Cheniere Energy, Inc. v. Lotfi

In Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.--Houston 1st Dist. 2014, no pet.), the plaintiff sued her former employer for wrongful termination and sued two former coworkers for tortious interference. 449 S.W.3d at 211-12. The coworkers moved to dismiss the claim against them under the Act, asserting the plaintiff's lawsuit was brought in response to their exercise of the right of association. Id. at 212. The plaintiff filed a response, but neither side filed any affidavit evidence. With only the pleadings to go on, the trial court denied the motion to dismiss. Id. The court of appeals upheld the trial court's ruling, concluding the coworkers failed to meet their burden to show they were entitled to dismissal because the limited allegations in the plaintiff's pleadings did not show the coworkers had a communication, acted in furtherance of a common interest, or that the claim against them is related to their exercise of the right of association. Id. at 214-15. Referring to the title of the Act, the court noted that the terms "citizen" and "participation" contemplate a larger public purpose. Id. at 216. It further stated the plaintiff's lawsuit did not implicate the legislature's express declaration of the purpose behind the Act, which indicates that a nexus is required between the communication and the generally recognized parameters of First Amendment protection. Id. "Otherwise, any communication that is part of the decision-making process in an employment dispute -- to name just one example -- could be used to draw within the Act's summary dismissal procedures private suits implicating only private issues." Cheniere Energy, 449 S.W.3d at 216-17. Two members of the three-judge panel concurred, writing separately to emphasize that the Act did not apply to the plaintiff's tortious interference claim against her coworkers. Id. at 217 (Jennings, J., concurring). The concurrence stated that, standing alone, the Act's definition of the "exercise of the right of association" in section 27.001(2) appears to include communications that are not constitutionally protected and do not concern citizen or public participation. Id. at 219. The concurrence stated that reading section 27.001(2) in isolation would lead to absurd results and would "actually thwart any meritorious lawsuit for demonstrable injury in which a plaintiff alleges that two or more persons engaged in a civil wrong involving a communication." Id. At a minimum, such a reading would add unnecessary delay and expense to a plaintiff's lawsuit. Id.