The Texas Citizens Participation Act (“TCPA”) provides for expedited dismissal and interlocutory appeal from a court’s denial of  a motion to dismiss a suit that is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.  Tex. Civ. Prac. & Rem. Code § 27.002.  There are four exemptions from the application of the TCPA.  Under the “commercial speech exemption,” the TCPA does not apply to an action against a person primarily engaged in selling or leasing of goods or services if the statement arises out of the sale or lease of goods or services or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

In Moldovan v. Polito, No. 05-15-01052-CV (Tex. App.—Dallas Aug. 2, 2016), the Dallas Court of Appeals considered the limits of the commercial speech exception.  Newlyweds Neely Moldovan, a blogger, and Andrew Moldovan had a dispute with Andrea Polito and her company over the wedding photography package they purchased.  The dispute went “viral” after the Moldovans discussed their complaints on television and social media.  Polito and her company brought suit against the Moldovans for defamation per quod, defamation per se, business disparagement, tortious interference with prospective contracts, and civil conspiracy.

The trial court denied Moldovans’ motion to dismiss under the TCPA, finding that the commercial speech exemption applied and that Polito and her company proved by clear and specific evidence a prima facie case of each element of their claims while the Moldovans failed to prove their defenses.  In their interlocutory appeal, the Moldovans argued there was no evidence the commercial speech exception applied and the trial court erred by permitting live testimony at the hearing on the motion to dismiss.  With respect to the commercial speech exception, Polito contended the commercial speech exemption applied because Ms. Moldovan’s statements arose out of the marketing of her blogging and social media services and, by publicizing the dispute, Ms. Moldovan sought to increase her number of readers so she could charge more.

The court of appeals stated even if Polito’s assertions were true, she still must prove the statements arose out of a “commercial transaction in which the intended audience is an actual potential buyer or customer.”  Ms. Moldovan’s potential buyers or customers are those who wish to purchase social media reviews of their products, not blog readers.  The court recalled cases in which courts held that reviews by entities such as the better business bureau are communications made in connection with a matter of public concern, not commercial speech.  For the commercial speech exception to apply, “the statement must be made for the purpose of securing sales in the goods or services of the person making the statement.”  While Ms. Moldovan’s statements may have had the effect of increasing sales, the posts were about Polito and her company, not about Ms. Moldovan’s business.  Therefore, the commercial speech exception did not apply.  However, because Polito and her company met their burden to establish a prima facie case for each element of their claims and because the Moldovans did not establish each essential element of a defense, the trial court did not err by denying the Moldovans’ motion to dismiss.

Moldovan v. Polito, No. 05-15-01052-CV (Tex. App.—Dallas Aug. 2, 2016)