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Global Tel*Link Corp. v. Securus Technologies, Inc.

Court of Appeals of Texas, Fifth District, Dallas

July 31, 2017

GLOBAL TEL*LINK CORPORATION, Appellant
v.
SECURUS TECHNOLOGIES, INC., Appellee

         On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-05352

          Before Justices Bridges, Myers, and Brown

          MEMORANDUM OPINION

          ADA BROWN JUSTICE.

         Global Tel*Link Corporation ("GTL") moved to dismiss a suit brought by Securus Technologies, Inc. ("Securus") based on the provisions of the Texas Citizen's Protection Act ("TCPA"). Securus responded asserting the commercial speech exception applied to its suit or, in the alternative, it had clear and convincing evidence to support the claims asserted. Following a hearing, the trial court denied GTL's motion. In this interlocutory appeal, GTL asserts the trial court abused its discretion in denying the motion because: (1) Securus's suit was based on communications protected by the TCPA; (2) the commercial speech exception did not apply to those communications; and (3) Securus did not present clear and convincing evidence to support its claims. For the following reasons, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

         Background

         Securus and GTL provide telephone and video communications system services at correctional facilities for the use of inmates and law enforcement agencies. The services are generally provided pursuant to multi-year contracts that are awarded based on open public bidding. Securus and GTL own patents to protect intellectual property related to such services and are currently involved in litigation against each other in federal court related to their respective patents. Amongst GTL's claims in that litigation are its contention that Securus infringes on two GTL patents, the "'243 patent, " which involves technology related to video visitation with inmates and the "'816 patent, " which involves technology related to inmate phone calls. Securus denied that it infringes on either patent and also challenged the validity of both patents. In connection those challenges, Securus filed petitions for inter partes review (IPR) in the U.S. Patent and Trademark Office (PTO) requesting the PTO to reexamine the GTL patents and cancel various of the patents' claims.[1]

         The PTO agreed to review Securus's challenge to GTL's '243 patent, but after doing so, rejected its challenge. After the PTO's ruling, GTL sent, via email, an "Important Industry News Alert" to members of law enforcement, correctional facility officers, and their representatives announcing the PTO's ruling. GTL said the ruling cleared the way for it to pursue its patent infringement claims against Securus and seek injunctive relief and damages. GTL further said, if granted, an injunction "could have ramifications for customers using the infringing technology."

         GTL subsequently secured another favorable ruling from the PTO. Specifically, the PTO refused to reexamine GTL's '816 patent because Securus had failed to demonstrate a reasonable likelihood it would prevail on its challenge. GTL then sent another email, again titled "Important Industry News Alert." That email similarly stated the PTO's ruling cleared the way for GTL to pursue its patent infringement claims and seek an injunction. GTL noted that "if granted" an injunction would prohibit Securus from using GTL's "patented technologies . . . at all facilities where infringement is occurring." GTL added that "they were only months away from finally being able to show a jury how Securus infringes on the GTL patents."

         Securus sued GTL for defamation and business disparagement claiming the emails falsely represented that GTL's victory in the patent litigation was "assured" and that those receiving the emails were using infringing technologies. Securus also asserted a claim for tortious interference with existing contracts asserting GTL sent the emails to its customers in order to induce them to breach their contracts with Securus.

         GTL filed a motion to dismiss under the TCPA asserting Securus's claims were all based on communications protected by that Act. Secures responded the "commercial speech exception" applied to GTL's communications. In the alternative, it asserted it had clear and specific evidence supporting each element of its claims. Following a hearing, the trial court denied GTL's motion without specifying its reasons. GTL appeals.

         Texas Citizens Participation Act

         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." 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 legislature has instructed courts to construe the TCPA liberally to effect its purpose and intent fully. Tex. Civ. Prac. & Rem. Code Ann. § 27.011.

         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." Id. at § 27.005(b). The TCPA defines the "exercise of the right to petition" to include communications in or pertaining to a judicial proceeding, other official proceedings to administer the law or before a department of the federal government. See id. at § 27.001. If the movant establishes a suit is based on protected communications, the trial court shall dismiss the action unless the non-movant establishes by "clear and specific evidence a prima facie case for each essential element of the claim in question." Id. at § 27.005(c); see also Lipsky, 460 S.W.3d at 584.

         The TCPA also provides certain actions are exempt from its provisions, one of which courts refer to as the ...


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