AFFIRM; and Opinion Filed July 9, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01228-CV
CLEAN ENERGY AND CLEAN ENERGY FUELS CORPORATION, Appellants V. TRILLIUM TRANSPORTATION FUELS, LLC AND TRILLIUM USA COMPANY, LLC, Appellees
On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-10489
MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Bridges Appellees Trillium Transportation Fuels, LLC and Trillium USA Company (Trillium) sued
appellants Clean Energy and Clean Energy Fuels Corporation (Clean Energy) for tortious
interference with an existing contract, tortious interference with prospective business relationships,
business disparagement, and conspiracy. Clean Energy filed a motion to dismiss under the Texas
Citizens Participation Act (the TCPA). TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011. The
trial court denied Clean Energy’s motion to dismiss. Because the TCPA’s commercial speech
exemption applies, the trial court did not err by denying Clean Energy’s motion to dismiss. We
affirm the trial court’s judgment. Background
Trillium provides compressed natural gas (CNG) for the operation and maintenance
(O&M) of mass transit systems. These mass transit systems typically conduct a bidding process
in which CNG providers like Trillium submit a bid proposal for providing CNG. Clean Energy is
a direct competitor of Trillium in the mass transit systems and retail markets.
According to Trillium’s second amended petition, it “typically outperforms [Clean Energy]
in winning mass transit bids and contracts because of Trillium’s ability to provide tailored and
more cost-effective design build and O&M services.” After Clean Energy lost bid proposals to
Trillium, Clean Energy “resorted to a systematic approach to covertly interfere” with contracts
awarded to Trillium.1 Trillium asserted Clean Energy approached Trillium’s mass transit
customers with misinformation concerning Trillium’s pricing with the intended goal that
Trillium’s customers terminate its contracts. These customers included the San Diego
Metropolitan Transit System (SDMTS), VIA Metropolitan Transit in San Antonio, Orange County
Transportation Authority (OCTA), the City of Austin, and Fort Worth Transportation Authority.
Trillium filed suit against Clean Energy for tortious interference with an existing contract,
tortious interference with prospective business relationships, business disparagement, and
conspiracy. It claimed Clean Energy’s purposeful interference with its existing contracts caused
damages, loss of goodwill, and reputational injury.
Clean Energy subsequently filed a motion to dismiss under the TCPA. Clean Energy
argued Trillium’s claims stemmed from certain email communications. One email from SDMTS
to Trillium stated the following:
1 An email from Mark Barton, Clean Energy’s vice president, stated Clean Energy lost a Las Vegas contract to Trillium because Trillium’s five-year price was “half our price.” He said they planned to “contact many of Trillium’s existing transit customers and share this pricing information with them. Many of those agencies are paying Trillium rates that are double, triple, and even four times the rates that Trillium bid.” He further stated, “The goal is to show Trillium’s existing customers that their current O&M rates are out of market and encourage those customers to either renegotiate lower rates or terminate . . . .”
–2– Kris and Jason
Your friend over at Clean Energy sent this to us implying that rates have dropped and we should look at a new contract. Is this correct? It looks like a major drop in price once you meet the 300K throughput level. Almost looks like it’s an error or typo and some dropped $0.10 out of the cell cost on the whole sheet.
Let me know if this is correct and can you confirm if this is for Vegas.
Thanks, Mike
Michael Wygant Director of Fleet and Facilities Maintenance San Diego Metropolitan Transit System
The “this” referenced in the email was attached information about the prices Trillium charged its
other customers. In another email to SDMTS, Derek Turbide, Clean Energy’s western region vice
president, informed SDMTS that Clean Energy “lost a big CNG contract to Trillium” and attached
pricing. The email further stated,
I think this may be 3x or more less than what you are paying today and you may save a half a million bucks or more by terminating for convenience and resoliciting.
Frankly, we didn’t see this coming, so good on them, but I have a hunch these potential savings won’t be overlooked by other large CNG agencies like MTS.
Is this something MTS would consider? I hope so – I’d really appreciate an opportunity to come full circle and show you what we could do today.
I would be happy to visit or discuss if you have questions. I hope to hear from you!
Clean Energy argued the TCPA applied to Trillium’s claims because the above communications,
as well as others, related to Clean Energy’s exercise of its right to free speech on a matter of public
concern. Because the TCPA applied to Trillium’s claims, Clean Energy argued the burden shifted
to Trillium to bring forth clear and specific evidence for each element of its causes of actions.
–3– Trillium responded and argued the commercial speech exemption precluded application of
the TCPA because Clean Energy’s misconduct “did no more than propose a commercial
transaction to potential customers for CNG O&M services.” Trillium further attached evidence
supporting its causes of action. Clean Energy challenged Trillium’s evidence and the applicability
of the commercial speech exemption in its reply to Trillium’s response to the motion to dismiss.
After a hearing, the trial court denied Clean Energy’s first amended motion to dismiss
Trillium’s claims without explanation. This appeal followed.
The TCPA
The TCPA “protects citizens who petition or speak on matters of public concern from
retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584
(Tex. 2015) (orig. proceeding). That protection comes in the form of a motion to dismiss for “any
suit that appears to stifle” the defendant’s exercise of those rights. Id. Reviewing a TCPA motion
to dismiss requires a three-step analysis. Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 2018).
Initially the moving party must show by a preponderance of the evidence that the TCPA applies
to the legal action against it, meaning, the legal action is based on the exercise of the rights as
defined in the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). If the movant meets
its burden, the nonmoving party must establish by clear and specific evidence a prima facie case
for each essential element of its claim. Id. § 27.005(c). If the nonmoving party satisfies that
requirement, the burden shifts back to the movant to prove each essential element of any valid
defenses by a preponderance of the evidence. Id. § 27.005(d).
We review de novo the trial court’s determinations that the parties met or failed to meet
their burdens of proof under section 27.005. Campbell v. Clark, 471 S.W.3d 615, 623 (Tex.
App.—Dallas 2015, no pet.). We also review de novo questions of statutory construction.
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).
–4– Intertwined and overlaying this multi-step dismissal process is the TCPA provision
exempting certain actions from the TCPA’s application. See TEX. CIV. PRAC. & REM. CODE
§ 27.010 (establishing four exemptions). A party can avoid the TCPA’s burden-shifting
requirements by showing that one of the exemptions applies. See Santellana v. CentiMark Corp.,
2019 WL 1442228, at *3 (Tex. App.—Houston [1st Dist.] April 2, 2019, no pet.) (mem. op.). The
nonmovant bears the burden of proving a statutory exemption. MacFarland v. Le-Vel Brands
LLC, No. 05-16-00672-CV, 2017 WL 1089684, at *6 (Tex. App.—Dallas Mar. 23, 2017, no pet.)
(mem. op.).
Specifically at issue here, section 27.010(b) provides that the TCPA —
does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, . . . , or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
Id. § 27.010(b) (commonly referred to as the “commercial speech” exemption).
The Texas Supreme Court has recently explained that the commercial speech exemption
applies when (1) the defendant was primarily engaged in the business of selling or leasing goods,
(2) the defendant made the statement or engaged in the conduct on which the claim is based in the
defendant’s capacity as a seller or lessor of those goods or services, (3) the statement or conduct
at issue arose out of a commercial transaction involving the kind of goods or services the defendant
provides, and (4) the intended audience of the statement or conduct were actual or potential
customers of the defendant for the kind of goods or services the defendant provides. Castleman v.
Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). Castleman aligns with the approach taken
by other Texas appellate courts, including this one, concluding the challenged statement or conduct
must be made “for the purpose of securing sales in the goods or services of the person making the
statement.” See Backes v. Misko, 486 S.W.3d 7, 21 (Tex. App.—Dallas 2015, pet. denied).
–5– Analysis
Clean Energy argues the commercial speech exemption does not apply because (1) its
communications were about Trillium’s goods or services and not its own, and (2) the
communications did not arise from a commercial transaction. Trillium responds (1) Castleman
does not require the communication be about Clean Energy’s goods or services for the exemption
to apply and (2) section 27.010(b) requires a proposed transaction, not a completed one.
Trillium’s second amended petition states “Defendants are direct competitors of Trillium.
. . . Given the nature of their respective business, Trillium and Defendants directly compete with
each other in both the mass transit and CNG spaces . . . and various municipalities in Texas.”
Further, Turbide testified during his deposition that Clean Energy is engaged in the business of
selling or leasing goods and services related to CNG operations and maintenance. Therefore, it is
undisputed Trillium has established the first two Castleman factors.
Turbide admitted in his deposition that SDMTS, the City of Austin, Fort Worth
Transportation Authority, VIA Metropolitan Transit, and OCTA were customers or potential
customers. Therefore, it is also undisputed Trillium satisfied the “intended audience” prong of
Castleman.
We now consider the third Castleman prong— whether the statement or conduct at issue
arose out of a commercial transaction involving the kind of goods or services the defendant (Clean
Energy) provides. Clean Energy argues Dickens v. Jason C. Webster, P.C., No. 05-17-00423-CV,
2018 WL 6839568 (Tex. App.—Dallas Dec. 31, 2018, no pet.) (mem. op.) controls the outcome
of this case. We disagree. Dickens involved a dispute between two lawyers over an agreement to
share a contingency fee in a wrongful death case. Id. at *1. Webster filed a declaratory judgment
after the fee dispute arose, and Dickens subsequently filed a counterclaim alleging tortious
interference. Id. Dickens alleged Webster made false and defamatory statements to the client
–6– about Dickens, which included, among others, statements that (1) Dickens’s contract with the
client was “no good;” (2) Dickens was attempting to collect money from the client that he was not
entitled to; (3) Dickens was not a trial attorney and was mishandling the case; (4) the client owed
Dickens nothing because the fees were “a joke;” and (5) the client should terminate Dickens. Id.
at *4. Webster filed a motion to dismiss under the TCPA, which the trial court granted. Id. at *1.
On appeal, Dickens argued, among other things, that the commercial speech exemption applied.
Id. In concluding the commercial speech exemption did not apply, we stated, “For the exemption
to apply, the defendant’s statements or conduct must be about the defendant’s goods or services,
not the plaintiff’s.” Id. at *6 (citing Castleman and Glob. Tel*Link Corp. v. Securus Techs., Inc.,
No. 05-16-01224-CV, 2017 WL 3275921, at *2 (Tex. App.—Dallas July 31, 2017, pet. dism’d)).
We then held the statements at issue “all concern Dickens’s services to or contract with [client].
They do not concern or arise out of Webster’s services.” Id.
Clean Energy’s communications with Trillium’s customers and potential customers are
distinguishable. Although the email communications included information about Trillium and the
alleged overpricing of its services, the intended goal of the emails was to persuade Trillium’s
customers and potential customers to terminate its contracts and allow Clean Energy an
opportunity to bid on its goods and services.
For example, a January 26, 2018 email from a Clean Energy regional manager to a
representative with the City of Austin described Clean Energy’s business and stated, “[T]he
purpose of this e-mail is to express our company’s interest in providing operations and
maintenance support services and pricing for the City’[s] CNG fueling station located at 2400
Business Center Dr., Austin, TX 78744.” A follow up email included information about how much
the City of Austin was allegedly overpaying for CNG station maintenance services through
Trillium and implied Clean Energy could save the city almost $600,000 over the remaining five-
–7– year contract by competitively bidding out the CNG maintenance services. A January 25, 2018
email from Clean Energy’s regional manager attempted to “schedule a few minutes with you later
next week to visit about your current CNG station operations and briefly present our renewable
CNG offering and support services.” [Emphasis added.]
An email from Turbide to a SDMTS representative attached Trillium’s pricing, indicated
SDMTS was overpaying in its current contract, and stated, “I’d really appreciate an opportunity to
come full circle and show you what we could do today. I would be happy to visit or discuss if you
have questions. I hope to hear from you!” [Emphasis added.]
Clean Energy sent a similar email to OCTA in which it encouraged OCTA to meet and
“discuss how you can save two to three million dollars over the next three years.”
While the above emails do not include Clean Energy’s specific pricing information, they
certainly involve the kind of goods and services Clean Energy provides (CNG O&M). Clean
Energy sent unsolicited emails to Trillium’s customers, indicated Trillium’s prices were too high,
and attempted to meet with Trillium’s customers to “present our renewable CNG offering and
support services” and discuss “what we could do today.” The fact that the emails do not provide
specific details about Clean Energy’s pricing or business proposal does not mean the emails are
not about Clean Energy’s goods and services. Because part of Clean Energy’s communications
involves its goods and services, Dickens is distinguishable and does not control the outcome under
these facts. Dickens, 2018 WL 6839568, at *6; see also Giri v. Estep, No. 03-17-00759-CV, 2018
WL 2074652, at *4 (Tex. App.—Austin May 4, 2018, pet. denied) (mem. op.) (concluding
commercial speech exemption applied, in part, because veterinary’s emails to certain recipients
asking for their help if they were satisfied with his past services arouse out of a commercial
transaction involving the services he provided). Accordingly, Trillium has established Clean
Energy’s communications concern and arose from its goods and services.
–8– To the extent Clean Energy argues the commercial speech exemption does not apply
because its statements or conduct do not arise out of a commercial transaction, we disagree. The
TCPA does not define “commercial transaction.” And, “nothing in the TCPA or the supreme
court’s analysis of this exemption requires that there have been a commercial transaction between
the plaintiff and defendant.” Morrison v. Profanchik, No. 03-17-00593-CV, 2019 WL 2202210,
at *5 (Tex. App.—Austin May 22, 2019, no pet.). Rather, as the Castleman court recognized, the
commercial speech exemption applies only to certain communications related to services in the
marketplace—communications made not as a protected exercise of free speech by an individual,
but as commercial speech which does “no more than propose a commercial transaction.”
Castleman, 546 S.W.3d at 690–91 (emphasis added). The court further implied the exemption
applies when communications involve business pursuits for oneself or a business stands to profit
from the statements at issue. Id. at 691; see Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-
00732-CV, 2019 WL 2121116, at *8 (Tex. App.—Dallas May 15, 2019, no pet.) (mem. op.)
(commercial speech exemption applied when physician staffing agency pursued business for itself
and stood to profit from communications as part of a commercial transaction when it told
physicians they were not permitted to leave or work with Eskridge).
Turbide testified in his deposition that Clean Energy uses email, in-person visits,
conferences, proposals, and solicitations to market its O&M services. He admitted he “tried to
win San Diego Transit’s business or begin the process of winning their business” knowing SDMTS
had an existing contract with Trillium. “The purpose of my email was to start a dialogue about
winning their business, and this seemed like a good way to do it.” Thus, by emailing customers
and implying that Trillium was overcharging and attempting to meet and “start a conversation”
about Clean Energy’s goods or services, Clean Energy proposed a commercial transaction and
pursued business for itself with intention to profit from it. Moreover, the event that prompted
–9– Clean Energy’s unsolicited, targeted emails was a commercial transaction in which Trillium
successfully bid (and Clean Energy unsuccessfully bid) for the goods and services both companies
provide. Whether Clean Energy could succeed in its proposed commercial transaction is irrelevant
to our analysis; therefore, Clean Energy’s citation to municipal codes and federal regulations
explaining the lengthy bidding process does not change our conclusion.
We conclude the commercial speech exemption applies, and therefore, the TCPA does not
apply. TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b). We overrule Clean Energy’s first issue.
Having concluded the TCPA does not apply, we need not consider whether Trillium established
by clear and specific evidence each element of its claims. See TEX. R. APP. P. 47. Accordingly,
the trial court did not err by denying Clean Energy’s motion to dismiss.
Conclusion
We affirm the trial court’s judgment.
/David L. Bridges/ DAVID L. BRIDGES JUSTICE
181228F.P05
–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CLEAN ENERGY AND CLEAN On Appeal from the 192nd Judicial District ENERGY FUELS CORPORATION, Court, Dallas County, Texas Appellants Trial Court Cause No. DC-18-10489. Opinion delivered by Justice Bridges. No. 05-18-01228-CV V. Justices Brown and Nowell participating.
TRILLIUM TRANSPORTATION FUELS, LLC AND TRILLIUM USA COMPANY, LLC, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees TRILLIUM TRANSPORTATION FUELS, LLC AND TRILLIUM USA COMPANY, LLC recover their costs of this appeal from appellants CLEAN ENERGY AND CLEAN ENERGY FUELS CORPORATION.
Judgment entered this 9th day of July, 2019.
–11–