Texas Supreme Court- 2018 Year in Review (Part 3 of 5): Castleman, the Commercial Speech Exemption, and Abatecola.

Castleman v. Internet Money Limited, 546 S.W.3d 684 (Tex. 2018) is arguably the most important decision by the TSC on the Texas Anti-Slapp in 2018 because it provided clarity to the commercial speech exemption. 

 §27.010(b) states “This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

 

The TSC established a four factor test that negates a defendant’s ability to bring a Texas Anti-Slapp claim when: “(1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant's capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides.”

 Abatecola v. 2 Savages Concrete Pumping, LLC, 2018 WL 3118601 (Tex. App.—Houston [14th Dist.] June 26, 2018) (mem. op.) provides an example of the application of the commercial speech exemption.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=fe6d5ad2-48e2-49fc-af43-ffa3edb60983&coa=coa14&DT=Opinion&MediaID=ebcef764-829c-4e67-a867-167a106999d3

 In Abatecola, Defendants were accused of tortiously interfering with plaintiff’s customers.  The Houston COA determined that defendants’ statements to customers were about Defendants’ services (i.e. “buy my services”) to potential customers of such services.  Thus, the exemption applied and Defendants could not use the Texas Anti-Slapp against that particular tortious interference claim.

 The Defendants are trying to appeal but (as of this post) have not filed their brief.  If the Abatecola decision holds, this type tortious interference claim will have a safe harbor from the Texas Anti-Slapp.

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Happy Texas-Anti-Slapp Holidays - Thirteen Opinions Issued in December 2018!

Happy Holidays from the Texas Courts of Appeals, as thirteen decisions were issued touching on Anti-Slapp issues, including one from the Texas Supreme Court, S & S Emergency Training Sols., Inc. v. Elliott, 17-0628, 2018 WL 6711322 (Tex. Dec. 21, 2018).

 This should give you an idea of how prolific Anti-Slapp fights are becoming in Texas.

Watch for more posts on S&S and other opinions issued in December.

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