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Clean Energy and Clean Energy Fuels Corp. v. Trillium Transportation Fuels, LLC

Court of Appeals of Texas, Fifth District, Dallas

July 9, 2019

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

          Before Justices Bridges, Brown, and Nowell

          MEMORANDUM OPINION

          DAVID L. BRIDGES, JUSTICE.

         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:

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 ...

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