What is Commercial Disparagement in Texas Disparagement?

– Bradford T. Laney, Texas Litigation Attorney

Commercial/Business Disparagement:

Commercial/Business Disparagement (referred to hereafter as “Business Disparagement” is a legal tort (i.e., a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability).  Unlike a personal injury lawsuit, to win a case for Business Disparagement, you’ll need to be able to prove the following by a preponderance of the evidence (51%):

  1. The Defendant published disparaging words about the plaintiff’s economic interests;
  2. The words were false;
  3. The defendant published the words with malice; 
  4. The defendant published the words without privilege; and
  5. The publication caused special damages.

If you can prove all five of the elements above, then you may want to consider hiring an attorney and filing a lawsuit to recover damages for Business Disparagement. 

Pitfalls to Be Ready For:

Before you decide to pull the trigger on your lawsuit, you’ll want to iron out a few details.  Here is a brief list of things to think about.

Publication: You want to be able to prove that the Defendant published the disparaging statement to a third party.  Documentary proof of publication, through for example an email or an advertisement, is generally stronger than a he said/she said type of situation.

Disparaging Words About Your Business: You’ll want to make sure the disparaging words were about your economic interests and not about you directly.  Disparaging words about your economic interests are usually going to include words about your land, your financial position, or the character of your business.  If the words are about you directly, then you’ll want to pursue a defamation case instead of a Business Disparagement case.

Defendant Knew They were False: To satisfy the malice prong of this cause of action, you’ll need to be prepared to prove the defendant knew the statements were false. This can be a difficult thing to prove, which will usually require circumstantial evidence instead of a smoking gun admission.

Damages: If you can prove business disparagement, you may be entitled to recover damages for any economic injuries caused to you and possibly even exemplary damages in certain cases.

Two Year Statute of Limitations: You’ll want to file your lawsuit within two years of the date the disparaging statements were made.  If you do not file by this date, you will lose all of your rights to this claim.

Brad is a Texas litigation attorney, who has successfully litigated business disparagement and defamation claims in Texas state and federal courts. If you need help figuring out if you have a claim or defending against someone that has sued you, please do not hesitate to give Brad a call or email (713-297-1200, blaney@raleybowick.com). 


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