Schlumberger Limited and Schlumberger Technology Corporation v. Charlotte Rutherford

ACCEPTED

01-14-00776-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

THOMAS C. WRIGHT 5/21/2015 1:33:25 PM

CHRISTOPHER PRINE

wright@wrightclose.com CLERK

Board Certified

Civil Trial Law and Civil Appellate Law

Texas Board of Legal Specialization

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

May 21, 2015 5/21/2015 1:33:25 PM

CHRISTOPHER A. PRINE

Court of Appeals Clerk

First Appellate District of Texas

Attn.: Christopher A. Prine, Clerk

301 Fannin Street

Houston, Texas 77002-2066

Re: No. 01-14-00776-CV; Schlumberger Limited and Schlumberger

Technology Corporation v. Charlotte Rutherford

Dear Mr. Prine:

Charlotte Rutherford provides this response to Schlumberger Limited and

Schlumberger Technology Corporation’s letter discussing the Dallas Court of

Appeals’ recent anti-SLAPP decision in ExxonMobil Pipeline Co. v. Coleman, No.

05-14-00188-CV. Please accept this letter for filing in the above-referenced cause,

and distribute same to the panel for its consideration.

There is more than one reason why the Coleman decision should not

influence the result in this case, the most obvious of which is Coleman is not

binding authority on this Court. And it should not be followed. Coleman is

contrary to the Supreme Court’s recent admonition against amending the TCPA by

judicial fiat. See Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025, at *1

(Tex. Apr. 24, 2015) (per curiam) (“A court may not judicially amend a statute by

adding words that are not contained in the language of the statute.”). The TCPA

plainly and unambiguously defines the “right of association” to mean “a

communication between individuals who join together to collectively express,

promote, pursue, or defend common interests.” TEX. CIV. PRAC. & REM. CODE

§ 27.001(2). As the Dallas Court itself expressly recognized, it departed from the

statute’s plain language in “read[ing] a public-participation requirement into the

[statutory] definition.” See Coleman, slip op. at 10–11.

The Dallas Court’s extra-textual policy rationale is especially misguided

insofar as the TCPA does contain a “public concern” requirement—but only for

claims that implicate “free speech.” Compare TEX. CIV. PRAC. & REM. CODE

WRIGHT & CLOSE, LLP

ONE RIVERWAY, SUITE 2200, HOUSTON, TEXAS 77056  TEL: 713.572.4321  FAX: 713.572.4320

Court of Appeals

First Appellate District of Texas

Attn.: Christopher A. Prine, Clerk

May 21, 2015

Page 2

§ 27.001(3) (including “public concern” requirement in defining “free speech”), with

id. § 27.001(2) (including no “public concern” limitation in defining “right of

association”). The Legislature’s decision to define the right of free speech to include

a “public concern” limitation is strong evidence it intended to impose no such

limitation on the right of association, which is defined in the immediately preceding

subparagraph. See Better Bus. Bureau of Metro Houston, Inc. v. John Moore Servs.,

Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)

(properly refusing to read omitted words into definition of statutory rights

protected by TCPA); see also Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535,

540 (Tex. 1981) (recognizing rule of construction that every word excluded from

statute must be presumed to have been excluded for purpose).

The Dallas Court relied on the “absurd results” exception to the primary rule

of statutory construction requiring courts to rely on the plain meaning of the words

actually used.1 See City of Houston v. Bates, 406 S.W.3d 539, 543 (Tex. 2013).

Less than a year ago, the Supreme Court cautioned that “[t]he absurdity safety

valve is reserved for truly exceptional cases.” Jaster v. Comet II Constr., Inc., 438

S.W.3d 556, 568 (Tex. 2014); see also Brazos River Auth. v. City of Graham, 354

S.W.2d 99, 109 n.3 (Tex. 1962) (“[O]perating as we are under a strict theoretical

division of governmental powers, it would take a bit of doing on the part of the

judiciary to say in the absence of ambiguous and uncertain statement or patent or

manifest absurdity, that the Legislature intended something different from the clear

import of the words chosen by it.”). Here, application of the TCPA is not

exceptional and does not justify a departure from this Court’s practice of careful

textual commitment. If the Legislature intended the TCPA to have a narrower

application than its plain language supports, the Legislature can easily solve the

problem. See Jaster, 438 S.W.3d at 574 (Willett, J., concurring) (observing that, by

sticking to strict statutory construction, “judges do more to improve the quality of

the law than they ever could by decamping from text to hunt the snark of unvoiced

legislative purpose.”)

1

Coleman also relied on Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.—Houston

[1st Dist.] 2014, no pet.), placing particular weight on statements in the concurring opinion.

See Coleman, slip op. at 12. The Cheniere majority did not read the TCPA as narrowly as the

concurrence or the Dallas Court, but even the majority’s view of the TCPA is foreclosed by

the Supreme Court’s recent decision in Lippincott.

Court of Appeals

First Appellate District of Texas

Attn.: Christopher A. Prine, Clerk

May 21, 2015

Page 3

Coleman is even more distinguishable on its facts. Rutherford has not been

sued for private, internal communications having no nexus to a public purpose.

Rutherford has been sued for alleged communications regarding enforcement of

Dynamic 3D’s patent rights through the filing of a patent lawsuit in federal court.

Schlumberger’s infringing product—the Petrel software—is a product or service in

the marketplace, and thus qualifies as a matter of public concern. TEX. CIV. PRAC.

& REM. CODE § 27.001(7)(E) (defining “public concern” to include any “issue

related to . . . a good product, or service in the marketplace”). The Dallas Court

would recognize as much. See, e.g., Better Bus. Bureau of Metro. Dallas, Inc. v. BH

DFW, Inc., 402 S.W.3d 299, 308 (Tex. App.—Dallas 2013, no pet.) (online review

of swimming pool builder was “public concern” under TCPA); Avila v. Larrea,

394 S.W.3d 646, 655 (Tex. App.—Dallas 2012, pet. denied) (attorney’s legal

services involve “public concern” under TCPA).

Moreover, Dynamic 3D’s patent rights are a public concern as a matter of

constitutional law, see U.S. CONST. art. I, § 8, cl. 8, and “it is the public interest

which is dominant in the patent system.” Mercoid Corp. v. Mid-Continent Inv. Co.,

320 U.S. 661, 665 (1944); see also i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d

831, 863 (Fed. Cir. 2010) (patent suits implicate public interests of consumers,

licensees, and manufacturers), aff’d, 131 S.Ct. 2238 (2011); Paul E. Hawkinson

Co. v. Dennis, 166 F.2d 61, 63 (5th Cir. 1948) (“[T]his is a patent suit and as such

there is a public interest involved . . . .”). Consequently, even under the Dallas

Court’s errant reading of the TCPA, Schlumberger’s claims for breach of fiduciary

duty, misappropriation of trade secrets, conversion, and civil theft were properly

dismissed, and the contract claim should have been dismissed.

Respectfully Submitted,

/s/ Thomas C. Wright

Thomas C. Wright

Counsel for Charlotte Rutherford

Court of Appeals

First Appellate District of Texas

Attn.: Christopher A. Prine, Clerk

May 21, 2015

Page 4

cc: Via Electronic Service

Sean D. Jordan

Kent C. Sullivan

Danica L. Milios

Peter C. Hansen

SUTHERLAND ASBILL & BRENNAN LLP

600 Congress Avenue, Suite 2000

Austin, Texas 78701

Craig Smyser

Land Murphy

Justin Waggoner

SMYSER KAPLAN & VESELKA, LLP

700 Louisiana Street, Suite 2300

Houston, Texas 77002

Counsel for Schlumberger Limited and

Schlumberger Technology Corporation