BBB Wins MTD in DTPA Case Due to TCPA

The Better Business Bureau of Metropolitan Dallas may end up being the single biggest beneficiary of the Texas Citizens Participation Act.  For the third time in the last month, the Dallas Court of Appeals has sided with the BBB in an appeal arising out of a motion to dismiss under the TCPA. In this instance, Wholesale TV and Radio Advertising, LLC sued for business disparagement, fraud, negligent misrepresentation, and DTPA claims after the Bureau gave Wholesale an F rating. The trial court granted the Bureau’s motion to dismiss, and the court of appeals affirmed. The court rejected Wholesale’s argument that the TCPA did not apply to false commercial speech, relying on its recent BH DFW and Ward opinions for the proposition that the TCPA covers speech that relates to “a good, product, or service in the marketplace.” That meant the burden was on Wholesale to come forward with prima facie evidence of each element of its claims. However, the court concluded that Wholesale had failed to adequately brief those issues on appeal, omitting any discussion of one or more of the elements of each of its claims. The court therefore affirmed both the trial court’s dismissal of Wholesale’s entire case and its award of $15,999 in attorney fees to the BBB.

Wholesale TV & Radio Advertising, LLC v. Better Business Bureau, No. 05-11-01337-CV