                                                                                                                  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
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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
