Affirmed and Memorandum Opinion filed April 15 , 2021

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00253

- CV

META PLANNING + DESIGN LLC; JUAN SERNA; CARLOS FRAGA; KENT MILSON; KATHRYN PARKER; JENNIFER CURTIS; RAMIRO PLATA, JR. , Appellant
V.
B GE, INC. , Appellee

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause No. 18

- DCV

- 257646

MEMORANDUM OPINION Appellant s Meta Pla nning + Design , LLC , Juan Serna , Carlos Fraga , Kent Milson , Kathryn Parker , Jennifer Curtis , an d Ramiro Plata, Jr. appeal the trial
court ’ s denial of their motion to dismiss under the Texas Citizens’ Participation Act, or “TCPA

. ” We affirm

. I. F ACTUAL AND P ROCEDURAL B ACKGROUND2 Plaintiff

- Appellee BGE , Inc. ( “ BGE ” ) is an engineering consulting firm

a ssisting clients with design , planning, and project management services for residential , commercial , and in dustrial d evelopments

. Defendants

- Appellants Juan Serna , Carlos Fraga , Kent Milson , Kathryn Parker , Jennifer Curtis , and Ramiro Plata, Jr. were a ll employee s of B GE in its Houston Region Planning Department, and together made up most of that department. According to BGE’s petition , Serna, Fraga, Milson, Parker, Curtis, and Plata ( “Fo rmer BGE Employees ”) began making preparations to compete with BGE by using and downloading BGE ’ s proprietary, confidential, and trade secret information ( “BGE I nformation ”) and ultimately left BGE and shared that information in furtherance of forming their own design p lanning firm , Defendant

Appellant Meta Planning + Des ign LLC ( “Meta ”)

. Upon learning of this scheme, BGE sued Meta and t h e Fo rmer BGE Employees (col lectively, the “Meta Parties ”) , assert ing claims that ( a ) the Meta Parties misappropriated trade secrets ; ( b ) t he Former BGE Employees breach e d their fiduciary dut ies t o BGE ( while Meta aided and abetted the same ) ; and ( c ) the Meta Parties tortiously interfered with existing and prospective business relations. BGE also sought and obtained a temporary restraining order to preven t t he Meta Parties ’ furth er use of t he BGE I nformation , and sought a temporary injunction to prevent the Meta Parties from disclosing BGE I nformation

. BGE ’ s pleadings and affidavits set out that (1) the Former BGE Employees violated provisions of their employment contract wh ich p rohibited d iscussin g, disclosing, or s haring BGE I nformation , ( 2 ) the Former BGE Employees , while still working at BGE, copied and downloaded allegedly proprietary information which BGE describes as “client information, project information, planning a nd de sign method s and pr ocess developed by BGE [ a nd ]

. . . plat drawings developed3 by BGE”; ( 3 ) the Former BGE Employees created a new competing business (Meta Planning + Design); ( 4 ) the Former BGE Employees used the proprietary information to target BGE’s exist ing and pro spective clients, and for example used th e plat drawing to compete for bids; and ( 5 ) as a result BGE lost out on jobs it would have otherwise secured.
The Meta Parties moved to dismiss under the TCPA, targeting all of BGE ’ s claims and re quest s for injun ctive re lief

. They argued that BGE ’s lawsuit was based on, related to, or in response to the Meta Parties exercise of their right of free speech or o f their right of association. BGE responded , arguing that its breach of fiduciary duty cl a ims fell outsid e the sc ope of the TCPA , that its trade

- secret misappropriation and tortious interference claim s were ex empt from the TCPA as commercial speech pursuant to Section 27.010(b) , and that even if its claims were

s ubject to the TCPA , by virtue a llega tions pled and affi davits filed , it established a prima facie case as to all claims

. The trial court held a hearing on the motion and d enied the motion without stating its reason

. The Meta Parties appeal ed.

I I. I SSUES AND A NALYSIS On appeal, the Me ta Pa rties compl ain that the trial court erred in denying their motion to dismiss because (1) the y satisfied their burden to demonstrate that the TCPA applies to BGE ’ s claims and request for injunct ive relie f , (2) BGE failed to show the commercial speech exempt ion a pp lies , (3) an d BGE did not establish by “clear and specific evidence a prima facie case for each essential element” of its claims and request for injunctive relief

. Did the M eta Parties show by a preponderance of the evidence that the claims in ques tion w ere based on , related to, or in response to the ir exercise of the right of free speech or their exercise of the right of association ? The first st ep in the TCP A process requires the party filing a motion to4 dismiss to “show[] by a pre p onderance of the evidenc e” that the claims in question are “based on, relate[] to, or are in response to” the party’s exercise of the right of free speech, the right to petition, or the right of association. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 T ex. Gen. Laws 961, 962 (amended 2019 ) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (replacing “shows by a preponderance of the evidence” with “demonstrates ” , and remo ving “relates to”)). We review de novo whether the M eta Par t ie s satisfi ed their burd en to pr ove that the TCPA applies

. Dall. Morning News, Inc. v. Hall , 579 S.W.3d 370, 377 (Tex. 2019). Legal Standard for Analyzing the E xercise of the Right of Free Speech

. Under the TC PA , a com munication made i n con nection w ith a matter of public

con ce r n cons ti tutes an exercise of the right of free speech. Tex. Civ. Prac. & Rem. Code § 27.001(3 ) ; Fo rd v. Bland , No. 14

- 15

- 00828

- CV, 2016 WL 732330 9, at *2 (Tex. App.

— Houst on [14th Dist.] D ec. 15 , 2 016, no pet.) (me m. op.). A “co mmun i cation” inc ludes “the m a k ing o r submitting of a statement or document in any form or medium, i ncluding oral, visual, w ritt en , audiovisual, or electronic.” Tex. Ci v. Prac . & Rem. Code § 27.001(1)

. U n der the version of the T PCA applic ab le to today ’ s ca se , a “ matter of pub li c conce rn ” is d efined to in clude an issue related t o “ health or sa f ety , ” “ environmental , economic , or community well

being , ” and “ a good , product, or a service in the marke tp lace

. ” Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2 011 T ex. Gen. La ws 960, 961 ( amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann . § 27.001(7))

. The Texas Supreme Court has concluded that the p hrase ‘in the marketplace’ requires that “ communication about goods or services must have some rel e van c e to a wide r audience of potenti a l buyers or sellers in the marketplace, as opposed to communications of relevance only to the parties to a particular transaction.”5 Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 134 (Tex. 2019)

. “ A pri v ate contrac t dispute aff ecting o nly the fortunes of the private parties involved is simply not a ‘ matter of public concern ’ under any tenable understanding of those words. ” Id . at 137.

Le gal Standard for Analyzing the E xercise of the Right of Associat ion

. The exerci se of the rig ht of as sociation is defined under the TCPA as “a communication bet ween individuals who join together to collectively express , promote, pursue, or defend common in terests.” 27.00 1(2)

. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 T ex. Gen. Laws 960, 96 1 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann . § 27.001( 2 ))

. Up until three months ago, the word “ common ” as it appears in this pr o vision remained undefi ned by this court

. Republic Tavern & Music Hal l , LLC v. La urenzo's Midt own Mgmt ., LLC , 14

- 19

- 00731

- CV, 2020 WL 7626253, at *5 (Tex. App.

— Houston [14th Dist.] Dec. 22, 2020, no pet. h.)

. 1 But o ur c ourt like othe r courts

1 In Gaskamp , a c as e involving facts the Meta P arties refer to as “ identical ” to the facts of this
ca s e , the First Court o f Appeals dis cu ssed right

- of

- ass oci ation decisions in cases involving similar allegations and earmarked our decision in Abatecola , not ing that our co nclusion that such claims fe ll within the scope of the TCPA w as reached without an “in

- depth ” t rea tment of the p hrase “c ommon intere st ”

. Ga skamp v. WSP USA, Inc. , 596 S.W.3d 457, 476 (Tex. App.

— Houston [ 1st Dist.] 2020, pet. dism'd w.o.m.) (op. on reh'g en banc) , citing Abatecola v. 2 Savages Concrete Pumping, LLC , No. 14

- 17

- 00678

- CV, 2018 W L 311860 1 a t * 7 (Tex . App.

— Housto n [14th Dist .] June 26, 20 1 8, pet. denied)

. As it surveyed other jurisdictions , the F i rst Court of Appeals embraced the Fo rt Worth court of appeals ’ conclusion that as a threshold matter for analyzing such cases , the cour t must fir st resolve t h is que stion : W hat defini tion di d the le gislature intend to ascribe to the word “common” in the phrase “common interests ” ? See id

. at 473

- 74 , citin g Kawcak v. Antero Resources Corporation , 582 S.W.3d 566 (Tex. A pp.

— Fort Worth 2019, p e t. denie d)

. As indic ated by t he Fir st Court of Appeals , at t he time it addressed t hat question, we had not

. B ut by the time this court did reach that question ( later th e same year ) , we came to the same answer as our courthouse co ten ant : that the “ common ” interest is one rela ting to the pub lic at large

. Repu blic T avern & Music Hall, LL C
, 2020 WL 7626253, at *5

. For reasons explained here and in Republic Tavern & Music H all, LLC , our analysis of the freedom of association is no w guid ed as informed by the d efinitio n o f “common ” , wher eas prio r to this de velopme nt it was not. See e.g. , Ab atecola v. 2 Savages Concrete Pumping, LLC , 2018 WL 3118601 at * 7 ; see also, Reeves v. Harbor America Central, Inc ., --- S.W.3d

---- , 2020 WL 2026527 , ( Tex. App.

— Houston [14 t h Dist.] 20 20 , pet. filed )

. Desp ite any in consi stency against6 that have made the deep

- dive into the statutory meaning of the word “ common ” , have concluded i t mean s “ of o r relati ng to a community at large: public. ” See id .;

s ee also TSA

- Tex. Surgical Associates, L.L.P. v. Vargas , 14

- 19

- 00135

- CV, 2021 WL 729862, at *2 (Tex. App.

— Hou ston [14th Dist.] Feb. 25, 2021, no pet. h.) (citing cases)

. Were Thes e C o mmunications Related to a Ma tter of Public Concern?
The only communications at issue i n B GE ’ s claims against the Meta Parties

are t he Former BGE Employees ’ acts of downlo ading trade secrets and pr oprietary information while wo rking for BGE , the implici t c o mmunications made by the For mer B GE employ ees in the formation of a competitive business , and communications made to prospective customers in the form of competitive bids for design planning services allegedly in violation of obli gations imp osed by the Fo r mer BGE ’ s em ployee ’ s empl oym ent a gree ments with BGE

. Since the parties filed their brief s , the Texas courts have been prolific in addressing “ matter of public concern ” ( and various other nooks and crannies of the
pre
- 2019 amendment TCP A) ; but two cases are particularly instruc t i ve

. Fir st, the Supreme C ourt ’ s decision in Creative Oi l & Gas, LLC v. Lona Hills Ranch, LLC significantly limited the scope of what qualifies as “ a matter of public concern. ” 591 S.W.3d at 137 ( “not every communication related somehow to one of the broa d ca tegories se t out in section 27.001(7) always regards a matter of public concern.” )

. T he court consider ed w hether the oil

- and

- gas
- lease lessee ’ s counterclaim against a lessor , which were premised on the allegation that the lessor

our prior holdings , the decision to ana lyze the issue in the same manner as the court we shar e jurisdiction is a benefi t of uniformity and predictability to the local legal community

. See Roun d Table Physicians Gr oup , PLLC v. Ki lgore , 607 S .W.3d 8 78 (2020) (Frost, J

. , concurr ing and dissenting )

.7 “ had falsely t old thir d

- pa rty purchasers of production from the lease that the lease was expired and that payments on the purchases should stop , ” qualified as “ a matter of public concern. ” Id . at 130. Despite these allegations regarding communications to third part y pu rcha se rs , th e court foun d the record “ devoid of allegations or evidence that the dispute had any relevance to the broader marketplace or otherwise could reasonably be characterized as involving public

concerns

. ” Id . at 13 6. The c ourt explained such communi ca tions, “ wi th a limited business audience concerning a private contract dispute, do not relate to a matter of public concern under the TCP A. ” Id . at 13 6. The c ourt further explained that while “ private communications are sometimes covered by the TCP A ” , such
pa r ticu lar situations involved “ environmental, health, or sa fety concerns that had public relevance beyond the pecuniary interests of the private parties involved

. ” Id.
The second case , Gaskamp v. WSP USA, Inc. is a case the parties to our case have appropr iate ly id entified as factual similar; it involv es similar ly situated parties , claims , and allegations , including allegations by a company against its former employees that its former emp loyees used the company ’ s proprietary information to submi t a bi d s “ of f th e books ” to a third party and which t he former employees continued to work on after leaving the company. Relying on Creative Oil & Gas , our local sister court sitting en banc held in Gaskamp that communications mad e by the former employee s in solicit ing and procuring business from a third party did not constitute an exercise of the employees ’ free

speech rights because these communications did not have any “relevance to a public audience of buyers or sel lers but instead were limited to ‘th e pe cuniary inte rests of the private parties involved.’ ” Gaskamp , 596 S.W.3d at 479 (quoting Creative Oil & Gas , 591 S.W.3d at 136 ).8 Following Creative Oil and Gaskam p , we conclude that none of the communications allege by BGE involve issue s based on , rel ated t o , or i n re sponse
to “ health or sa f ety , ” “ environmental , economic , or community well

- being

. ” Moreover, the Meta Parties fa iled to sho w t hat any of th e alleged communications about design planning services were relevant to a wider audience of potenti a l bu yers or sell ers in the marketplace

. The communications and conduct at issue are only relevant to the limited group comprisin g th e Me t a Parties , BGE , and the group of BGE

- clients and prospective BGE clients to whom BGE alleged that Meta Parties had tar ge ted and sub mitt ed or planned to submit com peting bi ds . Like the third

- party purchasers in Creative Oil and the bid recipient in Gaskamp , the bid recipients who do uble as BGE customer s in this case comprise of a limited , exclusive customer audience ; not a broa der mark etpl ace. None of the communications alleged , including these discrete bid s which were allegedly aided by proprietary d esign standards were releva nt to a broader marketplace of pot ential buyers or sellers, and such communications, with t heir limite d busin e ss a udience concerning a private dispute, do not relate to a matter of public concern under the TCPA

. See Creative Oil & Gas, LLC , 591 S.W.3d at 136 ; Gaskamp , 596 S.W.3d at 47 8

- 7 9

. W as This the Exerci s e of As sociation for a Common Inte rest?
The M eta Part ies alleged exercise of association did not re late to the community at large or the general public , but instead relate to an alleged breach of obligations derived from a p rivate employment rel ationship b etween private part i es

. Se e TSA

- Te x. Sur gical Associa tes, L.L.P. v. Vargas , 14

- 19

- 00135

- CV, 2021 WL 729862, at * 3 (Tex. App.

— Hou ston [14th Dist.] Feb. 25, 2021, no pet. h.) (citing cases)

. Under the court ’ s newly adopted def inition of the word

“ common ” we agree that the forma tion o f the ne w busi ness venture is i n sufficient9 to sh ow a common in terest , i .e., it is not related to a community at large

. Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457, 476 (Tex. App.

— Houston [ 1st Dist.] 2020, pet. dism'd w.o .m.) (op. o n reh'g en banc) . L ikewis e, t he c onduct and communic atio ns, involved in allegedl y misappropriating BGE information and trade secrets and related torts benefitted only the Former Employees

. See id

. III. C ONCLUSION
Because t he Meta Parties failed to sh ow t hat the actions alle ged by B G E are based on, in re spo nse to, or related to appellants' exercise of the right to free speech or of association , we overrule their complaint to the trial court ’ s order den ying their motion to d ismiss , and accordingly affirm t h e trial court ’ s judg ment.

/s/ Randy Wils on Justice

P anel consis ts of Justic es Jewell , Spain , an d Wilson.