How to Dismiss a Claim Under the TCPA

The much-maligned TCPA, even after amendments that significantly restricted its scope, is still a powerful tool in a proper case. In Austin v. Amundson:

• The TCPA applied to the communications at issue because “TCPA case law is clear that criminal acts are matters of public concern”;
• Malice, a necessary element of the plaintiff’s reputational claims, was not established by clear and convincing evidence; particularly when a key police report “‘advised’ the police department the parties had ‘… ongoing civil issues since 2016′”;
• As to other claims, falsity was not established when, among other matters, a police department did not more than close a case without further action, making “no finding that [the party] did not drive recklessly”;
• And a third set of claims, about allegedly derogatory statement to customers, were “[m]issing … the facts of when, where, and what was said”.

The Fifth Court thus reversed the denial of the defendants’ motion to dismiss, rendered judgment on the claims that it addressed, and remanded for consideration of fee-related matters as potentially required by the statute. No. 05-22-00066-CV (Nov. 15, 2022) (mem. op.).