Empower Clinic Services, L.L.C. D/B/A Empower Pharmacy v. Samuel Pray

Opinion issued August 25, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-25-00410-CV ——————————— EMPOWER CLINIC SERVICES, L.L.C. D/B/A EMPOWER PHARMACY, Appellant V. SAMUEL PRAY, Appellee On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2024-85045 MEMORANDUM OPINION This is an appeal from the trial court’s denial of a motion to dismiss under the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. After Empower Clinic Services, L.L.C. d/b/a Empower Pharmacy (“Empower”) sued its former employee to enforce a noncompetition agreement and other claims, the former employee, Samuel Pray, countersued alleging retaliation under the federal False Claims Act, see 31 U.S.C. §§ 3729–3733, and antitrust violations under the Texas Free Enterprise and Antitrust Act of 1983 (“TFEAA”). See TEX. BUS. & COM. CODE §§ 15.01–.52. Empower moved to dismiss Pray’s counterclaims on the grounds that they were based on or in response to Empower’s exercise of the right to petition. Pray argued that the TCPA does not apply, his claims were statutorily exempt if it does apply, and in any event, he proffered clear and specific evidence sufficient to make a prima facie case as to each of his claims. The trial court denied the motion, and Empower appealed, challenging the trial court’s denial of its motion and failure to award monetary relief under the statute. We conclude that the TCPA applies to both the retaliation and antitrust claims, which are not statutorily exempt, and Pray failed to make a prima facie case for either claim. Thus, the trial court erred by denying Empower’s motion to dismiss. We reverse and remand for further proceedings. Background I. Empower hires Pray. Empower is a Houston-based compounding pharmacy that fills prescriptions for “tens of thousands of clinics across the country,” and employs “[o]ver 1,200 2 employees.” It is “the most advanced accredited 503A compounding pharmacy in the country and an FDA-registered 503B outsourcing facility.” Samuel Pray did not have a high school diploma, but he worked his way up in the pharmaceutical industry, beginning as a pharmacy technician in 2010 and eventually overseeing supply chain and logistics operations for several different pharmaceutical companies. In 2019, Pray formed PSW Group, LLC (“PSW”), a company that assists pharmaceutical companies with supply chain and logistics. In May 2022 Empower hired Samuel Pray to be its Director of Supply Chain. Empower alleged that it offered him “a six-figure starting salary; a $20,000 relocation bonus, the opportunity to earn an annual bonus in the amount of 12% of his annual salary; full health insurance benefits, a 401(k) plan; life and AD&D insurance, and paid time off.” Pray maintains that in addition to salary and benefits, his supervisor, Rob Hopkins, expressly authorized him to use PSW as a vendor to Empower. Pray asserts that this was part of the terms of his employment. II. Pray signs two noncompetition agreements. In May 2022, when Pray began working for Empower, he signed a Confidentiality and Non-Compete Agreement (“the May 2022 non-competition agreement”). The agreement recited that Pray, as an employee, would be “given access to Confidential and Proprietary Information relating to Empower’s business and affairs.” This agreement included a noncompetition provision that prohibited 3 Pray from “engag[ing] in the manufacture, sale, and/or distribution of the same or substantially similar pharmaceutical product lines, on behalf of any compounding pharmacy” for three years “in Houston, Texas and its surrounding counties.” The agreement also defined “prohibited activity,” which, among other things, included “contribut[ing] knowledge . . . . to an entity engaged in the same or similar business” as Empower, as well as “disclosure of trade secrets, proprietary information, or Confidential Information.” A couple of months later, Empower introduced an incentive compensation plan (the “Phantom Stock” plan). Pray accepted an award of Phantom Stock and contemporaneously signed a second “Confidentiality & Non-Compete” agreement that the parties have referred to as the July 22 noncompetition agreement. The restrictions in this agreement also ran for three years from the date of separation, and it prohibited future employment with 21 listed companies—including Revive Rx, LLC—anywhere in the United States. III. Pray resigns after two years. In a sworn declaration, Empower’s chief operating officer, Pejmon Jonathan Abrarpour, stated that Pray “was charged with and expected to actively participate in Empower’s process for ensuring its suppliers were properly vetted and its products met regulatory standards” and Empower’s standards. Abrarpour said: On a couple of occasions, Pray questioned the qualifications of a potential supplier or raised a question about regulatory compliance in 4  that capacity. At no point was Pray punished in any way for raising these concerns. That was precisely what Empower wanted and expected him to do. His concerns were appropriately received by Empower and were considered and addressed. Abrarpour recalled that “[f]or a brief period when its pre-existing vendors were unable to keep up with demand, Empower engaged Pray’s company, [PSW], to supply vials and stoppers (aka container closure components) to Empower.” He stated that when other vendors became available, Empower decided to stop purchasing from PSW because it was owned by an employee, not because of “Pray’s alleged reports of FDA violations.” Abrarpour stated in his declaration that around September 2023, several Empower employees left the company to start a competing business, which Empower alleged was done with “resources, opportunities, confidential information, and trade secrets belonging to Empower.” An internal investigation suggested that the departing employees had “conspired” with an Empower consultant as they formed the new business. In October 2023, Empower sued those individuals in federal court (the “Bio Filling case”). Two months later, Empower’s outside counsel in the case interviewed Empower employees, including Pray, to gather information for the pending lawsuit. Pray maintains that while he worked for Empower, he discovered some irregularities, including what he believed to be flagrant violations of FDA rules done to maximize profits. For example, he maintains that management instructed 5 him to buy low-cost noncompliant ingredients after an FDA audit. Pray maintains that Empower believed it had a window of time after the audit in which its actions would not be scrutinized. Pray asserts that he lost a promised promotion and that contracts with PSW were discontinued after he began telling upper management about the alleged FDA violations. He described the interview concerning the Bio Filling case as an interrogation and the working environment “toxic.” In his deposition, Pray said he agreed to stay on after initially announcing his intention to resign in July 2024, but by the end of August, “the relationship had deteriorated, and I just resigned.” Abrarpour stated that Empower did not fire Pray. According to Abrarpour, in July 2024, Pray announced that he was resigning to be closer to his family who did not live in Houston. Abrarpour said that Pray was interested in staying through the transition and in considering a remote working arrangement. Abrarpour denied hearing any complaints about retaliation or the working environment from Pray, saying: “He never said he was forced to resign because he had raised alleged FDA violations or because Empower had silenced him or created a hostile work environment.” IV. Empower discovers irregularities and sues Pray. Empower maintains that, after Pray left the company, “an internal investigation revealed that, during Pray’s tenure, he had directed the theft of 6 pharmaceutical products and caused Empower to engage in multiple financial transactions in which Pray had significant undisclosed financial interests to its [Empower’s] detriment.” Within days of his departure from Empower and allegedly in violation of the 2022 noncompetition agreements, Pray went to work for Revive Rx, LLC. In December 2024, Empower filed suit against Pray, PSW, and others. Empower sued Pray for breach of fiduciary duty, conversion, fraud, violations of the Texas Uniform Trade Secret Act, breach of contract, and civil conspiracy. V. Pray counterclaims, alleging retaliation and anticompetitive actions. Pray answered and pleaded counterclaims. The first 25 numbered paragraphs comprise the introduction and address Pray’s allegations of Empower’s FDA violations and retaliation against him. In paragraph 14, Pray stated: Soon after Mr. Pray confronted Empower executives about its illicit purchases of API [active pharmaceutical ingredients], Mr. Pray was unexpectedly hauled into a conference room in January 2024 with multiple internal investigators. Rather than investigating Empower’s purchase and use of adulterated API, Empower interrogated Mr. Pray about recent employees who left Empower to form a separate business. Empower recorded Mr. Pray’s responses. Empower’s motive was clear: instill fears into Mr. Pray and apparently try to gather ammunition against Mr. Pray if he continued to raise concerns about the adulterated API. Pray pleaded that another executive raised the same issues and was terminated within a week. Pray alleged that for several weeks after the January 2024 meeting with investigators, he “remained silent . . . over concerns about being 7 sued and/or his employment being terminated.” Pray stated that he again told Empower about violations he observed in April and May 2024. Pray alleged that soon after this meeting, Empower terminated its relationship with PSW, “effectively reducing Mr. Pray’s pay.” Pray pleaded that “Empower had also launched a campaign of suing or threatening to sue employees who left the company and attempted to work elsewhere.” Pray was conflicted between continuing to work for a company about which he had concerns, or continuing to raise concerns or even leave the company, because “he knew that Empower would continue to reduce his pay or fire and sue him.” He also alleged that Empower sued him to silence and threatened him and similarly situated employees to silence them about perceived legal violations. Pray alleged that Empower required him to sign two noncompetition agreements. 66. After Mr. Pray’s employment began, Empower required Mr. Pray to sign a confidentiality and non-competition agreement on May 17, 2022. 67. The confidentiality provision expressly states that “Confidential Information shall not include information that is generally available to and known by the public[.]” 68. The document also included a vastly overbroad noncompetition agreement. For instance, the non-competition agreement purports to prohibit the employee from working for any compounding pharmacy, whether a competitor of Empower’s or not, in any capacity for three years. 8  69. On July 18, 2022, on the heels of several c-suite and director level employees departing, Empower Operations, LLC created a “Phantom Stock Plan.” 70. However, the Phantom Stock Plan did not offer Mr. Pray any stocks or shares. 71. The Phantom Stock Plan included an even broader three-year noncompetition agreement that covered the entire United States and U.S. territories and similarly prohibited the employee from working for any pharmaceutical company in any capacity for three years. Pray alleged Empower violated FDA rules in the process of compounding drugs. He alleged violations of recordkeeping and reporting requirements, failing to properly source raw materials, failing to properly produce compounded drug products, failing to have proper licenses, approvals, policies and practices, and generally “creating and enforcing a culture of disguise [and] noncompliance.” Pray also alleged that he was instructed to purchase from suppliers that he believed had potential quality issues, and that Empower falsified reports to the FDA to hide the true source of the raw material ingredients. Pray alleged that Empower retaliated after he confronted executives about the purchase of noncompliant API, lack of documentation, other violations of FDA regulations, and the risks posed to Empower’s clients who used those products. 90. Soon after Mr. Pray confronted Empower executives regarding its adulterated API, Mr. Pray was unexpectedly hauled into a conference room in 2024 with multiple internal investigators, who were recording Mr. Pray’s responses to their questions. 9 91. Rather than investigating Empower’s purchase of adulterated API, the Empower investigators interrogated Mr. Pray about recent executives who left Empower (or whom Empower terminated) and formed a separate business. .... 97. Specifically, on the heels of Mr. Pray raising concerns about Empower’s illegal conduct, Empower’s COO instructed Mr. Pray to stop using PSW to properly sanitize equipment and order quality API– effectively reducing Mr. Pray’s pay. 98. Meanwhile, Empower had also launched its campaign of suing or threatening to sue employees who left the company and attempted to work elsewhere. 99. Empower’s interrogation of Mr. Pray, termination of other employees who raised concerns about Empower’s illegal activities, and Empower cutting Mr. Pray’s pay created a work environment that, by design, instilled fear into and silenced Mr. Pray. 100. Mr. Pray was unsure of where to turn next. Mr. Pray knew that, if he continued to work at Empower, he risked criminal penalties because of his knowledge of Empower’s use of adulterated API that consumers were not only consuming orally but also injecting via syringes. On the other hand, if Mr. Pray continued to confront Empower executives, he knew that Empower would take any and all measures to silence Mr. Pray, such as by continuing to reduce his pay, terminating him, and suing him to prevent him from working elsewhere in the industry that he was valuable. 101. Ultimately, as a result of the pay cut and toxic work environment deliberated [sic] created by Empower, Mr. Pray was forced to resign. 102. Now, as anticipated, Empower has launched this lawsuit against Mr. Pray as a method of trying to silence Mr. Pray, instilling fear into other director and executive level employees that departing Empower will be the end of that employee’s pharmaceutical career, and sending the message that confronting Empower about its violations of federal 10  regulations will result in Empower inflicting pain and disruption on the whistleblowing employee. Pray alleged claims for whistleblower retaliation under the federal False Claims Act, 31 U.S.C. § 3730(h) and for violation of the Texas Free Enterprise and Antitrust Act (TFEAA) related to the two noncompetition agreements he signed. V. Empower seeks dismissal of Pray’s counterclaims under the TCPA. Empower moved to dismiss Pray’s counterclaims under the TCPA. Empower alleged that Pray’s claims were based on or in response to its right to petition. It also argued that Pray lacked clear and specific evidence to support a whistleblower retaliation claim under the federal False Claims Act and an antitrust claim under the TFEAA. Empower argued that Pray’s retaliation claim was “based on” and “in response to” both the filing of its lawsuit and its communications pertaining to a separate lawsuit. Empower’s chief operating officer, Abrarpour, stated in a declaration that the so-called interrogation in Pray’s pleadings was actually an interview related to an unrelated and then-ongoing lawsuit against former employees. Empower argued that Pray’s TFEAA claim was based on and in response to its lawsuits against Pray and others who breached their contracts with Empower. Empower also argued that the numerous references in Pray’s pleading to 11 “attempted enforcement” of noncompetition agreements can refer only to lawsuits to enforce contractual provisions. In response, Pray argued five reasons to deny the motion. First, he argued that his counterclaims were exempt from the TCPA under the employer-employee and fraud exemptions. Second, he argued that Empower did not demonstrate that the TCPA applies to his counterclaims, which he asserts were based on Empower’s pre-lawsuit conduct. Third, he appears to argue that the TCPA does not apply when a claim is only partly based on conduct protected by the statute. Fourth, he argues that he can make a prima facie case for both claims based on his pleadings and deposition testimony. Fifth, he argues that Empower did not assert a meritorious defense or other reason it is entitled to judgment. Pray attached excerpts from his own deposition as evidence, along with copies of the contracts with Empower that he signed and a statement from a supplier. In his deposition, Pray testified that when Empower hired him, he was encouraged and authorized to run purchases through PSW “as terms of my employment.” He also testified that he was “supposed to be elevated to vice president” at Empower, but when the FDA removed a product from the market in June or July 2023, his “VP opportunity was pulled” and “the relationship continued to deteriorate over the next year as I was instructed to purchase the lowest cost APIs regardless of quality in some cases.” 12  After a non-evidentiary hearing, the trial court denied the motion to dismiss, and Empower filed this interlocutory appeal. Analysis On appeal, Empower raises two issues challenging the denial of its motion to dismiss and the denial of its requested monetary relief. I. TCPA A. Purpose The TCPA’s statutorily expressed purpose is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002; Walgreens v. McKenzie, 713 S.W.3d 394, 398–99 (Tex. 2025). The statute serves this dual purpose “by authorizing a motion to dismiss early in the covered proceedings, subject to expedited interlocutory review.” McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907, 914 (Tex. 2023) (citing TEX. CIV. PRAC. & REM. CODE §§ 27.003, 27.008). 13  B. Burden Shifting Analysis for Dismissal Trial courts review TCPA motions to dismiss in a multi-step process. McLane Champions, 671 S.W.3d at 914; HouReal Corp. v. Rescue Concepts Inc., 722 S.W.3d 145, 150 (Tex. App.—Houston [1st Dist.] 2025, no pet.). 1. The First Step “A party moving for dismissal under the TCPA must demonstrate that the TCPA applies to the ‘legal action’ against it—that is, that the action ‘is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.’” Walgreens, 713 S.W.3d at 399 (quoting TEX. CIV. PRAC. & REM. CODE §§ 27.003, 27.005(b)); McLane Champions, 671 S.W.3d at 914. Exercise of the right to petition is broadly defined by the TCPA, and as relevant to this case, it means “a communication in or pertaining to . . . a judicial proceeding.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). Although the Supreme Court has not settled on a comprehensive definition of “based on or in response to,” it has stated that “phrases drawn from dictionary definitions” such as “factually predicated on,” “a main ingredient of,” “a fundamental part of,” and “in answer or reaction to” are “helpful in understanding and applying” the statutory language. Walgreens, 713 S.W.3d at 398–99. However, the protected activity need not be “the only ingredient,” and the legal action need not be “solely dependent on proof of protected activity . . . or instituted solely in 14 reaction to protected activity.” Id. at 400–01. In determining whether the TCPA applies, we can consider the proof that would be needed to support the claim. See id. at 399, 401 (noting that NHTS claim “would require proof of the employer’s negligence in hiring, training, and supervising the employee as well as the employee’s subsequent negligent act or omission” and that “[w]hen either of the alleged instances of negligence or other tortious conduct is based on or in response to the exercise of a protected right, the TCPA applies”). In determining whether the TCPA is applicable, we conduct “a holistic review of the pleadings.” Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018). “The basis of a legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). The plaintiff’s petition is “the best and all-sufficient evidence of the nature of the action.” Id. (quotations omitted). If the movant fails to meet the initial burden to show that the challenged action is based on or in response to the movant’s exercise of a statutorily protected right, the motion to dismiss fails at this initial step. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). 2. The Second Step If the moving party satisfies its initial burden, however, the second step comes into play, shifting the burden of proof to the nonmovant to establish the 15 applicability of a statutory exemption or to establish by clear and specific evidence a prima facie case for each essential element of its claim. See id. §§ 27.005(c), 27.010 (“Exemptions”); Walgreens, 713 S.W.3d at 399 (quoting TEX. CIV. PRAC. & REM. CODE § 27.005(c)); McLane Champions, 671 S.W.3d at 914. A prima facie case “refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). A nonmovant presents clear and specific evidence of each essential element by “provid[ing] enough detail to show the factual basis for [his] claim.” Id. at 591. This standard requires more than mere notice pleading. Id. That is, a party opposing a TCPA motion to dismiss must present actual evidence to establish by clear and specific evidence a prima facie case for each essential element of the claim in question: he may not rely on pleadings alone. See TEX. CIV. PRAC. & REM. CODE § 27.005(c); Foley & Lardner LLP v. Dernick, No. 01-25-00109-CV, --- S.W.3d---, 2026 WL 1171546, at *12 (Tex. App.—Houston [1st Dist.] Apr. 30, 2026, no pet. h.); see also Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 28–29 (Tex. App.—Houston [14th Dist.] 2020, no pet.). If the nonmoving party fails to demonstrate the applicability of a statutory exemption or if it cannot satisfy its burden to establish a prima facie case for each essential element of its claim, the trial court must dismiss the suit. See TEX. CIV. 16 PRAC. & REM. CODE §§ 27.005(b), 27.010; McLane Champions, 671 S.W.3d at 914. 3. The Third Step Finally, if the nonmovant satisfies the second step, in the third step, the movant has the opportunity to establish “an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.” TEX. CIV. PRAC. & REM. CODE § 27.005(d). If the movant satisfies the third step, the trial court will dismiss the legal action. C. Standard of Review We review a trial court’s ruling on a TCPA motion to dismiss de novo. Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex. 2021). We likewise interpret the TCPA and decide whether it applies to a legal action de novo. See Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). In reviewing whether a legal action is subject to or should be dismissed under the TCPA, we consider the pleadings, evidence a court could consider under Texas Rule of Civil Procedure 166a, and supporting and opposing affidavits stating the facts on which the liability or defense is based. TEX. CIV. PRAC. & REM. CODE § 27.006(a). We view the pleadings and evidence in the light most favorable to the nonmovant. HouReal Corp., 722 S.W.3d at 151. 17  Because “[d]ismissal under the TCPA is determined on a claim-by-claim basis,” Union Pac. R.R. Co. v. Dorsey, 651 S.W.3d 692, 695–96 (Tex. App.— Houston [14th Dist.] 2022, no pet.), we now consider each of Pray’s claims. II. Retaliation Claim A. First Step: TCPA Applies to Pray’s Retaliation Claim We begin with Pray’s pleadings. Pray alleged that Empower retaliated against him after he raised concerns about “illicit purchases of API [active pharmaceutical ingredients].” He alleged Empower sought to silence him by taking the following actions: • “Interrogating” him in an unexpected, recorded interview with multiple internal investigators in which he was questioned about former employees who had recently left to form a separate business; • Promptly terminating another executive who raised the same issues; • Reducing his pay by terminating Empower’s relationship with PSW shortly after Pray told Empower about additional violations he observed in April and May 2024; • Suing or threatening to sue employees who left the company and attempted to work elsewhere; • Suing him to silence him, and threatening him and similarly situated employees to silence them about perceived legal violations. • Causing him to resign due to the pay cut and toxic work environment. We also consider the factual allegations in the declaration of Empower’s Chief Operating Officer. See TEX. CIV. PRAC. & REM. CODE § 27.006(a). He stated 18 that the January 2024 interview that Pray claimed was Empower’s retaliatory behavior “had nothing to do with” Pray’s alleged whistleblowing activity, but instead was “an effort to develop the evidence pertaining to Empower’s then- pending lawsuit against other former employees” in the Bio Filling case. Empower’s TCPA motion alleged that Pray’s claims were based on or in response to its right to petition. Exercise of the right to petition includes a communication in or pertaining to a judicial proceeding. Id. § 27.001(4)(A)(i). A “‘communication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). Some, but not all, of Pray’s factual allegations of retaliation are communications in or pertaining to a judicial proceeding. First, the interrogation or investigative interview was based on an actual, pending judicial proceeding, the Bio Filling case. Thus, the interview was an exercise of the right to petition. See Constellation Brands, Inc. v. Roach, No. 01-21-00155-CV, 2022 WL 17981666, at *15 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet. denied) (mem. op.) (holding that letter from in-house counsel regarding pending judicial proceeding was an exercise of the right to petition). Suing other employees is an exercise of the right to petition. See TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). And the 19 underlying lawsuit Empower filed against Pray is an exercise of the right to petition. See id. Termination of another employee, discontinuing a contractual relationship with PSW, threatening to sue other employees, and creating a toxic work environment, which allegedly prompted Pray to resign, are not factual allegations based on or in response to the exercise of the right to petition. But the Supreme Court has made it clear that a legal action need not be “solely dependent on proof of protected activity . . . or instituted solely in reaction to protected activity.” Walgreens, 713 S.W.3d at 400–01. Cf. Weldon v. Lilith Fund for Reprod. Equity, 735 S.W.3d 702, 708 (Tex. 2026) (considering “broader context” of factual allegations to determine whether TCPA applied and stating, “When a TCPA- protected activity results in a legal action seeking to enjoin that activity, the legal action is based on or in response to the protected activity.”). In this case, Pray’s factual allegations demonstrate that a main ingredient or fundamental part of his retaliation claim involves Empower’s exercise of the right to petition, and the broader context of the factual allegations likewise supports this determination. We conclude that this is sufficient to satisfy the first step of the TCPA analysis, and we hold that the TCPA applies to the retaliation claim. See Walgreens, 713 S.W.3d at 400–01. 20  B. Second Step: Fraud Exemption Does Not Apply The second step of the TCPA analysis shifts the burden to Pray to demonstrate the applicability of an exemption or make a prima facie case. Pray asserts that he did both, and unsurprisingly, Empower argues that he did neither. Pray argues that the fraud exemption applies. The TCPA does not apply to “a legal action based on a common law fraud claim.” TEX. CIV. PRAC. & REM. CODE § 27.010(a)(12). “[W]hen a plaintiff’s cause of action, as pleaded, requires proof of common law fraud as part of its elements, the claim is ‘based on a common law fraud claim’ and is exempt from the TCPA.” Jetall Cos., Inc. v. Sonder USA Inc., No. 01-21-00378-CV, 2022 WL 17684340, at *19 (Tex. App.— Houston [1st Dist.] Dec. 15, 2022, no pet.) (mem. op.); accord Van Steenwyk v. Applied Techs. Assocs., Inc., No. 14-24-00068-CV, 2025 WL 1692590, at *7 (Tex. App.—Houston [14th Dist.] June 17, 2025, no pet.); Baylor Scott & White v. Project Rose MSO, LLC, 633 S.W.3d 263, 282 (Tex. App.—Tyler 2021, pet. denied). Pray argues that his whistleblower retaliation claim is based on his allegations that Empower acted to defraud the federal government. He asserts that his refusal to participate in the allegedly fraudulent scheme (involving violating FDA regulations pertaining to manufacturing compounded drug products) is proof of his reasonable belief that a violation of the False Claims Act has occurred. 21 Appellee’s Br. 37. We disagree with Pray because a claim for retaliation under the False Claims Act does not require proof of common law fraud as part of its elements. See Jetall Cos., 2022 WL 17684340, at *19. The TCPA’s statutory fraud exemption applies to common-law fraud claims and legal actions based on common-law fraud claims. Baylor Scott & White, 633 S.W.3d at 283. But the statutory exemption does not plainly apply the TCPA to claims made under a federal statutory claim that is not based on common-law fraud. See TEX. CIV. PRAC. & REM. CODE § 27.010(a)(12). To prove common-law fraud, a plaintiff must prove the following elements: (1) the defendant made a material misrepresentation; (2) that the defendant knew was false or was made recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon the misrepresentation; and (4) the plaintiff actually and justifiably relied upon the misrepresentation and suffered injury as a result. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018); Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015). The False Claims Act “is a fraud prevention statute.” U.S. ex rel. Patton v. Shaw Servs., L.L.C., 418 Fed. Appx. 366, 369 (5th Cir. 2011). A party violates the False Claims Act by taking various actions seeking payment from the government that is not due and to which the party is not entitled. See 31 U.S.C. § 3729. Such 22 actions include “knowingly present[ing] or caus[ing] to be presented a false or fraudulent claim for payment or approval” or “knowingly mak[ing], us[ing], or caus[ing] to be made or used, a false record or statement material to a false or fraudulent claim.” Id. § 3729(a)(1)(A)–(B). For the purpose of the False Claims Act, a “claim” is defined as “any request or demand . . . for money or property . . . .” Id. § 3729(b)(2). “The statute attaches liability, not to the underlying fraudulent activity . . . but to the ‘claim for payment.” Patton, 418 Fed. Appx. at 369 (cleaned up). A retaliation claim under the False Claims Act requires proof that the plaintiff was an employee, contractor, or agent, who was discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment, because of lawful acts taken by the plaintiff in furtherance of a civil action under the False Claims Act or because of other efforts to stop one or more False Claims Act violations. 31 U.S.C. § 3730(h)(1); see Patton, 418 Fed. Appx. at 371–72 (“To bring an FCA retaliation claim for his termination, Patton was required to show that he engaged in activity protected under the statute, that his employer knew he engaged in protected activity, and that he was discharged because of it.”). Comparing the elements of a retaliation claim under the False Claims Act with the elements of common-law fraud, we conclude that Pray’s claim is not a 23 legal action based on common-law fraud. See Baylor Scott & White, 633 S.W.3d at 283. A False Claims Act retaliation claim does not require proof of any of the elements of common-law fraud. Compare 31 U.S.C. § 3730(h)(1), with JPMorgan Chase Bank, 546 S.W.3d at 653. Accordingly, we hold that the TCPA’s fraud exemption does not apply to Pray’s whistleblower retaliation claim. C. Second Step: Pray Failed to Make a Prima Facie Claim for Retaliation Empower argues that Pray failed to make a prima facie case for retaliation, specifically as to the first two elements of an FCA retaliation claim, and that Pray failed to demonstrate that Empower’s stated legitimate, nonretaliatory reasons for its actions were pretextual. Pray asserts that there was ample evidence to support his retaliation claim. In the second step of the TCPA analysis, Pray was required to present clear and specific evidence that, if unrebutted, would support his claim for FCA retaliation. See TEX. CIV. PRAC. & REM. CODE § 27.005(c). At a minimum, that required evidence, not merely pleadings, (1) that Pray engaged in activity that is protected by the FCA, (2) that Empower knew Pray engaged in activity protected by the FCA, and (3) that Empower discriminated against him because of the protected activity. See Patton, 418 Fed. Appx. at 371–72. In response to Empower’s TCPA dismissal motion, Pray provided the following evidence: (1) excerpts from his deposition; (2) the confidentiality and 24 non-compete agreement he signed in May 2022; (3) the confidentiality and non- compete agreement he signed in July 2022 as part of the Empower Phantom Stock Plan; and (4) a statement dated September 2024 from Shezhen JYMed confirming that LGM Pharma was its exclusive agent for US sales of tirzepatide, semaglutide, and liraglutide from its Hubei JXBio manufacturing site. We focus on the deposition excerpts because the two agreements and the Shezhen JYMed statement are not relevant to the three elements of an FCA whistleblower claim that Pray was required to support with clear and specific evidence to avoid dismissal in the second step of the TCPA analysis. The deposition excerpts show the following. In 2022, Pray began work as a consultant and then a full-time employee of Empower. Pray testified that he was “supposed to be elevated to vice president” in late 2022 or early 2023. He said that he “pushed back” on regulatory issues, specifically Empower’s continued use of semaglutide salt from Beijing that was “sprinkl[ed]” with B12 after a memorandum from the FDA said compounding manufacturers “should not be using semaglutide salt.” In June or July, the FDA halted Empower’s production “for a couple of months.” Pray said that his “VP opportunity was pulled,” and his relationship with Empower deteriorated. He testified that he was “instructed to purchase the lowest cost APIs regardless of quality in some cases.” Pray testified that he raised compliance issues in emails, 25 but he said that he did not know when he sent the emails and he did not have any of those emails. When asked about the specific compliance issues he raised, Pray testified: “Specifically on resuming the semaglutide base, the semaglutide salt and the memorandum that came out stating semaglutide salt was not to be utilized.” Because Pray presented selected excerpts of his deposition, the testimony is discontinuous in places. After his response to the question about which compliance issues he raised, the deposition pages attached to Pray’s TCPA response jump from page 17 to page 56. On page 56, Pray’s testimony continues, but the question he is answering is not in the record. Pray testified: The FDA had just recently left our 503A option–or 503A, and Shaun stated that the FDA won’t be at back for at least a year so we have a window of opportunity. I didn’t agree with that. Then after that that’s when the retaliation, several, yeah, so– shortly after I was told not to utilize PSW Group and several of those. That and several other things that appeared very retaliatory, and as you can see, Shaun, without an NDA, engages with somebody off of LinkedIn, provides our inventory numbers, negotiates with them and then directs me to purchase it if it’s the cheapest option. So knowing that it looked like there was some type of retaliation or potential, I started seeing mysel