Promising Special Exception for Unfair-Competition Case

Footnote 3 in the recent en banc majority opinion from Steward Health Care System v. Saidara suggests a promising special exception in cases with general allegations about unfair competition:

Appellants do not specify the branch of “unfair competition” they allege. See, e.g., James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation, 50 BAYLOR L. REV. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 cmt. a (AM. LAW INST. 1995) (stating that unfair competition includes torts for misappropriation, infringement, unjust enrichment, and breach of confidence, but not breach of contract, breach of the duty of loyalty owed by an employee or other agent, or breach of confidence not involving a trade secret). Rather, they generally refer to their claim as “Unfair Competition” and contend that “by misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General and thereby inducing Steward to make Southwest General’s most sensitive business information available to Prospect senior executives and ultimately all of Prospect, Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters.”