### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41243

NCDR, L.L.C.; DENTISTRY OF BROWNSVILLE, P.C., doing business as Kool Smiles; KS2 TX, P.C., Plaintiffs–Appellees

v. MAUZE & BAGBY, P.L.L.C.; GEORGE WATTS MAUZE, II; JAMES THOMAS BAGBY, III, Defendants–Appellants

Appeal from the United States District Court for the Southern District of Texas

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges. EDWARD C. PRADO, Circuit Judge: I. INTRODUCTION Defendant–Appellant M&B 1 , a T exas law firm, engaged in an advertising campaign to solicit former dental p a tients from Kool Smiles 2 dental clinics as potential clients. M&B appeals the district court’s denial of i t s Texas “antiU n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 11, 2014 Ly l e W . Cay ce Clerk

1 The D ef

end ants –Ap pella nt s c o n s is t of tw o Texas law yers ( G eorge Watts M auzé II and Jam es Thom as Bagby III) and their law f irm (M auzé & Bagby, P. L. L. C. )

. They are collectively ref erredto as “M & B. ”

2 P laintif

f –Ap p ellees ow n d ental clinics in Tex a s a n d a r ound the country. They are N CD R, L. L

. C. ; Dentis try of Brow ns ville, P. C. d/b/ a Kool Sm iles ; and K S2 TX , P. C

. d/b/ a/ Kool Sm iles

. They are collectively ref erred to as “Kool Sm iles .” Case: 12-41243 Document: 00512556712 Page: 1 Date Filed: 03/11/2014No. 12-41243

SLAPP” motion to dismiss a claim brought against them by Plaintiff–Appellee Kool S m i l es. The district court determined that M &B’s speech fell within a commercial speech e xemption to T exas’s a nti-SLA P P statute—the Texas C iti z e n ’ s P articipation Act (“TCPA”). While M&B challenges th at d e t e r m i n ati o n and asks this C ourt to render judgment in its favor, Kool Smiles challenges this court’s jurisdiction a nd argues that the Texas statute at issue does not apply in federal court. II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background Kool Smiles runs a national chain o f d ental clinics that provide care primarily to economically disadvantaged children. M&B is a T exas law firm th at engaged in an adv e r tising campaign s oliciting former Kool S miles patients to represent. M & B contends that Kool Smiles has been the subject of multiple media reports and government investigations regarding allegations of Medicaid fraud a nd bad medical provision. As part of the campaign, M&B ran television, radio, and internet advertisements, and developed a websit e that strongly implied, or e ven a ccused, Kool Smiles of performing unnecessary, and a t times harmful, dental work on children to obtain government reimbursements. B. Procedural Background Based on M&B’s ads and website, Kool S miles b r o u ght causes of action under f e d e ral law for t r ademark i nfringement, false advertising, and cyberpiracy under the Lanham Act. Kool Smiles also brought s tate c l a ims for defamation, busin e ss disparagement, injury to business reputation, a nd trade name and service mark dissolution.

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M&B brought several motions to dismiss. O ne w as b rought pursuant to the TCPA. See Tex. Civ. Prac. & Rem. C ode Ann. §§ 2 7.001–27.011 (West 2011). The TCPA is an anti-SLAPP 3 statute that allows a claim t o be dismissed when the d efendant can show that the claim was brought to chill the exercise of First Amendment rights. Id

. § 27.003(a); see a lso infra Part I I.C. M&B also brought motions to dismiss pursuant to Federal R ule o f Civil Procedure (“FRCP”) 8(a) for failure to ple a d w ith sufficient p articularity and FRCP 12(b)(6) for failure to state a claim on which relief may be granted. The district court’s o r der c ontained four h oldings. First, the court held that the TCPA does not a p p l y t o Kool Smiles’s three federal c laims brought under the Lanham Act. Second, the court h eld that the T CPA does not protect M&B’s speech because its advertisements and website fall into the “commercial speech” excemption to the TCPA. Third, Kool Smiles’s pleadings were sufficient such that M&B’s FRCP 8(a) motion failed. Fourth, Kool Smiles stated a claim, such that M&B’s FRCP 12(b)(6) motion failed. M&B brought this appeal. M&B does n ot a ppeal the district court’s rulings on its motions to dismiss based on FRCP 8(a) or FRCP 12. Thus, M&B only seeks interlocutory r eview of the d enial of its T C PA m otion. A s to this TCPA a p p e a l, M&B does not appeal the district court’s first ruling regarding Kool Smiles’s f

ederal causes of action. Instead, M&B’s only argument on appeal is that the district c ourt e r r e d in concluding that M&B’s s peech fell into the “commercial speech” exemption such that the anti-SLAPP m o tion to dismiss was not available. However, Kool Smiles, in their brief, r aises other issues on appeal, discussed below.

3 SLAPP is an acronym f or “s trategic litigation agains t p ublic p articip ation. ”

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C. The Statute at Issue: The TCPA The purpose of the TCPA i s “t o encourage and safeguard the constitutional rights of p ersons to petition, speak f reely, a ssociate freely, and o therwise participate in government to the maximum extent permitted by law a nd, at the

same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. To achieve this , t h e T C PA provides a means for a defendant, early in the lawsuit, to seek dismissal of certain claims in the lawsuit. See id . § 27.003. If a legal a ction is based on, relates to, or is in response to a p arty’s exercise of the right of free speech, right to petition, or right of association, that party m ay file a motion to dismiss the legal action. Id

. § 27.003(a). The motion to dismiss generally m u s t b e f iled no later than sixty days after service of the lega l a c t ion, although the TCPA provides that a court can extend the filing deadline on a showing of good cause. Id . § 27.003(b). On the filing of a motion to di s miss pursuant to § 27.003(a), all discovery in the legal action is suspended until the court has r uled on the moti o n t o d i s m i ss, except as provided by § 27.006(b). Id

. § 27.003(c). Section 27.006(b) states, “[o]n a motion by a party

or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.” Id . § 27.006(b). Section 27.005, entitled “Ruling,” sets out the burden shifting scheme: (a) The court must rule on a motion u nder Section 27.003 not later than the 3 0th day following the date of the hearing on the motion. (b) Except as provided b y S ubsection (c), on the m otion of a p arty under Section 2 7.003, a court shall dismiss a legal action a gainst the moving party if the moving party shows by a p r eponderance of

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the evidence that the lega l a c t i o n i s based on, relates to, or i s in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.

Id

. § 27.005(a)–(b) (emphasis added). However, the motion to dismiss may not be granted “if the party bringing the legal a ction e stablishes b y clear and specific evidence a prima facie c ase for each essential element of the c laim in question.” Id . § 27.005(c).

“ In determining whether a l egal action s hould be dismissed under [ t h e TCPA] , the court shall consider the pleadings and supporting a nd opposing affidavits stating the facts on which the l i ability or d e fense is based.” I d

. § 27.006(a). The Section entitled “Appeal” provides: (a) If a court d oes not r u l e on a motion to dismiss under Section 27.003 in the time prescribed by S ection 27.005, t h e m o t ion is considered to have been denied by operation of law and the moving party may appeal. (b) An a p p e l l a t e court shall expedite an appeal or other writ, whether interlocutory or not, from a t rial court order on a motion to dismiss a legal action under Section 27.003 or from a t r i a l c ourt’s failure to rule o n that motion in the t i m e prescribed by Section 27.005. (c) An appeal or other writ under this section must b e f iled on or before the 60th day after the date the t rial court’s order is signed or the time prescribed by Section 27.005 expires, as applicable.

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Id . § 27.008. 4 III. DISCUSSION A. Jurisdiction Because the district court’s order denying the motion to dismiss was not

a final j u d gment r esolving all the issues of th e suit, we must f irst determine whether this court has jurisdiction. M&B invokes the c ollateral order doctrine as a basis for jurisdiction before this court. Kool Smiles argues that this court lacks jurisdict i o n o v er th is interlocutory appeal b ecause i t does not fall within the “indep e ndent, i mmunity-style right” that the collateral order doctrine recognizes as immediately appealable. We disagree. Where the district court’s o rder is not a f inal judgment ending the action, the collateral order doctrine can confer limited a ppellate ju r i s d i c t ion. Will v. Hallock , 546 U.S. 345, 349 (2006). The following three conditions must be met for a collateral order appeal: (1) the order must conclusively d e t e r m i n e the disputed question; (2) it must resolve an importan t i s s u e completely separate from the merits of the case; and (3) it must be e ffectively unreviewable on appeal from a final judgment. Id. In Henry v. Lake Charles Americ a n Press , 566 F.3d 164 (5th Cir. 2009), this Court analyzed a district court’s denial of a motion to dismiss pursuant to Louisiana’s anti-SLAPP statute, Article 971 , u n d e r th e m ai n r e quir ements of the collateral order doctrine: (1) conclusivity, (2) s e parability, and (3) unreviewability. 5 56 6 F

. 3d at 171–78. Before so doing, the court noted that

4 The legis lature am end ed s everal s ubs ections of the TCPA in 2013. The s tatu t e s as cited w ithin are f

rom the TCPA as ap p licable at the tim e of the s uit.

5 H enry als o treats the im p ortance of an is s ue as a f ourth, s ep arate requirem ent. 566 F. 3d at 178–79. How ever, it not clear w hether im p ortance is a f ourth requirem ent or is ins tead
w rap ped up in the s econd and third requirem ents

. See, e. g. , M oha w k Indus. , Inc. v . Ca rp enter , 6 Case: 12-41243 Document: 00512556712 Page: 6 Date Filed: 03/11/2014No. 12-41243

determining whether an o rder is appealable should b e done not on a case-by-case basis, but on a type-of-order-by-type-of-order ba s i s . Id

. at 1 73. “Thus, for our present purposes, we do not look to whether the order in th e c o n text of this particular c ase i s i mmediately appealable, but to w h e ther or d e rs denying motions brought unde r anti-SLAPP statutes s u ch as [Louisiana’s] satisfy the conditions of the collateral order doctrine.” Id

. The court ultimately held that “a district court’s denial of a m otion brought under an a nti-SLAPP statute such

as [Loui s i a n a’s] i s an immediately-appealable c o llateral order,” such that this Court had jurisdiction over the appeal. Id . at 181. Whether a denial of a motio n t o dismiss pursuant to the T CPA is immediately r eviewable under the c o ll a t e r a l o rder doctrine is an issue of first impression. Although Henry used broad language (“statutes such as Article 971 satisfy the conditions of the collateral order doctrine”), because Texas’s antiSLAPP s tatute is not identical to Louisiana’s, this Court conducts its own collateral order d octrine inquiry to determine w het h e r t h e d enial of an antiSLAPP motion to dismiss satisfies the three requirements of the collateral order doctrine. All three must be satisfied f or the Ccourt t o have jurisdiction. Below, the three requirements a re e v aluated a gainst the TCPA. Because we hold that the TCPA satisfies all three requirements, the c ollateral order doctrine supplies jurisdiction. 1. Does the district court’s order conclusively de t e rmine the disputed question?
T h e requirement that the district court’s order “conclusively determi n e ”

558 U

. S. 100, 107 ( 2009) ( sp ecif ying that the s econd cond ition requires im p ortant ques tions s ep arate f

rom the m erits and that the third requirem ent—review ability— cannot be ans w ered
w ithout m ak ing a jud gm ent about the im portance of the right that w ould be los t)

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the disputed question m eans that the order must be final as to o nly t h e one inquiry that the order determines. See Behrens v. Pelletier , 5 16 U.S. 299, 307–08 (1996) (“Whether or not a later summary judgment motion is granted, denial of

a motion to dismiss is conclusiv e a s to [the right to avoid the burden of litigation.]”). To be considered “conclusive,” it should b e “ u n l ikely that the district court will revisit the order.” Henry , 566 F .3d a t 174 (citing 1 5A Charles Alan Wr i ght, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3911, at 333 (2d ed. 1992)). Because the TCPA and Louisiana’s anti-SLAPP s tatute a re similar on this point, Henry ’s analysis on conclusivity applies with equal force h ere: “A district court’s denial o f [ a TCPA] motion is conclusive a s to w h e t her [the TCPA] mandates dismissal of the suit.

. . . If a trial court d e nies [a TCPA] motion, then the case proceeds as i t normally would. There is also no indication that a trial court would revisit [its earlier TCPA decision].” See Henry , 566 F

. 3 d a t 174. Thus, the district court’s order denying TCPA r elief is conclusive for purposes of the collateral order doctrine. 2

. Does the district court’s order resolve a n i mp o r t a n t i s s u e s e p a r a t e from the merits of the case?
In order for an issue to be immediately a ppealed, it must be separate from t h e m e r i t s of the case. I s sues are not s eparate “where they a re but steps towards [a] final judgment in which they will merge.” Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949). The question o f separability turns on whether the matter at issue “is significantly different from the f act-related legal issues that likely underlie the plaintiff’s claim on the merits.” Johnson v . Jones , 5 1 5 U.S. 304, 314 (1995). The Supreme Court has described “separate” is s u e s
as those that a re “conceptually distinct from the merits of the plaintiff’s claim.”
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Id

. (citations and internal quotation marks omitte d)

. For e xample, issues concerning immunity f r om suit are often separate from the underlying dispute in the litigation. Henry , 566 F.3d a t 1 74. C laims of qualified immunity are distinct from the merits o f a plaintiff’s c laim. Id

. (citing M itchell v. Forsyth , 472 U.S. 511, 527–28 (1985)). The Hen r y c o u r t conceded that the fact that determining an anti-SLAPP motion c a n require the district court t o assess the merits of the plaintiff’s claim weighed against a finding of separability. Id . at 175. It went on to hold, however, that because the anti-SLAPP statute had a distinct purpose from that of the underlying suit, separability was still present. Id. An anti-SLAPP motion “resolves a question separate from the merits in that it m e r ely finds that such merits m a y e x ist, without evaluating whether the plaintiff’s claim is to succeed.” Id

. (citing Batzel v. Smith , 333 F.3d 1018, 1025 (9th Cir. 2003) (internal quotation marks o mitted)). Further, although an antiSLAPP motion “looks t o the plaintiff’s probability of s uccess, the court decides it b efore proceeding to trial a nd t h e n moves o n. Immediate appellate review would thus determine an issue separate from any issues that remain before the district court.” Id . at 176. Separability u nder the TCPA is even c learer than separability under the Louisiana statute because Louisiana’s statute relies in part on a n analysis of the merits of the underlying claim. Louisiana’s statue specifies that i f the defendant meets his burden u nder the statute to show that t h e p l a intiff’s suit is in connection with the defendant’s right to free speech, the suit is dismissed unless the p l a i n t i f

f can establish “ a probability of success on the claim.” Henry , 556 F.3d at 170 (citing La. Code Civ. P r o c . An n. art. 971(A)(3)). By contrast, the TCPA does not require so s e a rching a review into the plaintiff’s prob a b i l i t y of

success. Instead, a p laintiff can defeat an a n t i-SLAPP motion if h e merely
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establishes a p rima facie case for each element of the claim. Tex. C iv. Prac. & Rem. Code Ann. § 2 7.005(c). Thus, the T CPA “has a purpose distinct from that of the underlying suit.” See Henry , 566 F.3d at 175. More direc t l y , “an antiSLAPP m otion ‘resolves a q u e s tion separate f rom the merits in that it merely finds that such merits m ay exist, without evaluating whether the p l a i ntiff’s claim will succeed.’” Id

. ( quoting Batzel , 333 F.3d at 1025). As explained in Henry , “‘[t]he purpose of an anti-SLAPP motion is to determine whethe r the defendant is b eing forced to defend against a m eritless claim,’ not to determine whether the defendant actually committed the rel e v a n t tort.” I d

. (quoting Batzel , 3 3 3 F .3d at 1025). In sum, the denial of a motion to dismiss brought pursuant to the TCPA resolves an important issue separate from the merits of the case, satisfying the collateral order doctrine’s separability requirement. 3. Is the district court’s order effectively u nrev i e w a b l e on appeal from a final judgment?
For the col l a t e r a l order doctrine to apply, the district c ourt’s order must be effectively unreviewable on appeal. “Perhaps the embodiment of unreviewability, then, is immunity from suit . . . .” Henry , 566 F .3d a t 177. In determining whether a right confers immunity, the critical inquiry is whether the s tatute provides a right not to s tand trial in the first place a nd to o therwise avoid the burdens of litigation. Mitchell v. Forsyth , 472 U.S. 511, 525–26 (1985). If an essential part of the d e f e n d a n t ’s c laim is the right t o avoid the burden of trial, then this f

inal requirement of the c ollateral order doctrine i s met because obtaining relief after trial is too late. Id . at 525. In Henry , the court held that the denial of a L ouisiana anti-SLAPP motion s a t i s f ied the u n reviewability requirement. 566 F.3d at 178. (“[The statute] thus provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute.”).
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The TCPA’s own provisions for interlocutory review are instructive. To be
sure, s tate l aw does not c ontrol the question of whether appellate review is available in federal court. See, e.g. , Englert v. MacDonnell , 551 F .3d 1099, 1107 (9th Cir. 2009) (“We e m p h a s i z e that our brief discussion of the availability of mandamus i n Oregon is not intended to suggest that Oregon law determines the availability of appellate r eview here. On the contrary, federal law is controlling

on this issue.”). However, numerous courts have recognized that the absence or presence of interlocutory statutory review mechanisms at the state l evel informs the question of w hether interlocutory a ppeal i s permissib l e in f ederal courts. See Liberty Synergistics Inc. v. Microflo Lt d

. , 7 1 8 F

. 3d 138, 151 (2d Cir. 2 013); DC Comics v. P

ac. Pictures Corp. , 706 F.3d 1009, 1015–16 (9th Cir. 2013); Metabolic Research, Inc. v. Ferrell , 693 F.3d 795, 800–01 (9th C i r . 2 0 12); Godin v. Schencks , 629 F.3d 79, 85 (1st Cir. 2010); Englert , 5 51 F.3d at 1 105–06; Batzel , 333 F

. 3 d a t 1 025. T his “is relevant not because state law d etermines the availability of appellate review [in federal court]—it does not—but r a t h e r because [it demonstrates whether] ‘lawmakers wanted to p rotect speakers from the trial itself rather than merely from liability.’” Godin , 629 F.3d at 8 5 (quoting Batzel , 333 F.3d at 1025). Thus, in Batzel , the c ourt found “instructive that C a lifornia’s anti-SLAPP statute provide[d] that a n o r d e r d enying an a nti-SLAPP motion may be a ppealed immediately.” 333 F.3d a t 1025. This, along w ith that statute’s legislative history, e videnced “that C alifornia lawmakers wanted to protect speakers from the trial itsel f r ather than merely from liability.” Id. The c ourt continued by explaining that, “[i]f the d efendan t w ere required to wait until final judgment to appeal the denial o f a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that
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the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Id. Accordingly, the court concluded that “a defendant’s rights under the anti-SLAPP statute are in the nature of immunity: They protect the defendant from the burdens o f trial, not merely from ultimate judgments of l iability.” Id. ; see also Godin , 629 F.3d a t 8 5 ( c i t i n g Englert , 551 F

. 3 d at 1107, with a pproval for the proposition that “whether [a] state antiSLAPP s tatute provides for interlocutory appeals is significant to w h ether interlocutory appeals should be permitted in federal courts”). Equally ins tructive on the importance of an expedited state appeal process is the analysis u ndertaken by the Engler t a n d Metabolic Research courts—apparently the only two federal courts to have concl u d e d that orders de n ying motions to dismiss anti-SLAPP suits are not i mmediately appealable under the collateral order doctrine. In Englert , t h e N i n th Circuit held that Oregon’s anti-SLAPP s t a t u t e “was n ot intended to provide a right n ot to be tried.” 551 F.3d at 1 105. In reaching this conclusion, the court reasoned that “the failure of the Oregon anti-SLAPP statute to provide for an a ppeal from an order denying a special motion to strike

. . . surely suggests that Oregon does not vie w such a remedy as necessary to protect the considerations underlying its anti-SLAPP statute.” Id. The court continued that: The failure of the Oregon Legislature to provide for a n appeal from the denial o f a special motion to s trike provides compelling evidence that, unlike their California counterparts, Oregon l awmakers did not want to protect speakers from the t r i al itself, as m uch as they wanted to h ave in p lace a process by which a nisi prius judge would promptly review the evidence underlying the d e famation c o mplaint to determine whether it had sufficient merit to go forward. Id. at 1106 (citation a nd internal quotations marks omitted)

. Englert emphasized that this distinguished the case from Batzel which h ad “held that,
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if a l e gislature provided an appeal unique to its anti-SLAPP statute

. . . it could be inferr e d t hat its purpose was to c onfer immunity from suit—an immunity which can only be vindicated by permitting an interlocutory appeal.” Id. at 1107. The Metabolic Research court reached th e same c onclusion in connection with N e vada’s anti-SLAPP statute. 693 F.3d at 801. T h ere, the c ourt held that its review of Nevada’s l aw led it to the conclusion that the statute’s “underlying values and p urpose [were] s atisfied without resort to an immediate appeal because, unlike California’s, it [did] not f urnish its citizens with immunity from trial.” Id

. Underlying this holding were the court’s observations that “ Nevada’s

a nti-SLAPP statute [did] n ot expressly p rovide for an immediate right to appeal,” and that the s tatute explicitly indicated that i ts purpose w as to provide defendants immunity from “ civil liability” as opposed to immunity f rom suit or trial. I d. a t 802. Accordingly, like the Englert court, the M e t a b o l i c R e search court concluded that a motion to dismis s under Nevada’s anti-SLAPP statute did not satisfy the third prong of the collateral order doctrine. With respect to the right to an immediate a ppeal , t h e T C PA is more similar to the statutes at issue in Batzel and Godin tha n t h ose c onsidered in Englert and Metabolic Research

. Section 27.008 of the T CPA provides that “[a]n appellate court shall expedite an appeal or o ther writ, whether interlocutory or not, from a trial c ourt order on a motion to dismiss a l egal a ction under Section 27.003 or from a trial court’s failure to r ule on that motion in the time p r escribed by Section 27.005.” Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b). Consistent with Batzel , Godin , Englert , and Metabolic Life , it a ppears that, by p r o v i d i n g this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, b u t r ather is the right to avoid trial in the first
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instance. Thus, “[b]ecause the a nti-SLAPP motion i s designed to protect the defendant f

r o m having to litigate m eritless cases aimed at chilling First Amendment expression, the district court’s denial of an a n t i

- SLAPP motion would effectively be unreviewable o n appeal from a final judgment.” Batzel , 333 F.3d at 1025. We also note that this c onclusion is consistent with the S upreme Court’s

m o st recent pronouncements on the collateral order doctrine. In W il l , f o r example, the Court explained that immediate review must a dvance “some
par t i c u lar value o f a high order.” 546 U.S. at 352. “That is, it i s not mere
a v o i d a n c e of a trial, but avoidance of a trial that w o uld imperil a substantial public interest, that c ounts when asking whether an order is effectively unreviewable if review is to be left until later.” Id. at 353 (citation and internal quotation marks omitted). As the Metabolic Rese a r c h court explained, “[a] legislatively approved immunity from trial, a s opposed to a mere c laim of a right not to be tried, is imbued with a significant public interest.” 693 F.3d at 800; see also Digital Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 879 (1994) (“When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of p rotection), there is little room for the judiciary to gainsay its ‘importance.’”). Likewise, “[i]t w ould b e difficult to find

a value of a ‘high[er] o rder’ than the constitutionally-prot e c ted rights to free speech and p etition that are at the heart of [ an ] anti-SLAPP s t atute. Such constitutional rights deserve particular solicitude within the framework of the collateral order doctrine.” DC Comics , 7 06 F .3d at 1015–16 ( second a l teration in original). Thus, w e hold that t h i s Court h as jurisdiction to interlocutorily consider the denial of a TCPA anti-SLAPP motion to dismiss.

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B. The TCPA’s Applicability in Federal Court Kool S miles a rgues o n appeal that the TCPA do e s not apply in federal court because it conflicts with both FRCP 12(d) and Federal Rule of Appel l ate Procedure (“FRAP”) 4. M&B argues that Kool Smiles di d not raise this specific argument bef

o r e t h e d istrict court and thus it is waived. We agree. As a general rule, “[a]n argument n ot raised before the district c o urt cannot be a sserted for the first time on appeal.” XL Speciality Ins. Co. V. Kiewit Offshore Servs., Ltd. 513 F.3d 146, 153 (5th Cir. 2008). Merely mentioning a legal issue in general terms is also i nsufficient; an argument must b e “raised to such a degree that the trial court may rule o n it.” Id

. (quotation marks and citation omitted). In the district court, in its r e sponse brief in opposition to M & B ’s motion to dismiss, Kool Smiles argued only that the TCPA c o nflicted with FRCP 8, 9, and 1 2

. T h e rules raised before the district court differ from those before us (FRCP 12(d) and FRAP 4). Before this court, Kool Smiles argues that FRCP 1 2(d) and FRAP 4 conflict with the TCPA

. This was not the question raised before the district court. To begin, we note that Kool Smiles never claimed in district court t h a t F RAP 4 conflicted with the TCPA. And while Kool Smiles raised FRCP 12, its discussion in district court was brief a nd only generally mentions motions to dismiss. Kool Smiles’ argument l argely focused on the pleading s tandards articu l at e d in FRCP 8 and 9

. Moreover, before the d i s t rict court, Kool Smiles did not specifically address FRCP 12(d). And yet, an analysis of whether a state l a w or rule conflicts with f

edera l p r o c edural rules requires a precise discussion of the specific federal rule at issue (as well as the allegedly conflicting state law or rule). Consequent l y , t h e district court’s o rder did not a ddress these rules. By
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not “rais[ing the issue] to such a degree that the trial court may rule on it,” Kool Smiles waived its FRCP 12(d) and FRAP 4 arguments. Because Kool Smiles waived its argument that the TCPA is a procedural law that conflicts with the Federal Rules of Civil Procedur e , we proceed assuming that it does not. Thus, w e continue by reviewi n g t h e di strict court’s determination t h a t t h e TCPA’s commercial s peech exemption applies to the speech underlying this lawsuit. C. Commercial Speech Exemption
The district court ruled that the TCPA does not protect M &B’s conduct because i ts speech falls within the “commercial speech” exemption to the TCPA. It found that M&B is primarily engaged in s elling l egal services to c lients and that the ads offered those services to potential customers (i.e., clients). M&B’s main argument is that the district court incorrectly interpreted the “commercial speech” exemption. Kool Smiles replies that the plain language of the statute exempts M&B’s speech from the protections offered by the TCPA. The “commercial speech” exemption to the TCPA, enacted in June 2011, states that the TCPA: [D]oes not a pply t o a legal action brought a gainst a person primarily engaged in the business of selling or leasing goods or services, if th e statement or c o n d u c t arises o ut of the sale or lease of goods, services, or a n insurance p rodu c t o r a commercial transaction in which the intended aud i e n c e i s an actual or potential buyer or customer.

Tex. Civ. P rac. & Rem. C ode Ann. § 27.01 0 (b ). This Court reviews a district court’s interpr e t a t i on of a state statute de novo, i nterpreting the s tate statute the way the state supreme court would, base d on p rior precedent, legislation, and relevant commentary. F.D.I.C. v. Shaid , 142 F.3d 2 60, 261 (5th Cir. 1998). 16 Case: 12-41243 Document: 00512556712 Page: 16 Date Filed: 03/11/2014No. 12-41243

“When construing a state s tatute absent explicit state-court guidance, we must attempt to predict state law, not to create or modify it.” Truong v. Bank of Am., N.A. , 717 F.3d 377, 381 (5th C ir. 2013) (citation and internal quotation marks omitted). The Supreme Court of Texas has not yet interpreted the TCPA, much less the “commercial speech” exe m p tion. When the parties filed their briefs, no Texas state court or federal court had interpreted the exemption. In 2013, four 6 intermediate T exas state court cases an a l y zing the exemption were released. Two address whether a defendant’s action “a r i s e s o u t o f the sale or lease of goods, services, or an i nsurance product.” T h e o t h e r two address w hether the intended audience is “an actual or potential buyer or customer.” The first, Newspaper Holdings, Inc. v . Crazy Hotel Assisted Living, Ltd. , No. 01-12-00581-CV, 2013 WL 5761051, at *1 (Tex. App.—Houston [ 1 s t Dist.] Oct. 2 4, 2013, n o pet.), i n v o l v e d a defamation c a se a rising from a series of articles in a newspaper. The articles reported regulatory compliance p roblems and investigations into the Crazy W ater R etirement H otel [“the Hotel”]—an assisted living facility—and its o wner. Id

. at *1– * 2

. S p e c i fically, the paper published a summary of its own article s tating, in part: “Month after month in 2010 complaints f

rom r esidents and e mployees at the Crazy Water Retirement Hotel kept city a nd state inspectors r e turning t o the b u i l d i n g , investigating complaints of unsafe conditions, building disrep a i r, failure to provide services and verbal abuse of residents.” Id . at *1.

6 A f if th cas e m entions the com m erc i a l s p eech exem p tion, but d oes not d is cus s it. Whi senhunt v . Li

p p i ncott , N o. 06- 13- 00051- CV, 2013 WL 553968, a t * 4 n . 5 (Tex. Ap p . — T exark ana Oct. 9, 2013, p et. f iled) ( “Becaus e we conclud e that the s tatute d oes n o t ap p ly, w e need not d ecid e w hether the com m ercial s p eech excep tion ap plies in this cas e. ”)

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The Hotel and its o wner brought seve r a l s t a t e l aw claims against the
newspaper and its s ourc e , alleging that the paper published defamatory and d a m aging statements. Id

. at *4. T he d efendants moved to dismiss the s u i t

u n d e r the TCPA. Id

. The trial c ourt denied the motion. Id

. at *5. T h e defendants appea l e d

. I d

. at *1. The Hotel contended that the paper was a
c o r p o r a tion primarily engaged in the business of s elling or leasing good s o r services, and as a result, the TCPA’s p r ovision for “comm e rc i al s p e ech” e xempted the paper from protection. Id . at *14. The court of a ppeals relied on precedent from the Cali f o r nia S upreme Court as a guide for the issue of first impression. Id

. (citing Si m p s on Strong–Tie Co., Inc. v. G ore , 230 P.3d 1117 (Cal. 2010)). C alifornia’s anti-SLAPP statute’s commercial s peech e xemption is similar, but not identical, to Texas’s. See id

. at *14. The Texas court borrowed th e four-prong analysis that the California Supreme Court devised. Id

. at *14–*15. To determine whether the exemption applies, courts should examine whether: (1) the cause of action is against a person p rimarily engaged in th e business of selling or leasing goods or services; (2) the c ause of a ction arises from a statement or c onduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services; (3) the s tatement or conduct was made either f or the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions i n, the person’s goods or services or in the course of delivering the person’s goods or services; and (4) the intended a udience for the statement or conduct [is an actual or potential buyer or customer].

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Id

. (alteration i n o riginal) (ci t i n g S i mpson , 230 P .3d a t 1129). The court also adopted S impson ’s determination that the statute put the b urden of pr ovi n g th at the commercial speech exemption applies on the party asserting it. Id . at *15. As t o the four prongs, the court stated it was undisputed that th e newspaper was in the business of r eporting community events. Id

. But, th e court w ent on, the stories t h e H o tel complained of did not arise out o f the sale of the goods and services that the newspaper sells—newspapers. Id

. T hus, the exemption did not apply to remove the TCPA’s protection from the newspaper. Id . at *16. 7 Because the Supreme Court of T e x a s has not yet interpreted the TCPA,

we must make an Erie guess. See T ruong , 717 F .3d at 381 (“When construing

a state statute absent explicit state-court guidance, we must attempt t o predict state l a w , not t o create or modify it.” (citation a nd internal quotation marks omitted)). Applying the Crazy Hotel analysis t o the p resent case, the language in M&B’s a ds and website arose directly f rom the solicitati on of the services it provides. The solicitation of a s ervice o r good is inherent in th e s a l e of the service. Otherwise, there would be a mostly arbitrary distinction created. For example, statements made while fixing a c u s t o m e r’s r oof would be exempted, but statements made while c onvincing a customer to hire the roofer to fix the r o of would not. As cited above, for the commercial speec h e x e m p ti o n t o apply, the intended audience must be an actual o r potential buyer or customer. The two other Texas intermediate s tate court cases addressing the commercial sp e ech e xemption

7 The s econd interm ed iate Texas s tate cas e ad d res s ing w hether a d ef end ant’s cond uct aros e from “s ale or leas e of good s , s ervices , or an ins urance p rod uct, ” Tex. Civ. Prac. & Rem

. Cod e Ann. § 27. 010(b) , d eterm ined that a letter to a p arole board f rom a client’s attorney d id not. Pena v . Perel , N o. 08- 12- 00275- CV, 2013 WL 4604261, at *3 (Tex. Ap p .— El Pas o Aug. 28, 2013, no p et. )

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dealt with t h e a udience provision. Both c oncerned businesses upset with the

r a t i n g s they received f rom the Better Business Bureau (“BBB”). Better Bus. B u r e a u of Metro. Dallas, Inc. v. BH DFW, Inc

. 402 S.W.3d 299, 303–04 (T e x . App.—Dallas 2013, pet. filed) ; Better Bus. Bureau of Metro. H ous., Inc. v. John Moore Servs., Inc ., No. 0 1–12–00990–CV, 2 0 1 3 W L 3716693, at *1–*2 (Tex. App.—Houston [1st Dist.] J uly 16, 2013, pet. filed). Bot h held that the commercial speech exemption did not apply—so the BBB’s s peech was protected by the TCPA—because the BBB’s intend e d audience was not an actual or potential b uyer or customer, as required by the exemption. BH DFW , 402 S.W.3d at 309; J

o h n M oore Servs., 2013 WL 3716693, at * 5; s e e also Tex. Civ. Prac. & Rem. Code Ann. § 2 7.010(b). The BBB s e l l s its accrediting s ervices to businesses; t h e actual and potential buyers or customers of the BBB’s membership service are the accredited b usinesses, not the general public. BH DFW, 402 S.W.2d at 302. B ecause the intended audience of the business review

was the general public, n ot a busin e s s c u stomer seeking a ccreditation, the commercial s peech e x e m p t i o n d i d n o t a pply. Id

. at 3 09. By contrast, M&B’s intended audience is its potential customers—potential legal clients. M&B argues th a t the C alifornia Supreme Court, interpreting a “similarlyworded exemption,” held that the exemption “did not exempt attorney advertisements from the protections of the Anti-SLAPP law.” But M&B neglects the f act that the California Supr eme Court’s holding rested on a clause in the California statute that is not present in T exas’ s a nti

- S LAP P s t at u t e. California’s statute’s commercial speech e x emption requires that the speech “consists of representations of fact about that person’s or a b usiness competitor’s b u s iness operations, goods, or services.” Cal. Civ. Proc. Code § 4 25.17(c)(1). The California high court held that an attorney advertisement soliciting clients was 20 Case: 12-41243 Document: 00512556712 Page: 20 Date Filed: 03/11/2014No. 12-41243

not s uch a representation of fact about h is business o p e r a t ions, goods, or services, and thus was n ot within the commercial speech exemption. Simpson , 230 P.3d at 1129. T exas’s commercial speech exemption contains no such limitation, making S impson ’s holdin g i n ap p li c ab l e . Ul ti m at e ly , w e c o n c l u d e that the Supreme Cou r t o f Texas would most likely h old that M&B’s ads and other client solicitation a r e e x e mpted from the TCPA’s protection because M&B’s speech arose from the sale of services where the intended audience was an actual or potential customer. SeeTex. Civ. Prac. & Rem. Code Ann. § 27.010(b). IV. CONCLUSION For the reasons above, we AFFIRM the district court.

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