Chapter § 10-3 Texas Citizens' Participation ACT (TCPA)

• Jurisdiction: United States

10-3 Texas Citizens' Participation ACT (TCPA)

An emerging and troubling trend in non-compete litigation is the TCPA. The law is codified in Chapter 27 of the Civil Practice and Remedies Code and seems innocent on its face: citizens are protected from retaliatory lawsuits that seek to silence or intimidate them on matters of public concern. But the statute is broadly worded and is being broadly applied.

Texas courts' brief history of applying the broadly worded TCPA has not limited application of the Act's protection to weighty issues of great public concern. The dismissal mechanism of the statute has been applied in cases for fraud and barratry, a suit for contamination of a water well, a dispute between neighbors over a fence, defamation claims arising from an employment dispute, a snarl of competing claims arising from discussions among horse breeders on social media, and a host of other claims.

• Long Canyon Phase II & III Homeowners Ass'n Inc. v. Cashion, 517 S.W.3d 212, 216-17 (Tex. App.—Austin 2017).

Not surprisingly, it is also being applied in the noncompete context. Recall that the law protects retaliation not just for speech but also for freedom of association. So, when an employee with a noncompete leaves employment at Employer A to start employment at Employer Z (a competitor), there naturally must be verbal discussions about the new association. If a lawsuit is filed by Employer A against Employer Z based on those discussions and association decisions, it falls within the orbit of the TCPA and is subject to dismissal on those grounds.

• Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601 (Tex. App.—Houston [14th Dist.]

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