Background: Departing-Employee Dispute and Customer Communications

Local Marketing v. Bennett arose from a departing-employee dispute in which marketing company Local Marketing, Inc. sued former executives and employees in Harris County district court, alleging they formed a competing marketing company using Local's trade secrets and in breach of employment contracts. Following removal to the Texas Business Court, defendant Heidi Jo Mcivor and Mcivor Marketing, LLC countersued for defamation and tortious interference with business relations. The counterclaims were based on letters Local sent to its former, actual, or prospective customers—customers that had become the defendants' customers—describing a temporary restraining order entered in the Harris County litigation.

The Dispute: Whether the TCPA Applies to Litigation-Related Customer Letters

Local moved to dismiss the counterclaims under the Texas Citizens Participation Act (TCPA), Texas's anti-SLAPP statute. The central question was whether Local's customer letters constituted communications "pertaining to" a judicial proceeding under Section 27.001(4)(A)(i), thereby triggering TCPA protection. The letters attached the TRO, cited the cause number and caption of the Harris County lawsuit, and informed customers that Mcivor was "specifically restrained and enjoined" from contacting Local's employees "as well as soliciting [Local's] customers. This includes you." Critically, the actual TRO contained only employee-solicitation and nondisclosure restraints—not the customer-solicitation restraint Local described in its letters.

The Court's Analysis: Communications Directly Related to Litigation

Judge Sharp applied the TCPA's three-step framework from Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021). At step one, the court held that Local's letters were unquestionably TCPA "communications" and that Mcivor's counterclaims were "wholly based on and in response to these letters, which are the 'gravamen of the claim[s].'" The court then addressed whether the letters "pertained to" the judicial proceeding, noting that the TCPA extends protection beyond communications "in" a proceeding to those "pertaining to" it. Applying the ordinary meaning of "pertaining to" as "relating directly to or concerning or having to do with," the court found the letters directly related to the lawsuit:

Here, the letters attached the temporary restraining order from, cited the cause number and caption of, and described the ruling in, the Harris County lawsuit. The letters informed the customers that Mcivor was "specifically restrained and enjoined, until March 3, 2026, and, potentially, further into the future, from 'contacting or soliciting LMI's current employees, consultants, or independent contractors,' as well as soliciting [Local's] customers. This includes you."

At step two, the court found Mcivor failed to meet its prima facie burden. Damages are an essential element of both defamation (citing In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015)) and tortious interference claims. The court held that "Mcivor did not meet its burden on damages and did not create a rational inference of defamation per se." The opinion notes that while Mcivor need only present "the minimum quantum of evidence necessary to support a rational inference" that its factual allegations are true under Borgelt v. Austin Firefighters Ass'n, 692 S.W.3d 288, 311 (Tex. 2024), it failed to do so. The court granted the motion to dismiss and awarded attorney's fees to Local.

Why It Matters: TCPA Protection for Litigation-Related Business Communications

Local Marketing provides important guidance on the scope of TCPA protection in commercial disputes, particularly for communications to third parties about ongoing litigation. The decision confirms that letters to customers describing court proceedings—even when sent outside the courtroom—fall within the TCPA's "pertaining to" language when they directly relate to and concern the litigation. For commercial litigators, the case illustrates both the breadth of TCPA protection for litigation-related communications and the stringency of the "clear and specific evidence" standard at step two. Practitioners defending against counterclaims based on litigation communications should consider TCPA motions early, while those asserting such counterclaims must marshal specific evidence of damages and other essential elements to survive dismissal. The case also highlights a tactical consideration: describing TRO terms in customer communications may trigger TCPA protection even when the described restraints were sought but not obtained, though such misstatements may create separate liability risks outside the TCPA framework.