Statute

Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. 

Case

Stroud v. Clearview Energy, 05-18-00729-CV (Tex. App. – Dallas May 1, 2019 no p. h.) (mem. op.).

A Texas anti-SLAPP motion to dismiss based on “a matter of public concern” must contain evidence of that concern

Stroud, an employee of Clearview, executed contracts with Opsolve which she was not authorized to do. Contracts had to be approved by the CEO, the Legal Department and the chief financial officer which were not done.  Clearview alleged that Opsolve provided no goods or services and that Stroud received kickbacks from them. During the final days of her employment, she sent an email to the CEO outlining what she thought were problems with Clearview. As a result of that email, Clearview replied that they accepted her resignation.

When Opsolve sent a demand letter to Clearview demanding money, Clearview filed suit against Stroud and Opsolve. As to Stroud, their complaint was  beach of contract, fraud, breach of fiduciary duty and breach of a non-compete agreement.

Stroud filed a motion to dismiss under the Texas anti-SLAPP, TCPA, claiming that the suit was based on, related to or  in response to her right of free speech concerning a matter of public concern (the email). She alleged that the delivery of electricity was a matter of public concern. The trial court denied the motion and Stroud appealed.

The Texas Anti-SLAPP law or TCPA has a three step process. In step one, the movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003 (a).

The parties do not dispute that Clearview’s lawsuit is a “legal action” or that Stroud’s e-mail was a “communication.” The parties disagree on whether Stroud’s e-mail contained a “matter of public concern” and whether Clearview’s  lawsuit was based on, related to, or in response to a matter of public concern raised in the e-mail. 

Once the movant has shown that the nonmovant’s legal action is covered by the act, the burden shifts to the nonmovant to demonstrate a prima facie case for each essential element of a cause of action by “clear and specific evidence.” §27.005 (c).

Because the court ruled that the element of a “matter of public concern” was missing, Clearview did not have to prove every essential element of their cause of action.

If the nonmovant meets his burden of establishing a prima facie case for each essential element of a cause of action by “clear and specific evidence”, the court must still grant the motion to dismiss if the movant establishes a valid defense by a “preponderance of evidence”. §27.005 (d).

The court never reached the third step because Stroud failed to carry her burden under Step-one.

The record has to show how the actions relate to a matter of public concern

The court, again and again, made note that there was nothing in the record tying any of Stroud’s actions to a matter of public concern:

However, nothing in the e-mail or the rest of the record shows how any of Stroud’s complaints concerned matters that would affect Clearview’s ability to deliver electricity.

The e-mail states that Clearview’s failure to pay “the Nexxa invoices” “will throw us out of regulatory compliance.” However, the record does not show what service or product Nexxa provided or how the failure to pay those invoices would affect Clearview’s ability to deliver electricity or any other good, product, or service in the marketplace. Neither the e-mail nor the record shows what regulation would be violated by Clearview’s failure to pay Nexxa or how enforcement of that regulation would affect Clearview’s ability to deliver electricity.

Stroud also argued her e-mail stated Clearview failed to pay “vendors necessary to maintain Clearview’s . . . promises to consumers.” Nothing in her e-mail or elsewhere in the record shows any unpaid vendors were necessary to fulfillment of Clearview’s “promises to consumers.” Furthermore, nothing in the e-mail or the record shows the nature of these promises or how they related to the provision of electricity or any other matter of public concern.

The “Statement of Facts” section of Stroud’s brief states, “The Stroud Letter likewise detailed concerns raised in a legal complaint from the Pennsylvania Public Utility Commission and other issues related to Clearview’s failure to make good on promises related to certain platforms offered to consumers.” However, Stroud does not mention the PUC complaint in the argument section of her brief. Moreover, although her e-mail mentioned the Pennsylvania PUC complaint, the e-mail did not “detail[] legal concerns raised” in the complaint. The e-mail does not link the discussion about platforms to the complaint. The argument section of Stroud’s brief does not mention the platforms or explain how the discussion of the platforms constituted a matter of public concern.

Furthermore, Stroud does not explain how this “complaint” affected Clearview’s ability to deliver electricity or otherwise related to an issue of health or safety, environmental, economic, or community well-being, or a good, product, or service in the marketplace.