Just before Christmas 2018 the Texas Supreme Court issued S & S Emergency Training Sols., Inc. v. Elliott on December 21, 2018.  Almost a year to the day, we get the 20th substantive opinion on the Texas Anti-Slapp with the issuance of Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, No. 18-0656, 2019 WL 6971659 (Tex. Dec. 20, 2019).

Considering every day I get an update from Westlaw on five legal issues I’m following, not sure how I missed this one.  But better late than never.

Creative Oil breaks new ground and represents a roll-back from the expansive interpretation of Right of Free Speech presented in Coleman II.  There are three big takeaways from this opinion, including a clear tip as to how the Texas Supreme Court intends to interpret the Sept. 2019 Anti-Slapp.

First, the Court interpreted and applied the modifier of “in the marketplace” to limit the application of Right of Free Speech cases concerning a “good, product, or service” that are little more than private business disputes.

Of course, nearly all contracts involve “a good, product, or service.” But the statute refers to a “good, product, or service in the marketplace.” TEX. CIV. PRAC. & REM. CODE § 27.001(7)(E) (emphasis added). Section 27.001(7)(E) does not encompass every “good, product, or service,” but only those “in the marketplace.” Id. If possible, the words “in the marketplace” must not be treated as surplusage.  . . . Black’s Law defines “marketplace” as “[t]he business environment in which goods and services are sold in competition with other suppliers.” Marketplace, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). The “in the marketplace” modifier suggests that the communication about goods or services must have some relevance to a wider audience of potential buyers or sellers in the marketplace, as opposed to communications of relevance only to the parties to a particular transaction. . . . The record is 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. On the contrary, the alleged communications were made to two private parties concerning modest production at a single well.6 These communications, with a limited business audience concerning a private contract dispute, do not relate to a matter of public concern under the TCPA.

Second, we get a clear preview that with regard to the new definition in 27.001(7)(B), a private dispute has a high hurdle to qualify as an “interest to the community.”

Compare Sept. 2019 Texas Anti-Slapp

27.001(7)  “Matter of public concern” means a statement or activity regarding:

(A)  a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity;

(B)  a matter of political, social, or other interest to the community; or

(C)  a subject of concern to the public.

 With Creative Oil

Thus, when construing the TCPA’s list of the kinds of things meant by “matter of public concern,” we should not ignore the common meaning of the words being defined. The phrase “matter of public concern” commonly refers to matters “of political, social, or other concern to the community,” as opposed to purely private matters. Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (citations omitted). In seeking to understand the meaning of “good, product, or service in the marketplace,” we must not ignore altogether this ordinary meaning of “matter of public concern.”

 This raises the question of how will trial courts and COAs interpret a “subject of concern to the public?”  If (B) does not cover private disputes it is hard to envision (C) also covering private disputes. 

But then again, check out fn 7 in Creative Oil and the Court’s acknowledgement that a private defamation claim can implicate public health and safety issues.  So there is still gray area for parties to debate about depending on the fact pattern.

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