Houston’s First District Court of Appeals reversed a trial court’s dismissal of a misappropriation of trade secrets claim based on the Texas’s anti-SLAPP law the Texas Citizens Participation (TCPA) because both the right of association and the right of free speech require some showing of a public good. Nat’l Signs, Inc. v. Graff, 01-18-00662-CV, 2020 WL 2026321 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.).
The plaintiff in Graff National Signs manufactured custom signs for commercial enterprises. Graff, the defendant, worked for National Signs for nearly twenty years, including seven years as Vice President of Operations. Graff signed an employment agreement with National Signs in 2008 that defined confidential information, restricted Graff’s ability to disclose confidential information, and prevented Graff from competing with National Signs under certain conditions. Nevertheless, Graff left National Signs in August 2017 and joined Al Ross Sign Group, a new company formed by National Signs’ original founder.
In September 2017, National Signs sued Graff seeking a temporary injunction and declaratory judgment, asserting, among other claims, misappropriation of confidential information and violation of the Texas Uniform Trade Secrets Act (TUTSA). The trial court dismissed all of National Signs’ claims pursuant to the previous version of the TCPA, and National Signs appealed.
The appellate court addressed only National Signs’ second issue on appeal, which related to the dismissal under the TCPA. Specifically, the court examined both of Graff’s claims that the suit related to his right of association and his right of free speech. Ultimately, the court determined that the communications between Graff and Al Ross Sign Group were not protected under the TCPA as an exercise of either right, and consequently, reversed the trial court’s decision.
Regarding the right of association, the court determined that the exercise of this right required some expression, promotion, or defense of common interests. Additionally, relying heavily on its prior decision in Gaskamp v. WSP USA, Inc., the court further determined that a common interest must serve the public or community at large in some way. Therefore, Graff did not meet his burden because he did not allege any public or community interest.
Regarding the right of free speech, the court determined that the exercise of this right must be made in connection with a matter of public concern such: (1) as health and safety; (2) environmental, economic, or community well-being; (3) the government, a public official, or public figure; or (4) a good, product, or service in the marketplace. Graff relied on the fourth option, but the court, again relying on Gaskamp, found that the marketplace modifier must have “some relevance to a public audience of potential buyers or sellers.” Similarly, Graff did not meet his burden here because the internal communications between Graff and his coworkers at Al Ross Sign Group had no public relevance.
Special thanks to Kyle Markwardt for his assistance with this blog post.