurse practitioner, and Waco Primary Care (WPC). After a year or so of working for WPC, Herzog gave notice of her intention to leave for another practice. During the interim between her notice and move, she informed patients she saw in the office of the change and invited them to switch to the new practice if they chose. For patients she did not see in the office during that time, she used patient records to access their addresses and sent them letters to the same effect. WPC filed suit against Herzog, alleging misappropriation of office files, tortious interference with WPC’s existing and prospective clients, and conversion of existing business. Herzog moved to dismiss under the TCPA, alleging that WPC’s lawsuit was a communication based upon her exercise of speech and association rights. WPC responded that its lawsuit fell within the commercial speech exemption of the TCPA (§27.010(b), CPRC). The trial court denied the motion, and Herzog appealed.
The court of appeals affirmed, finding that WPC carried its burden of showing that the commercial speech exemption applied. Basing its analysis on SCOTX’s decision in Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018), the court found that Herzog’s communications to her patients satisfied the four-prong Castleman test: (1) Herzog was primarily engaged in the business of selling or leasing goods or services; (2) Herzog made statements or engaged in the conduct on which the claim is based in her capacity as a seller or lessor of those goods and services; (3) the statements or conduct arose out of a commercial transaction involving the kind of goods or services WPC provides; and (4) the intended audience of the statements or conduct was actual or potential customers WPC provides. The court found that Herzog’s affidavits contained sufficient evidence to prove up the application of the exemption, showing “at a minimum, Herzog’s communications encouraged patients to seek medical services from her at her new practice rather than from WPC.” The court further rejected Herzog’s argument that the “fiduciary” nature of her relationship with her patients shielded her from the commercial speech exemption.