A Texas appellate court recently affirmed the principle that state free speech rights don’t provide immunity for trade secret misappropriation. Collaborative Imaging v. Zotec Partners. Zotec Partners provides revenue cycle and practice management services to healthcare providers. Dhruva Chopra worked at Zotec as a client service manager. In 2018, Chopra resigned and began working with Texas Radiology Associates, LLP (which had been a Zotec client) on a competing business. Chopra allegedly had knowledge of Zotec trade secrets involving, among other things, Zotec’s technology platform and software, billing, clients, and business processes.

After Zotec filed suit, Chopra and the other defendant moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing that the lawsuit was based on, related to, or in response to the exercise of the right of free speech, right of association, or right to petition. For free speech, there also must be a communication in connection with a “matter of public concern.” Affirming the denial of the motion, the court of appeals explained that not every communication that relates in any way to something the public might care about qualifies as protectible speech under the TCPA. Although the alleged communications related to government medical programs and collection agencies, the essence of the communications related to commercial competition between companies. To be protected, the speech must be about more than the speaker’s personal pecuniary interest. The court similarly rejected an argument that the lawsuit was in response to the defendants’ right of association, noting that it would be “illogical” if a party could avoid a lawsuit simply because it wants to associate with others in an alleged conspiracy to misappropriate confidential information.

While free speech issues can sometimes intersect with intellectual property litigation, a free speech argument is far from a “get out of jail free” card.