The Texas Business Court Issues Its First Published Opinion on a TCPA Motion to Dismiss

The Business Court of Texas recently issued what appears to be its first published opinion ruling on a motion to dismiss under the Texas Citizens Participation Act (“TCPA”). In Local Marketing, Inc. v. Bennett, 2026 Tex. Bus. 40, 2026 WL 1736039 (11th Div. June 15, 2026), the court granted Local Marketing’s (“Local”) partial motion to dismiss counterclaims brought by Heidi Jo McIvor and McIvor Marketing, LLC (together, “McIvor”) for defamation and tortious interference with business relations. See id. ¶¶ 1–2. The opinion provides a clear roadmap for practitioners considering the TCPA as a tool for early disposition of claims in the Business Court — and a reminder of why the TCPA can sometimes be more powerful than a Rule 91a motion.

The Case: A Departing-Employee Dispute

In this marketing industry case, Local alleged that former executives and employees formed a competing company using Local’s trade secrets and in breach of employment contracts. Id. McIvor filed counterclaims for defamation and tortious interference based on letters Local sent to its former, current, and anticipated customers informing them of a temporary restraining order and warning that McIvor was “specifically restrained and enjoined” from soliciting Local’s customers — a characterization McIvor contended was false, given that the TRO actually contained only employee-solicitation and nondisclosure restraints. See id. ¶¶ 2, 6, 11.

The Court’s Analysis

The court applied the TCPA’s familiar three-step framework. Id. ¶ 3. At step one, it found Local’s letters were “communications” that “pertained to” a judicial proceeding because the letters attached the TRO, cited the cause number and caption of the Harris County lawsuit, and described the court’s ruling. Id. ¶¶ 5–6. The court emphasized that the TCPA protects not only communications made in a judicial proceeding, but also those pertaining to one — and Local’s letters clearly fell within that broader protection. Id. ¶ 7.

At step two, the court concluded McIvor failed to meet its prima facie burden on damages. Id. ¶¶ 14–15. McIvor’s declaration that it “was damaged” was conclusory, and its only other evidence — that its owner spent time explaining the litigation to three customers — was no evidence of economic or noneconomic damages. See id. ¶¶ 15–16. The court noted McIvor cited “no damages model that would allow recovery for lost time,” observing the Fifth Circuit’s statement that “we are not aware of any tort that makes a person liable for wasting another’s time.” Id. ¶ 19 (quoting Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 825 (5th Cir. 2022)).

The court also rejected McIvor’s defamation per se theory, finding that a false statement about being enjoined from customer solicitation was “not uniquely injurious to the marketing profession” as required by Texas law for per se treatment. Local Marketing, 2026 Tex. Bus. 40,  ¶¶ 22–24.

Having dismissed the claims at the prima facie stage, the court declined to reach Local’s affirmative defense of judicial-proceedings immunity. Id. ¶ 28. It awarded Local the mandatory attorneys’ fee award of $18,010 and lifted the TCPA discovery suspension. Id.  ¶¶ 29–30.

Why the TCPA Is a Useful Tool Beyond Rule 91a

For litigators in the Business Court, this opinion highlights why the TCPA can be a more effective early-dismissal mechanism than Texas Rule of Civil Procedure 91a. Here are a few key advantages:

1. It looks beyond the pleadings. A Rule 91a motion challenges a cause of action based solely on the pleadings — it asks whether the claim has no basis in law or fact as pled. By contrast, the TCPA shifts the burden to the nonmovant to produce “clear and specific evidence” establishing “a prima facie case for each essential element of the claim.” Tex. Civ. Prac. & Rem. Code § 27.005(c). This means a defendant can force the plaintiff to put up or shut up — mere allegations in the petition are not enough to survive. As the Local Marketing court demonstrated, conclusory statements and general averments of loss will not clear the TCPA hurdle.

2. Mandatory attorneys’ fees. Unlike Rule 91a — which allows for an award of attorneys’ fees and costs but leaves it in the court’s discretion — the TCPA requires the court to award reasonable attorneys’ fees to a successful movant. Tex. Civ. Prac. & Rem. Code § 27.009(a)(1). This creates both a recovery mechanism for the movant and a meaningful deterrent against meritless claims targeting protected activity.

3. Automatic discovery stay. Upon filing a TCPA motion, discovery is automatically suspended, which prevents the nonmovant from using the discovery process to burden or harass the movant while the motion is pending. Tex. Civ. Prac. & Rem. Code § 27.003(c). This can be particularly valuable in cases where the opposing party’s claims appear designed to impose litigation costs rather than vindicate legitimate rights.

4. Interlocutory appeal rights. Unlike a denial of a Rule 91a motion — which generally is not independently appealable — a denial of a TCPA motion to dismiss is subject to interlocutory appeal as a matter of right. Tex. Civ. Prac. & Rem. Code § 27.008(a). This gives the movant an immediate path to appellate review without waiting for a final judgment, and it further stays trial court proceedings while the appeal is pending. Id. § 27.008(b). For defendants who believe a trial court has misapplied the TCPA framework, this right of immediate appeal is a significant procedural advantage that Rule 91a simply does not offer.

Key Takeaways

The Local Marketing opinion is significant not only for its substance but for the signal it sends: the Business Court will rigorously apply the TCPA’s evidentiary framework to weed out claims that lack prima facie support. Practitioners should take note that the Business Court expects claimants facing a TCPA challenge to put forward specific, non-conclusory evidence of damages — including a cognizable damages theory — or face dismissal with a mandatory fee award.

For practitioners with clients facing defamation, tortious interference, or similar claims arising from litigation-related communications, the TCPA remains a potent tool — and one that the Business Court has now shown it is prepared to enforce. But the tool is not without limits. The TCPA requires practitioners to file a motion within sixty days of service and exempts certain categories of commercial speech from its scope. Tex. Civ. Prac. & Rem. Code §§ 27.003(b), 27.010(b). If your team is considering whether and how the TCPA can help defend against a lawsuit, Foley & Lardner’s Texas attorneys can help chart a litigation path and determine whether the statute applies.