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MacFarland v. Le-Vel Brands LLC

Court of Appeals of Texas, Fifth District, Dallas

March 23, 2017

BRIAN C. MACFARLAND, Appellant
v.
LE-VEL BRANDS LLC, Appellee

         On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-00376-2016

          Before Justices Lang, Brown, and Whitehill

          MEMORANDUM OPINION

          DOUGLAS S. LANG JUSTICE

         Appellee Le-Vel Brands LLC ("Le-Vel") filed this lawsuit against appellant Brian C. MacFarland, asserting claims for defamation and business disparagement based on statements published on a website owned and operated by MacFarland. MacFarland filed a motion to dismiss pursuant to the Texas Citizens Participation Act ("TCPA"). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). The trial court signed an order denying MacFarland's motion to dismiss and awarding "costs and reasonable attorney's fees" to Le-Vel pursuant to TCPA section 27.009(b). See id. § 27.009(b).

         In this interlocutory appeal, MacFarland asserts ten issues complaining about the trial court's denial of his motion to dismiss and the award of costs and reasonable attorney's fees to Le-Vel.[1] Several of the ten issues listed in the preceding footnote are related and overlap as to subject matter. Accordingly, please note that we will address some issues individually and some others in combination.

         For the reasons stated below, we reverse the trial court's order, render judgment dismissing Le-Vel's claims, and remand this case to the trial court for further proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL CONTEXT

         MacFarland is the owner and operator of a website titled Lazy Man and Money, which he describes as having more than four million visitors. Le-Vel is a multi-level marketing company ("MLM") that sells dietary supplements, including a product line called "Thrive." In approximately June 2015, MacFarland created a blog post on his website titled "Is Le-Vel Thrive a Scam?" (the "Article" or "Post"), which pertained to the business operations and products of Le-Vel.[2] On January 18, 2016, Le-Vel sent MacFarland a letter in which it (1) described the Article as containing "disparaging, false, and defamatory statements about Le-Vel" and (2) demanded, among other things, that MacFarland permanently remove the Article from his website, along with any comments, and "cease and desist" from making "any further defamatory or derogatory statements regarding Le-Vel." Subsequent to that letter, MacFarland made several edits to the Article, [3] but did not remove the Article from his website.

         Le-Vel filed this lawsuit on January 26, 2016. In its first amended petition, which is the live petition in this case, Le-Vel stated it manufactures, markets, and sells "nutritional supplements" to "health and fitness conscious individuals" through "a network of individual Promoters." Additionally, Le-Vel (1) described the Article and an additional article on MacFarland's website titled "Is Every MLM a Scam?" and (2) stated that based on MacFarland's published statements, it sought "monetary relief over $1, 000, 000, " including "actual damages, general and special, " and a permanent injunction requiring MacFarland to "remove his defamatory and disparaging publications." Specifically, as to its defamation claim, Le-Vel stated in part,

40. MacFarland published and republished numerous written statements to the public on the internet, asserting as fact that Le-Vel: incentivizes its Promoters to make misrepresentations; is violating FTC guidelines and regulations; is illegally violating FDA marketing restrictions; is an illegal pyramid scheme; is a scam; is not a legitimate business; supports Promoters who do not perform any function other than pyramid scheme recruiting; sets up its Promoters for failure as "a [m]athematical [c]ertainty"; is a "Pay to Play scheme"; is overcharging people by fifty times, for hundreds of dollars per year; sells snake oil; sells THRIVE patches that are placebos with no ingredients; sells THRIVE M supplements that are incomplete multivitamins; has never conducted any research to verify that THRIVE works; and has never studied its products in trials using a patch delivery system.
. . . .
42. Defendant's statements were defamatory per se because they injured Plaintiff in Plaintiff's business reputation. Defamation per se entitles Plaintiff to a presumption of general damages.

         Further, as to its business disparagement claim, Le-Vel specifically listed the same statements described in its defamation claim and asserted in part that MacFarland's "false and disparaging words" caused "pecuniary loss" to Le-Vel.

         MacFarland filed a general denial answer. Additionally, MarFarland filed (1) a motion to dismiss the lawsuit under the TCPA, with more than fifty pages of exhibits attached, and (2) a supplemental motion to dismiss under the TCPA (collectively, the "motion to dismiss"). MacFarland's exhibits consisted of (1) a copy of Le-Vel's "Rewards Plan"; (2) a document describing Le-Vel's "Thrive M" product; (3) printouts from the Lazy Man and Money website, including copies of the five-page original Article and the edited version; and (4) printouts of pages from the website of the United States Federal Trade Commission.

         In his motion to dismiss, MacFarland stated in part (1) "Le-Vel's lawsuit is based on, relates to, and is in response to MacFarland's exercise of his right of free speech"; (2) because MacFarland has met his burden to show this case "falls squarely in the purview of the [TCPA], " dismissal is proper unless Le-Vel "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question"; (3) "Le-Vel cannot meet its heavy burden"; and (4) "[a]s such, the Court must dismiss Le-Vel's Petition and award MacFarland costs, attorneys' fees, and other expenses incurred in defending this action." Also, MacFarland's motion to dismiss addressed each of the complained-of statements in turn. Further, as to LeVel's assertion that it was entitled to a "presumption of general damages" respecting its defamation claim, MacFarland stated in part (1) presumed damages are proper in defamation per se cases only when the speech is not public or the plaintiff proves actual malice and (2) neither of those circumstances is present in this case.

         In its response to MacFarland's motion to dismiss, Le-Vel asserted in part that the "commercial nature" of MacFarland's speech in question defeats his motion on two grounds: (1) "[f]irst, the commercial nature of his speech removes it from the definition of 'free speech' under the TCPA, such that the statute does not apply, " and (2) "[s]econd, his statements fall squarely under the TCPA's exception for commercial speech under Section 27.010(b)."[4] Further, Le-Vel stated in its response (1) "even if MacFarland could shift his burden to Le-Vel to show a prima facie case, by clear and specific evidence, for each essential element of its two claims, Le-Vel easily meets that burden"; (2) the Texas Supreme Court has "stated without qualification that general damages are presumed in defamation per se cases"; and (3) even if general damages are not presumed, Le-Vel is entitled to "nominal" damages "without any need for evidence." Additionally, Le-Vel asserted (1) "a motion to dismiss is not a 'pleading' . . . so the factual assertions contained therein are not considered 'competent evidence under the TCPA'" and (2) because the exhibits attached to MacFarland's motion were unverified, those exhibits could not be considered in deciding the motion.

         Attached to Le-Vel's response to the motion to dismiss were affidavits of Jeffrey Prudhomme, [5] Le-Vel's legal counsel, and Drew Hoffman, [6] chief operating officer of Le-Vel. Exhibits attached to Prudhomme's affidavit included printouts of (1) the original and edited versions of the Article; (2) several other blog posts created by MacFarland on his website, including one titled "Is Every MLM a Scam?"; (3) numerous comments purportedly posted on MacFarland's website by readers of the articles[7]; and (4) responses to those comments posted by MacFarland.[8] Exhibits attached to Hoffman's affidavit included (1) a copy of Le-Vel's "Policies and Procedures" and (2) five emails to "Le-Vel Compliance."[9]

         Following a hearing on MacFarland's motion to dismiss, [10] MacFarland filed a reply to Le-Vel's response. As to his burden to show the TCPA applies in this case, MacFarland stated in his reply (1) "[t]he preponderance of the evidence shows that Le-Vel's claims are based on, related to, and in response to MacFarland's Post, which is unquestionably a communication about Le-Vel, a company who also unquestionably places goods, products, or services in the marketplace" and (2) "Le-Vel's Petition is all the 'competent evidence' MacFarland needs to establish that the TCPA applies." Further, as to whether the TCPA's "commercial speech" exemption is applicable, MacFarland stated (1) "[m]erely receiving compensation for services is not commercial speech"; (2) he is not "primarily engaged in the business of selling or leasing goods or services"; (3) even assuming, arguendo, that he is primarily engaged in the business of selling or leasing goods or services, "Le-Vel fails to meet its burden [to show] that the Post arises out of the sale or lease of goods or services that MacFarland allegedly peddles on his site" or "arise[s] out of a commercial transaction in which his intended audience is an actual or potential buyer or customer"; and (4) "Le-Vel has not produced any evidence, other than an objectionable affidavit from its counsel, to show that the commercial speech exemption applies to MacFarland's Post." Attached to MacFarland's reply was an affidavit by him.[11]

         Le-Vel filed a sur-reply to MacFarland's reply. Therein, Le-Vel restated several of its arguments above and, additionally, asserted in part (1) "Le-Vel's argument is that MacFarland's speech is commercial speech that proposes a commercial transaction" and (2) "MacFarland's Website is indeed a commercial endeavor specifically designed to attract visitors off of whom MacFarland directly makes money, and MacFarland is primarily engaged in the business of offering services to these potential customers through his "affiliate links, " for which he receives money." Attached to Le-Vel's sur-reply was a second affidavit of Prudhomme, [12] with exhibits that included pages from MacFarland's website.

         In a reply to Le-Vel's sur-reply, MacFarland asserted in part that he "is not primarily engaged in the business of selling or leasing goods or services." Under that statement, he listed the following points: (1) his website "is not commercial in nature and it is not used primarily for the business of selling or leasing goods or services"; (2) he "offers no goods or services for sale on his website"; (3) "[t]here is no way to purchase anything directly from his website"; and (4) he "has stated in his sworn affidavit that his 'business model, ' if there even is one at all, is to blog about personal finance, not make money." Additionally, as to damages, MacFarland asserted in part (1) "Le-Vel has plead no evidence, much less clear and specific evidence, as to what and how [sic] MacFarland's allegedly defamatory statements have been obviously hurtful to its business reputation, " and (2) "Le-Vel provides no support to show any harm to its business reputation that is directly attributable to MacFarland's Post or any of his allegedly defamatory statements."

         In an order dated May 26, 2016, the trial court denied MacFarland's motion to dismiss, stated that it found the motion was "frivolous or solely intended for delay, " and awarded Le-Vel its costs and reasonable attorney's fees. Pursuant to a request by MacFarland, the trial court issued findings of fact and conclusions of law. This interlocutory appeal timely followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12) (West Supp. 2016).

         II. MACFARLAND'S ISSUES

         A. Standard of Review and Applicable Law

         The Texas Legislature enacted the TCPA "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury."[13] See Tex. Civ. Prac. & Rem. Code Ann. § 27.002; see also In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding); Watson v. Hardman, 497 S.W.3d 601, 605 (Tex. App.-Dallas 2016, no pet.). The act states it "shall be construed liberally to effectuate its purpose and intent fully." Tex. Civ. Prac. & Rem. Code Ann. § 27.011. The TCPA's main feature is "a motion procedure that enables a defendant to seek the dismissal of frivolous claims and to recover attorneys' fees and sanctions." Watson, 497 S.W.3d at 605; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.003.

         Under the TCPA, "a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). "Exercise of the right of free speech" means "a communication made in connection with a matter of public concern." Id. § 27.001(3). "Matter of public concern" includes an issue related to (1) "health or safety"; (2) "environmental, economic, or community well-being"; (3) "the government"; (4) "a public official or public figure"; or (5) "a good, product, or service in the marketplace." Id. § 27.001(7).

         If the movant carries its initial burden, the nonmovant must then "establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c); see also Lipsky, 460 S.W.3d at 584. If the nonmovant fails to carry this burden, the trial court shall dismiss the "legal action." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)-(c). Further, even if the nonmovant carries its § 27.005(c) burden, the trial court shall dismiss the legal action if the movant establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. Id. § 27.005(d). "In determining whether a legal action should be dismissed under [the TCPA], the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a); see also id. § 27.006(b) ("On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.").

         A "prima facie case" refers to "evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." Lipsky, 460 S.W.3d at 590. It is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)).

         "Clear and specific evidence" of each essential element of a claim is more than "mere notice pleading." Id. A plaintiff must "provide enough detail to show the factual basis for its claim." Id. at 590-91. The TCPA's requirement of proof by clear and specific evidence does not "impose an elevated evidentiary standard, " does not "categorically reject circumstantial evidence, " and does not "impose a higher burden of proof than that required of the plaintiff at trial." Id. at 591.

         If the court orders dismissal of "a legal action" under the TCPA, the court shall award to the moving party (1) "court costs, reasonable attorneys' fees, and other expenses incurred in defending against the legal action as justice and equity may require" and (2) "sanctions against the party who brought the legal action as the court determines sufficient." Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). Alternatively, if the court finds the motion to dismiss is frivolous or solely intended to delay, the court "may award court costs and reasonable attorney's fees to the responding party." Id. § 27.009(b).

         Section 27.010 of the TCPA describes several exemptions from the act. Specifically, that section states in part 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 an insurance product, . . . or a commercial transaction in which the intended audience is an actual or potential buyer or customer." Id. § 27.010(b). The nonmovant bears the burden of proving a statutory exemption. See Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex. App.-Dallas 2013, pet. denied).

         Pursuant to section 51.014(a)(12) of the Texas Civil Practice and Remedies Code, a person may appeal from an interlocutory order of a trial court that denies a motion to dismiss filed under section 27.003. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12). We review de novo the trial court's determinations that the parties met or failed to meet their section 27.005 burdens. Watson, 497 S.W.3d at 605; Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 (Tex. App.-Dallas 2015, pet. denied). Also, we also review de novo questions of statutory construction. See Better Bus. Bureau of Metro. Dallas, Inc., 402 S.W.3d at 304-05; Moldovan v. Polito, No. 05-15-01052-CV, 2016 WL 4131890, at *3 (Tex. App.-Dallas Aug. 2, 2016, no pet.) (mem. op.).

         B. Application of Law to Facts

         1. Denial of MacFarland's Motion to Dismiss Pursuant to TCPA

         In his first issue, MacFarland asserts the trial court erred by denying his motion to dismiss pursuant to the TCPA. In addressing that issue, we necessarily consider MacFarland's fourth through tenth issues, all of which are essentially sub-issues of his first issue.

         a. Exercise of Free Speech

         We begin with MacFarland's fourth issue, in which he asserts the trial court erred by concluding he did not meet his initial burden under the TCPA to show by a preponderance of the evidence that this lawsuit is an action based on, relating to, or in response to his exercise of the right of free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). MacFarland contends Le-Vel's first amended petition (1) "clearly indicate[s] that Appellee's suit is based on MacFarland's Post in which he discusses Le-Vel, its products, and its business model" and (2) "admits" that Le-Vel's products are "sold in the marketplace." According to MacFarland, the requirements of section 27.005(b) were thus satisfied.

         Le-Vel contends (1) "under Texas law, when a defendant's speech is really an attempt to attract potential customers, it serves a commercial purpose and is not a matter of public concern, " and (2) "the commercial nature of MacFarland's speech removes it from the definition of 'free speech' under the TCPA, such that the statute does not apply." The sole authority cited by Le-Vel in support of that position is Miller Weisbrod, L.L.P. v. Llamas-Soforo, No. 08-12-00278-CV, 2014 WL 6679122, at *6 (Tex. App.-El Paso Nov. 25, 2014, no pet.).

         Miller Weisbrod involved a lawsuit filed by an ophthalmologist, Jorge Llamas-Soforo, against a law firm and two of the firm's individual attorneys, Lawrence Lassiter and Les Weisbrod. See id. at *1. Llamas contended television commercials created by the defendants encouraging former patients of Llamas to contact the law firm if they were left blind by treatment were slanderous, defamatory, and disparaging. Id. The defendants filed a motion to dismiss pursuant to the TCPA. The trial court held a hearing that it limited to two issues: (1) whether the motion was timely filed in accordance with the TCPA and (2) whether Lassiter and Weisbrod were "entitled to protection under TCPA or if they were exempt under 27.010(b)." Id. at *2. Following that hearing, the trial court denied the motion, ruling that Lassiter and Weisbrod were not entitled to protection under the TCPA because the exemption set out in section 27.010(b) applied. Id. The court of appeals affirmed. Id. at *1.

         The court of appeals observed that "[i]n their only issue, [Lassiter and Weisbrod] contend the trial court erred in finding they are 'primarily engaged in the business of selling or leasing goods or services' and are not afforded the protection of the TCPA, pursuant to the exclusion set out in Section 27.010(b)." Id. at *6. Specifically, Lassiter and Weisbrod argued in part that "'a lawyer is secondarily . . . engaged in selling services, ' but it is not a 'lawyer's primary business.'" (emphasis original). Id. The court of appeals concluded (1) "each case must be evaluated on its individual merits"; (2) the television commercial in question was created, not as a "matter of public concern, " but primarily to attract clients allegedly injured by Llamas; (3) the attorneys' speech "arose from the sale of their legal services to potential customers"; and (4) the trial court did not err in finding the advertisements were commercial speech and, thus, exempt from the protection of the TCPA pursuant to section 27.010(b). Id. at *9.

         The court of appeals in Miller Weisbrod did not address whether the movants in that case had shown by a preponderance of the evidence that the legal action in question was based on, related to, or in response to the movants' exercise of free speech pursuant to section 27.005(b). See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Therefore, that case is inapposite respecting whether, in the case before us, MacFarland satisfied his section 27.005(b) burden. LeVel cites no other authority, and we have found none, to support its position that "under Texas law, when a defendant's speech is really an attempt to attract potential customers, it serves a commercial purpose and is not a matter of public concern." Further, at least one Texas court has specifically rejected an argument that application of the TCPA is precluded in "lawsuits relating to commercial speech." BBB of Metro. Houston, Inc. v. John Moore Serv., Inc., 441 S.W.3d 345, 353-54 ((Tex. App.-Houston [1st Dist.] 2013, pet. denied) (concluding "broadly defined references to speech rights" in TCPA section 27.001 did not support inference that only "limited subclass" of communications made in connection with issue related to product or service is protected); see also BBB of Metro. Dallas, 402 S.W.3d at 308 (term "matter of public concern" in TCPA is not ambiguous and must be enforced as written, without any limitation not stated therein); Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *5 (Tex. App.-Austin Apr. 11, 2014, pet. denied) (mem. op.) (website post stating negative comments about BCG and other companies owned by BCG's owner constituted matter of public concern because post related to service in marketplace). Additionally, a plaintiff's own live pleading can satisfy a movant's 27.005(b) burden. See Watson, 497 S.W.3d at 607-08; Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.-Austin 2015, no pet.) (TCPA does not require movant to present testimony or other evidence to satisfy section 27.005(b) burden); see also Tex. Civ. Prac. & Rem. Code Ann. § 27.006.

         The record shows Le-Vel's first amended petition describes (1) its marketing and selling of "products" in the marketplace and (2) communications by MacFarland "in connection with" an "issue related to" Le-Vel's products in the marketplace. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001(3), 27.001(7). On this record, we conclude MacFarland satisfied his section 27.005(b) burden. Id. § 27.005(b); Watson, 497 S.W.3d at 607-08; see also Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (construing TCPA requires looking to statute's plain language).

         We decide in favor of MacFarland on his fourth issue.

         b. Applicability of TCPA "Commercial Speech" Exemption

         In his fifth issue, MacFarland contends the trial court erred by concluding Le-Vel met its burden to show the "commercial speech" exemption described in TCPA section 27.010(b) is applicable in this case. According to MacFarland, (1) Le-Vel "has provided no credible evidence" to support its position that MacFarland "is primarily engaged in the business of selling services"; (2) "[t]he complained of statements have nothing to do with MacFarland's alleged commercial enterprise"; and (3) "[t]he intended audience is the general public, not potential customers."

         Le-Vel argues, in part, (1) "MacFarland's speech is commercial speech that proposes a commercial transaction: MacFarland wrote the article to attract potential customers to whom he proposes a commercial transaction whereby they sign up for a financial tool, and he gets paid, " and (2) "[w]ebsite visitors and Article readers are not strangers with whom MacFarland wants to share information about Le-Vel, " but rather "they are targets-potential customers with whom he aims to establish a direct financial relationship, and with whom he intends to consummate a sale, or paid referral, just like in Miller Weisbrod." Additionally, Le-Vel asserts the requirements of TCPA section 27.010(b) have been satisfied because "Le-Vel brought its legal action against MacFarland, who is primarily engaged in the business of selling services through his financial referrals, and whose statements in the Article arise out of a commercial transaction in which the intended audience is an actual or potential customer." In support of those assertions, Le-Vel cites the affidavits of Prudhomme described above and exhibits attached thereto.

         In his reply brief in this Court, MacFarland argues (1) the Post "does not arise out of a commercial transaction" and (2) "[s]imply because MacFarland profits off of portions of his website does not, in and of itself, render his speech in the Post 'commercial speech that proposes a transaction.'" Further, MacFarland contends this case is "analogous" to Moldovan, 2016 WL 4131890, a case decided after the filing of the parties' initial briefs in this case.

         In Moldovan, Neely and Andrew Moldovan hired Andrea Polito Photography, Inc. ("APP') to photograph their wedding. Neely was the owner of a for-profit company, A Complete Waste of Makeup, LLC, which "represent[s] various social media accounts for businesses." Id. at *1. Additionally, Neely authored a blog that generated revenue "[t]hrough sponsored posts and through a blog course" taught by Neely. Id. Specifically, as to the sponsored posts, (1) companies sent Neely products that she reviewed in posts she published on her blog; (2) she also promoted the brands on Twitter, Facebook, and Instagram; and (3) after the sponsoring company reviewed the posts, it compensated Neely for her services with payments made to Neely individually. Id. The number of daily hits to her blog was relevant to the amount of money she received from her sponsors-i.e., the more hits on her blog, the higher her compensation. Other factors affecting her compensation included the number of her followers on Facebook, Instagram, Twitter, and other social media accounts linked to her blog. Id.

         After the Moldovans' wedding, a dispute arose over what items were included in the photography package purchased by the Moldovans from APP. The Moldovans contacted the local NBC news affiliate and invited a reporter to their home for an interview. Id. at *2. The resulting news story aired on television and was published on the news affiliate's website. The story stated that, according to the Moldovans, APP was requiring them to pay additional amounts for items they had already purchased under their contract and was "holding their pictures hostage" until such payments were made. Id. That news story "went viral" and received comments from viewers around the world. Then, the Moldovans published the story on social media and encouraged their social media contacts to view the story, share negative information about APP and its owner, Andrea Polito, and use photographers other than Polito and APP. Id.

         Polito and APP filed a lawsuit against the Moldovans, alleging defamation, business disparagement, tortious interference with prospective clients, and conspiracy. Id. The Moldovans moved to dismiss the action pursuant to the TCPA. The trial court denied that motion and "found" in its order (1) Neely "is primarily engaged in the business of selling social media services through her personal blog, which exempts her statements from coverage" under TCPA section 27.010(b), and (2) alternatively, Polito and APP "have proven by clear and specific evidence a prima facie case of each element of their claims."

         On appeal to this Court, the Moldovans contended in part there was no evidence the commercial speech exemption to the TCPA was applicable. First, this Court addressed the plaintiffs' argument that by publicizing the dispute, Neely sought to increase the number of readers of her blog so that she could charge more for her sponsored posts, and thus "the Moldovans' statements were not a protected review of APP's services, but rather arose out of the marketing and sale of Neely's own blogging and social media services to her customers." Id. at *4. This Court rejected that argument. In doing so, this Court stated, in part, that although Neely's posts "may have had the effect of increasing sales for her business, " the posts "were not about Neely's business, " but rather "were about her dispute with Polito and APP." Id. Second, this Court addressed whether the statements in question arose out of "a commercial transaction in which the intended audience is an actual or potential customer." Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b)). This Court reasoned (1) "Neely's 'actual potential buyer[s] or customer[s]' are companies that wish to purchase favorable social media reviews of their products, not the readers of the blog who pay nothing to Neely, " and (2) "Neely's intended audience for her posts about Polito and APP was the general public, specifically persons seeking a wedding photographer, not entities seeking social media services." Id. Therefore, this Court concluded the commercial speech exemption was inapplicable. Id.

         In the case before us, even assuming without deciding that MacFarland is primarily engaged in the business of selling or leasing goods or services, we cannot agree with Le-Vel's position that the nature of the speech in question is "just like in Miller Weisbrod." As described above, (1) Miller Weisbrod involved television commercials created by attorneys for the purpose of locating potential clients with negligence claims against a specific doctor and (2) the court of appeals in that case concluded the attorneys' speech "arose from the sale of their legal services to potential customers." See 2014 WL 6679122, at *9. Unlike the case before us, Miller Weisbrod did not involve a website, blog, or advertising links. Rather, we find Moldovan instructive. See Moldovan, 2016 WL 4131890, at *4. Like the complained-of statements in Moldovan, MacFarland's Post in the case before us "may have had the effect" of increasing MacFarland's sales of services, but was "not about" MacFarland's business of selling services. See Moldovan, 2016 WL 4131890, at *4. Further, to the extent Le-Vel contends section 27.010(b) is applicable based on MacFarland's placement of two "notes" within the Article that functioned to promote certain financial services companies and could result in payment to MacFarland if readers purchased services through links on his website, we cannot agree with Le-Vel's position that the ...


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