Ernst & Young LLP and S.K. Thakkar v. Ryan, LLC

• Court: Court of Appeals of Texas
• Decided: June 29, 2023
• Docket: 01-21-00603-CV
• Status: Published

Opinion

Opinion issued June 29, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00603-CV ——————————— ERNST & YOUNG, LLP AND S.K. THAKKAR, Appellants V. RYAN, LLC, Appellee

On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2020-35770

MEMORANDUM OPINION

Ernst & Young, LLP (EY) and S.K. Thakkar (collectively, appellants), moved

to dismiss Ryan, LLC’s claim against EY for tortious interference with prospective business relations under the Texas Citizens Participation Act (TCPA).1 See TEX. CIV.

PRAC. & REM. CODE §§ 27.001–.011. Ryan alleges that EY obtained information on

Ryan’s proprietary methods for calculating certain oil-and-gas-related tax credits

when it audited some of Ryan’s existing clients and then used that information to

develop competing services and solicit Ryan’s prospective clients. Appellants assert

that EY’s public audits involve communications and conduct that are protected

exercises of free speech, association, and petitioning rights under the TCPA. They

further assert that Ryan’s tortious interference claim is based on or in response to

that activity and therefore is subject to dismissal. The trial court disagreed and denied

the motion to dismiss.

In three issues on appeal, appellants contend: (1) the trial court erred by

concluding that the TCPA does not apply to Ryan’s claim for tortious interference

with prospective business relations, (2) the trial court misconstrued the TCPA’s

commercial speech exemption, and (3) Ryan failed to establish by clear and specific

evidence a prima facie case for each essential element of tortious interference with

prospective business relations.

1 The Texas Legislature amended certain provisions of the TCPA in 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684. The amendments became effective September 1, 2019. Id. §§ 11–12, 2019 Tex. Gen. Laws at 687. Because Ryan filed its original petition after the effective date of the amendments, this case is governed by the current statute. 2 Because we conclude that appellants did not satisfy their burden to show that

Ryan’s claim for tortious interference with prospective business relations falls within

the TCPA’s scope, we affirm.

Background

EY is an accounting, audit, and professional services firm. Ryan is a

competing accounting and tax consulting firm. Ryan provided consulting services to

certain energy-sector companies whose financial statements EY audited. Ryan sued

EY and its employee, Thakkar, alleging that EY obtained Ryan’s proprietary

information during EY’s audits, including Ryan’s “fee arrangements” and its

methodologies for “federal royalty” and “severance tax” consulting services, and

then used this information to interfere with and usurp potential contracts between

Ryan and third parties for consulting engagements.

Ryan alleges that it “strategically developed [an] oil and gas severance tax and

royalty practice group” that “serves most of the oil and gas companies in the Fortune

500” by “helping those companies realize savings and obtain refunds of state taxes

and federal royalties.” A principal in Ryan’s severance tax and royalty group

described, “[C]ompanies who extract oil and gas from federal land and waters pay

royalties to the federal government, namely, the Office of Natural Resources

Revenue (‘ONRR’), which is in the Department of Interior.” These companies may

deduct from their royalty burden certain expenses incurred in transporting and

3 processing the oil and gas extracted. Ryan developed a proprietary methodology for

identifying, calculating, and supporting allowable deductions to federal royalty

payments that realizes savings for its clients. Ryan earns a portion of its clients’

savings, typically on a contingency basis, as payment for its service.

Ryan also earns fees for severance-tax consulting services. A severance tax is

a state charge imposed on the extraction, production, and sale of oil and gas. As

Ryan explained, companies that pay severance taxes can deduct certain expenses,

like transportation and operation costs. “Tax-services companies like Ryan and EY

help producers reduce their tax burden by, among other methods, maximizing these

deductions.”

Ryan alleges that “[u]nder the guise of ‘auditing’ clients,” EY

“misappropriated a substantial trove of Ryan[‘s] intellectual property,” which it

made available to its employees in a new, competing federal royalty and severance

tax group. Then, “in violation of fundamental accounting rules prohibiting auditors

such as EY from using their attest function to profit from consulting services, at least

two EY employees, including [] Thakkar . . . , used Ryan’s work papers to interfere

with Ryan’s relationships with its existing clients and compete for business with new

clients.”

Based on these allegations, Ryan pleaded multiple causes of action against

either EY or Thakkar or both, including for misappropriation of trade secrets, breach

4 of contract, common law fraud, tortious interference with existing contracts, and

tortious interference with prospective business relations. Ryan also sought to enjoin

appellants from, among other things, seeking, retaining, or using Ryan’s confidential

or proprietary information to conduct audits or provide severance tax or federal

royalty services.

Appellants jointly moved to dismiss Ryan’s cause of action against EY for

tortious interference with prospective business relations under the TCPA. The TCPA

motion did not challenge Ryan’s other causes of action.

In Ryan’s original, first amended, and second amended petitions, the claims

for tortious interference with existing contracts and prospective business relations

were pleaded together. The petitions did not identify the specific factual allegations

underpinning the prospective relations claim beyond that the claim incorporated “the

preceding paragraphs” in the respective petitions, which included descriptions of the

public-audit communications and conduct. But after appellants filed their TCPA

motion, Ryan filed a third amended petition, which separated the two tortious

interference claims and alleged interference with its prospective business relations

“via a variety of unlawful means.”2 While still incorporating the petition’s previous

paragraph about public audits, Ryan’s third amended petition more specifically

2 Ryan’s third amended petition is the petition at issue here. 5 alleges that EY is liable to Ryan for tortiously interfering with Ryan’s prospective

business relations because:

• “Ryan had a reasonable probability of obtaining the prospective contracts in federal royalty and severance tax services that were subject to EY’s interference.”

• “The interference was intentional because EY’s employees and agents specifically knew of Ryan’s prospective contract in which EY interfered.”

• “[EY and Thakkar] were aware of facts and circumstances that would lead a reasonable person to believe[] that Ryan’s prospective business relationship existed, including specific knowledge that this was a small market of competitors[,] with Ryan being EY’s only other competitor in the federal royalty space, and the dominant force and only other competitor with the requisite expertise in the severance tax space.”

• “EY interfered in Ryan’s prospective business relations for the provision of federal royalty and severance tax services via a variety of unlawful means, each of which would be independently actionable as a recognized tort. This includes the misappropriation of Ryan’s trade secrets, tortious interference in the contractual confidentiality obligations of others to Ryan, tortious interference in the restrictive covenants of former employees, and making fraudulent misrepresentations to Ryan and prospective customers, as set forth below.”

• “These unlawful acts committed by EY as part of its intentional interference were the but-for and proximate cause of Ryan losing, and EY gaining, prospective contracts to perform federal royalty and severance tax services, including at least two specific such instances . . . . These losses resulted in millions of dollars in lost revenue and profits suffered by Ryan.” Appellants argued that Ryan’s cause of action for tortious interference with

prospective business relations is based on or in response to EY’s audits, which

implicate protected speech and association under the TCPA. They explained that 6 public companies file auditor’s reports with the Securities and Exchange

Commission (SEC). The SEC and the Public Company Oversight Board

(PCAOB) have regulatory authority over public-company auditors to further the

public’s interest in “the preparation of informative, accurate, and independent audit

reports.” Consequently, independent auditors, like EY, “play an essential role in the

regulation and efficient function of the country’s capital markets, both public and

private,” making EY’s audits matters of public concern subject to the TCPA’s

protections.

Alternatively, appellants argued that Ryan’s tortious interference with

prospective relations claim is based on or in response to communications that “fit[]

within the broad definition of the right to petition” because “[t]he audit reports EY

authored in connection with its public company audits referenced in [Ryan’s]

[p]etition were subject to review by both the SEC and the PCAOB.”

Ryan responded that appellants’ arguments for the TCPA’s application

miscast its tortious interference claim. According to Ryan, the claim “targets [EY’s]

interference with Ryan’s federal royalty and severance tax business, not either

party’s auditing business.” Ryan added that it had identified two prospective clients

who were the subject of EY’s alleged tortious interference, and that EY does not

provide auditing services to either prospective client.

7 After a two-day hearing, the trial court denied appellants’ TCPA motion. The

trial court stated from the bench:

I disagree with [EY and Thakkar] that the TCPA applies on a couple of levels in part because I see a separation between the allegations . . . that touch on the auditing function . . . [and] the tortious interference of prospective business relations because I think that is geared specifically towards the severance tax and federal royalty tax services. And so because, as has been made clear to me on the record, the auditing services are separate and apart from the severance tax and federal royalty tax services, to me that does not implicate like the SEC or the . . . PCAOB.

The trial court later issued a written order denying the TCPA motion.

Standard of Review

We review de novo the denial of a TCPA motion to dismiss. Dall. Morning

News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Better Bus. Bureau of Metro.

Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston

[1st Dist.] 2013, pet. denied). In deciding whether a legal action should be dismissed

under the TCPA, we consider “the pleadings, evidence a court could consider under

[Texas] Rule [of Civil Procedure] 166a, . . . and supporting and opposing affidavits

stating the facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM.

CODE § 27.006(a). The plaintiff’s allegations, and not the defendant’s admissions or

denials, constitute the basis of a legal action. Hersh v. Tatum, 526 S.W.3d 462, 467

(Tex. 2017). We review the pleadings and evidence in the light most favorable to the

nonmovant. Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 470 (Tex. App.—Houston

8 [1st Dist.] 2020, pet. dism’d) (en banc); Schimmel v. McGregor, 438 S.W.3d 847,

855–56 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Whether the TCPA

applies is an issue of statutory interpretation that we also review de novo. S & S

Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).

TCPA Motion to Dismiss

Appellants contend they satisfied their initial burden to show that the TCPA

applies. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). Ryan’s cause of action for

tortious interference with prospective business relations is a “legal action” as defined

in the TCPA. See id. § 27.001(6) (defining “legal action” to include cause of action).

The question is whether Ryan’s tortious interference claim “is based on or is in

response to” EY’s exercise of the right of free speech, the right of association, or the

right to petition. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). Appellants contend

all three protected rights are implicated here. We address each in turn.

A. Statutory Framework

Codified in Chapter 27 of the Texas Civil Practice and Remedies Code, the

TCPA protects citizens from retaliatory lawsuits that seek to silence or intimidate

them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex.

2015) (orig. proceeding); see generally TEX. CIV. PRAC. & REM. CODE § 27.002. The

TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to

9 chill First Amendment rights, not to dismiss meritorious lawsuits. In re Lipsky, 460

S.W.3d at 589; see also TEX. CIV. PRAC. & REM. CODE § 27.002.

To carry out its purpose, the TCPA provides a multi-step process for

determining whether a lawsuit or claim should be dismissed under the statute. See

Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex.

2019). First, the trial court must dismiss a legal action if the movant shows that the

action is “based on” or “in response to” its exercise of (1) the right of free speech,

(2) the right to petition, or (3) the right of association. TEX. CIV. PRAC. & REM. CODE

§ 27.005(b); Creative Oil, 591 S.W.3d at 132; In re Lipsky, 460 S.W.3d at 586–87.

Under the next step, the nonmovant may avoid dismissal by establishing “by clear

and specific evidence a prima facie case for each essential element of the claim in

question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). Finally, the movant can still

win dismissal if it establishes an affirmative defense or other grounds on which it is

“entitled to judgment as a matter of law.” Id. § 27.005(d).

Intertwined with and overlaying this multi-step dismissal process is the TCPA

provision exempting certain actions from its application. See id. § 27.010; Morrison

v. Profanchik, 578 S.W.3d 676, 680 (Tex. App.—Austin 2019, no pet.). When

invoked, the court must consider an exemption’s applicability after and in the

context of the movant having met its initial burden under the first step of the

10 dismissal process. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex.

2018); Morrison, 578 S.W.3d at 680.

B. Rights of free speech and association

We begin by considering appellants’ contention that Ryan’s claim for tortious

interference with prospective business relations “is based on or is in response to”

EY’s exercise of the rights of free speech and association. Both the right of free

speech and the right of association, as defined in the TCPA, involve matters of public

concern. See TEX. CIV. PRAC. & REM. CODE § 27.001(2), (3). The exercise of the

right of free speech “means a communication made in connection with a matter of

public concern.” Id. § 27.001(3). A “‘communication’ includes the making or

submitting of a statement or document in any form or medium . . . .” Id. § 27.001(1).

The exercise of the right of association “means to join together to collectively

express, promote, pursue, or defend common interests relating to a governmental

proceeding or a matter of public concern.” Id. § 27.001(2).

Appellants argue these rights are implicated here because Ryan’s tortious

interference claim is based on or related to EY’s conduct and communications in its

capacity as an independent public-company auditor, which involve matters of public

concern. The TCPA broadly defines a “matter of public concern” to include a

statement or activity about (1) “a matter of political, social, or other interest to the

community,” or (2) “a subject of concern to the public.” Id. § 27.001(7). But the

11 definition is not without limit. “To be a matter of public concern, a claim must have

public relevance beyond the interest of the parties.” Morris v. Daniel, 615 S.W.3d

571, 576 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing Creative Oil, 591

S.W.3d at 136). Private disputes, whether based in contract or tort, affecting only the

litigants’ fortunes are not matters of public concern. Id. at 576–77; see also

Gaskamp, 596 S.W.3d at 475–77 (noting that tort claims with no potential impact

on the wider community or a public audience are not TCPA matters of public

concern).

According to appellants, an independent public-company auditor, like EY,

serves as a “public watchdog” and is “central to the effectiveness of the public

financial markets.” They say, “An auditor’s communications with its client and its

own internal documentation are the kind of communications essential for the

issuance of publicly available audit reports that are required by the SEC and that can

be relied on by the investing public.” EY also claims a common interest with federal

regulatory entities, like the SEC and the PCAOB, in ensuring the availability of

reliable audit reports for the investing public.

We agree, and Ryan does not contest, that EY’s audit-related communications

and conduct are connected with or relate to a matter of public concern for the reasons

appellants state. See, e.g., United States v. Arthur Young & Co., 465 U.S. 805, 817–

18 (1984) (recognizing that “[b]y certifying the public reports that collectively

12 depict a corporation’s financial status, the independent public auditor assumes a

public responsibility” and that an independent public auditor’s “ultimate allegiance”

is to a corporation’s creditors, its stockholders, and the investing public). But that

does not resolve our inquiry. It matters naught that EY’s audit-related

communications and conduct are matters of public concern if Ryan’s claim for

tortious interference with prospective business relations is not “based on” or “in

response to” such communications or conduct. And according to Ryan, it is not.

Ryan characterizes its tortious interference claim against EY as “based on”

and “in response to” the solicitation of royalty and severance tax business from

Ryan’s prospective clients, not EY’s audit-related communications and conduct.

Ryan argues that the solicitation-related communications and conduct are not

protected under the TCPA because such actions have no relevance to a public

audience of buyers or sellers and concern only “the pecuniary interests of the private

parties involved.” Creative Oil, 591 S.W.3d at 136.

Appellants do not dispute that the solicitation-related communications and

conduct are unprotected by the TCPA. Essentially then, the parties agree about

which communications and conduct the TCPA protects. That is, they do not contest

that EY’s audit-related communications and conduct are protected under the TCPA,

whereas the solicitation-related communications and conduct are not. But they

disagree about the extent to which Ryan’s tortious interference claim is based on one

13 or the other type of communications and conduct or both. Consequently, our central

inquiry is: what are the factual bases for Ryan’s tortious interference claim?

To determine what communications or conduct Ryan’s tortious interference

claim is “based on” or “in response to,” we review the allegations in Ryan’s petition.

Hersh, 526 S.W.3d at 467 (observing that Texas courts have often said that the

plaintiff’s petition is “the best and all-sufficient evidence of the nature of the action”

to show that the TCPA applies to the plaintiff’s claims); Gaskamp, 596 S.W.3d at

480 (“The nature of a legal action is revealed by the factual allegations in the

petition.”). Implicit in this analysis is that we do not blindly accept attempts by

appellants to characterize Ryan’s claims as implicating protected expression and

conduct. See Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015, pet.

dism’d). To the contrary, we view the pleadings in the light most favorable to

Ryan—that is, “favoring the conclusion that its claims are not predicated on

protected expression.” Id. EY’s expression or conduct that is not a factual predicate

for Ryan’s tortious interference claim is not pertinent to the inquiry. See id.; see also

TEX. CIV. PRAC. & REM. CODE § 27.003(a) (detailing that a party may file a motion

to dismiss if legal action is “based on or is in response to” protected conduct).

Appellants urge that Ryan’s pleading alone compels a conclusion that the

tortious interference claim is based on or in response to EY’s audit-related

communications and conduct. See TEX. CIV. PRAC. & REM. CODE § 27.006(a) (courts

14 may consider pleadings in determining whether legal action is subject to the TCPA).

In support, they look primarily to allegations in the third amended petition’s

introduction and background sections claiming that, during EY’s auditing work, the

firm sought and obtained Ryan’s confidential and proprietary information from EY’s

audit clients and then used that information to solicit Ryan’s prospective consulting

clients, thereby “usurp[ing] at least one prospective contract.” Appellants emphasize

the petition’s introductory statement that EY’s audit group “ha[d] repeatedly

demanded Ryan’s confidential work papers from [mutual] clients” and, under the

“guise” of auditing those clients, “misappropriated a substantial trove of Ryan

intellectual property,” which EY’s audit group then made available to “no less than

nine separate employees in a new competing federal royalty and severance tax

group.” And appellants identify several paragraphs in the background section which

they contend connect EY’s audit-related communications to its alleged unlawful

interference with Ryan’s prospective contracts. Specifically, they point to the

paragraphs alleging:

• “In November 2019, Ryan learned that Thakkar had begun pitching EY’s federal royalty services to Ryan’s clients. During these solicitations, Thakkar indicated that he had firsthand knowledge of Ryan’s confidential federal royalty work papers and that the client would be disappointed by Ryan’s deliverables. Because Thakkar had never been employed by Ryan in its federal royalty practice, his firsthand knowledge could not have come from Ryan. Rather, Ryan subsequently discovered that EY’s audit group had demanded Ryan’s work papers from its severance tax and federal royalty customers (in breach of Ryan’s confidentiality agreements) under

15 the guise of ‘auditing,’ only to then provide Ryan’s confidential intellectual property to Thakkar.”

• “To obtain the work product, EY’s [audit] team requested Ryan’s confidential work product from a mutual client under the guise of the documents being necessary for the team to complete the audited financials for the client.”

• “[A] Ryan client that acceded to EY’s demand and provided EY with Ryan’s confidential, proprietary, and trade-secret work product has continually been harassed by similar demands from EY’s audit team and rudimentary questions relating to the client’s federal royalty schedules.”

• “Further underscoring the illegitimate and illegal nature of the audit team’s requests, another mutual client approached by EY refused to provide the requested Ryan information, citing the confidentiality obligations and the lack of any legitimate and lawful purpose in EY’s requests.”

• “[T]he actions . . . by EY have violated the [federal auditing standards that apply to independent public accountants.]”

Additionally, appellants point out that the petition expressly “incorporates the

preceding paragraphs [under the count against EY for tortious interference with

prospective business relations] as if fully stated therein.”

We disagree that the allegations in these paragraphs can be fairly read, in the

light most favorable to Ryan, to support appellants’ characterization of the

audit-related communications and conduct as the factual basis or impetus for Ryan’s

claim for tortious interference with prospective business relations. Ryan pleaded

multiple causes of action against both EY and Thakkar, not just tortious interference

with prospective business relations against EY. Consequently, the allegations in the

introductory and background sections of Ryan’s petition may be the basis or impetus

16 for the tortious interference claim or they may regard another claim, such as

misappropriation of trade secrets. The mere inclusion of allegations in the petition,

some of which include expression or conduct protected by the TCPA and some of

which do not, does not transform the tortious interference claim into one based on

or responding to any protected activity. See Gaskamp, 596 S.W.3d at 479 (rejecting

the argument that speech for one claim can be used to render all claims subject to

TCPA protection).

Read in the light most favorable to Ryan, the tortious interference with

prospective contracts claim, as set out in Ryan’s third amended petition, does not

allege that EY usurped Ryan’s prospective royalty and severance tax contracts by

conducting public audits. As stated by Ryan, “[T]he acts of EY’s auditors are

insufficient by themselves to give rise to a tortious interference with prospective

business relations claim. Rather, those acts give rise to Ryan’s trade secret

misappropriation claim.” It is the “additional, subsequent conduct” that “trigger[ed]

Ryan’s tortious interference claim—namely, EY’s use of Ryan’s trade secrets to

form a competing federal royalty business and to solicit Ryan’s federal royalty

customers.” That is, while EY allegedly obtained trade secrets in audits and the

audits have some link to the claim, the audits are several steps removed from the

17 solicitations.3 The core of the tortious interference claim is the subsequent conduct

in misusing the information through “reverse engineer[ing]” to develop a competing

federal royalty business, which EY and Thakkar then marketed to prospective clients

to usurp Ryan’s business opportunities.

While the tortious interference claim may be tangentially related to EY’s

auditing communications and conduct, tangentially related communications and

conduct no longer fall within the ambit of the TCPA. See Union Pac. R.R. Co. v.

Chenier, 649 S.W.3d 440, 447–48 (Tex. App.—Houston [1st Dist.] 2022, pet.

denied) (concluding that by dropping the “relates to” standard, the revised TCPA

“narrowed” the categories of connections such that a claim must be more than

“tangential[ly]” related to the exercise of protected rights).

When the Legislature amended the TCPA in 2019, one of the more significant

changes to the statute was a narrowing of the categories of connections a claim could

3 Appellants cite TheraSource, LLC v. Houston Occupational Therapy, PLLC, No. 01-19-00877-CV, 2021 WL 3868771, at *8 (Tex. App.—Houston [1st Dist.] Aug. 31, 2021, no pet.) (mem. op.), to support their contention that the audit-related communications and conduct are sufficiently connected to the tortious interference claim. In TheraSource, the plaintiffs alleged that the defendants interfered with their prospective business by making false statements to a referral agent about the quality of their healthcare services. The cited discussion in TheraSource concerned whether the communications at issue were made in connection with a matter of public concern, considering recent case law on the scope of that inquiry. See id. at *7 (discussing Creative Oil, 591 S.W.3d at 137, and Gaskamp, 596 S.W.3d at 479). The issue was not the meaning or scope of the connectivity language in the pre-amendment TCPA—“based on, relates to, or is in response to”—that has since been narrowed. See id. at *7–8. 18 have to the exercise of a protected right. See ML Dev, LP v. Ross Dress for Less,

Inc., 649 S.W.3d 623, 626 (Tex. App.—Houston [1st Dist.] 2022, pet. denied).

Originally, the movant had to establish that a legal action was “based on,” “relate[d]

to,” or “in response to” the movant’s exercise of a protected right. TEX. CIV. PRAC.

& REM. CODE § 27.005(c) (pre-amendment version). “Relate[d] to” was the most

expansive of the three categories of connections and brought tangential

communications within the TCPA’s reach. See Chenier, 649 S.W.3d at 448; Robert

B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 604 (Tex. App.—San Antonio 2018,

pet. denied) (interpreting “relates to” as a broad qualifier); Calvin v. Abbott, 545

S.W.3d 47, 69 n.85 (Tex. App.—Austin 2017, no pet) (interpreting “relates to” as

merely denoting “some sort of connection, reference, or relationship”); see also

WEBSTER’S THIRD NEW INT’L DICTIONARY 1916 (2002) (defining “relate” as “to be

in relationship: to have reference”); THE AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE 1482 (2011) (defining “relate” as “to have connection, relation,

or reference”). However, the 2019 amendments deleted “relates to” from the list,

thereby requiring future movants, like appellants, to establish that the legal actions

they seek to dismiss are “based on” or “in response to” their exercise of a protected

right. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), .005(b) (new version); see Laura

Prather & Robert T. Sherwin, The Changing Landscape of the Texas Citizens

19 Participation Act, 52 TEX. TECH. L. REV. 163, 169 (2020) (noting that the deletion

of “relates to” increased the burden on movants seeking dismissal).

The ordinary meaning of the “is based on” component denotes a legal action

that has the relevant TCPA-protected activity “as a main ingredient” or

“fundamental part” of the challenged legal action. See Serafine v. Blunt, 466 S.W.3d

352, 391 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring) (citing

WEBSTER’S at 180 (defining “base” (n.) as “main ingredient” and “fundamental part

of something”); AMERICAN HERITAGE at 148 (defining “base” (n.) as “fundamental

principle,” “underlying concept,” “fundamental ingredient,” and “chief

constituent”); BLACK’S LAW DICTIONARY at 180 (defining “base” (v.) as “to use

(something) as the thing from which something else is developed”)). The second

component—“in response to”—denotes some sort of answer or other act in return.

Id. (citing WEBSTER’S at 1935 (defining “response” as “act or action of saying

something in return, making an answer”); AMERICAN HERITAGE at 1496 (defining

“response” as “an answer”)).

The deleted phrase “relates to” might encompass EY’s audit-related

communications and conduct, but “based on” and “in response to” are not so

sweeping. Under a de novo review, we cannot agree that EY’s audit-related

communications are the “main ingredient” or “fundamental part” of the tortious

interference claim. Nor is the tortious interference claim in “answer” to EY’s

20 audit-related communications and conduct. As construed in the light most favorable

to Ryan, the tortious interference claim has as its “main ingredient” the unprotected

solicitation-related communications and conduct. The tortious interference claim is

asserted in answer thereto. Even if there is some connection between the

audit-related communications and the tortious interference claim, the tightening of

the statutory language forecloses appellants’ invocation of the TCPA. See

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (noting

statutory presumption that “the Legislature chooses a statute’s language with care,

including each word chosen for a purpose, while purposefully omitting words not

chosen”).

Expanding the definition of “based on” to include the audit communications

that EY allegedly inappropriately received second-hand then used to solicit business,

as the concurrence suggests, threatens to resurrect the departed “related to” language

from the since-amended TCPA. The primary communication the cause of action

rests on is the solicitation itself, not the information allegedly misappropriated then

used to make the solicitation. We decline to read “related to” back into the statute.

Consequently, we conclude that appellants have not shown that Ryan’s tortious

interference claim against EY is “based on” or “in response to” the exercise of EY’s

rights of free speech and association. See TEX. CIV. PRAC. & REM. CODE § 27.005(b).

21 C. Right to Petition

Appellants also contend that Ryan’s claim for tortious interference with

prospective business relations is “based on”’ or “in response to” the exercise of EY’s

right to petition because EY’s audit reports are filed with, and reviewed by, federal

regulators. The Texas Supreme Court has noted the TCPA’s definition of the

exercise of the right to petition is “expansive.” Youngkin v. Hines, 546 S.W.3d 675,

680 (Tex. 2018). It includes “a communication in or pertaining to . . . an executive

or other proceeding before a department of the state or federal government or a

subdivision of the state or federal government” and “a communication in connection

with an issue under consideration or review by a[n] . . . executive, . . . or other

governmental body or in another governmental or official proceeding.” TEX. CIV.

PRAC. & REM. CODE § 27.001(4)(A)(iii), (B). An “official proceeding” is defined as

“any type of administrative, executive, legislative, or judicial proceeding that may

be conducted before a public servant.” Id. §27.001(8).

For the reasons we articulated with respect to the rights of free speech and

association, we conclude that EY and Thakkar have not shown that Ryan’s tortious

interference claim is “based on” or “in response to” the exercise of the right to

petition. EY’s audit reports filed with, and reviewed by, federal regulators are not

the “main ingredient” or a “fundamental part” of Ryan’s tortious interference claim.

Nor is the tortious interference claim asserted in answer to the audit reports.

22 Conclusion

In sum, we conclude that appellants did not meet their burden to show that the

TCPA applies to Ryan’s claim against EY for tortious interference with prospective

business relations.4 Accordingly, we hold the trial court did not err in denying

appellants’ TCPA motion to dismiss that claim. We affirm the trial court’s order.

Sarah Beth Landau Justice

Panel consists of Justices Kelly, Landau, and Farris.

Justice Farris, concurring.

4 Having concluded that appellants did not establish that the TCPA applies, we need not address their arguments on the commercial speech exemption or the proof of the tortious interference claim. See TEX. R. APP. P. 47.1. 23