The TCPA Is a Powerful Tool, But Not All-Powerful

Originally published by Richard Smith.

The Texas Citizens Participation Act is becoming a powerful tool for disposing of certain types of lawsuits at an early stage of litigation, but an opinion from the Dallas Court of Appeals recognizes two important limits to the TCPA’s scope. Travis Coleman sued his former employer, ExxonMobil Pipeline, and two former supervisors for defamation and related claims. Coleman contended that the defendants had lied about his alleged failure to measure the level of fluid in a chemical holding tank, which led to his dismissal. The trial court denied Exxon’s motion to dismiss under the TCPA, and the Court of Appeals affirmed.

The Court of Appeals first relied on the Texas Supreme Court’s recent holding in Lippincott v. Whisenhunt (4/25/15) to reject Coleman’s argument that the TCPA did not apply because the speech was purely private. Nevertheless, the Court held that the allegedly defamatory statements did not involve a “matter of public concern” because their contents related to Coleman’s private job performance, not health, safety, the environment, or Exxon’s economic interests. The fact that the potential consequences of Coleman’s alleged failure to check the tank included health, safety, environmental, and economic concerns was not enough to transform the statements into a matter of public concern. The Court also rejected Exxon’s argument that the TCPA applied on free association grounds, holding that communications made in the context of free association had to involve some sort of public or citizens’ participation to fall under the TCPA.

ExxonMobil Pipeline Co. v. Coleman, No. 05-14-00188-CV

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