If you have been reading this blog, you know that I have frequently commented on the use of Texas’s anti-SLAPP statute the Texas Citizens Participation Act (TCPA) to defeat a Texas Uniform Trade Secrets Act (TUTSA) claim. Most of the early cases involved defendants using the TCPA to dismiss a plaintiff’s TUTSA claim. Universal Plant Services, Inc. v. Dresser-Rand Group, Inc., No. 01-17-00555-CV, 2018 WL 6695813 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) involves a plaintiff overcoming defendants’ TCPA motions. Continue Reading How to Beat an Anti-SLAAP Motion in a Trade Secrets Case
The Texas Uniform Trade Secret (TUTSA) allows a defendant to recover its attorneys’ fees if (1) the claim for misappropriation was brought in bad faith or (2) a motion to terminate an injunction is made or resisted in bad faith. The recent Dallas Court of Appeals case of Performance Pulsation Control, Inc. v. Sigma Drilling Technologies, No. 05-17-01423, 2018 WL 6599180 (Tex. App.—Dallas 2018, no pet. h.) is one of the few cases that has evaluated that standard. Continue Reading Dallas Court of Appeals Evaluates Standard for Attorneys’ Fees Under TUTSA
If you have been following my blog, you know that Texas’s anti-slapp statute—the Texas Citizens Participation Act (TCPA)—frequently applies to commercial litigation claims. McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, No. 01-18-00118-CV, 2018 WL 6377432 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet. h.) is another example of the use of the TCPA as a defense to a commercial litigation suit. In McDonald Oilfield Operations, plaintiff 3B Inspection brought claims a defamation, business disparagement, and tortious interference with contract after defendant McDonald Oilfield Operations, a competitor in the pipeline monitoring business, allegedly told one of 3B’s customers that 3B was “not a real company” and that McDonald Oilfield had suspended some 3B’s employees’ qualifications. (Three of 3B’s employees had worked for McDonald Oilfield as independent contractors and had received their credentials through McDonald Oilfield. McDonald Oilfield asserted claims that these employees had misappropriated trade secrets and stolen company property.) Continue Reading Another Example of Texas’s Anti-Slapp Statute Applying to Commercial Litigation Claims
The Eastern District of Virginia has issued multiple opinions addressing the Texas Uniform Trade Secret (TUTSA) in Steves & Sons, Inc. v. JELD-WEN, Inc., No. 3:16CV545, 2018 WL 6272893 (E.D. Va. Nov. 30, 2018). Its latest opinion addressed whether plaintiff was entitled to both reasonable royalty damages and a permanent injunction following trial. Defendant argued that allowing both would constitute an impermissible double recovery. Surprisingly, the Court agreed.
Continue Reading Eastern District of Virginia Holds that Plaintiff’s Reasonable Royalty Testimony Precludes a Permanent Injunction
As previously mentioned in this blog, one of the biggest issues in trade secrets litigation in Texas is the application of the state’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) to claims under the Texas Uniform Trade Secret Act (TUTSA). Because of the broad language of the TCPA, defendants can file a TCPA motion to dismiss in almost any trade secrets case. Texas Representative Jeff Leach, however, has filed a bill to change that. Continue Reading Bill to Amend TCPA filed in Texas House of Representatives
I will be presenting on the 2018 Trade Secrets Update on day 2. Continue Reading Brackett & Ellis to Present the 2018 Trade Secrets Update at TexasBarCLE’s 32nd Annual Advanced Intellectual Property Law Course
In Steves & Sons, Inc. v. JELD-WEN, Inc., No. 3:16-CV-545, 2018 WL 2172502 (E.D. Va. May 10, 2018), the Eastern District of Virginia provides an in-depth look at unjust enrichment and reasonable royalty damages under both the Defend Trade Secrets Act (DTSA) and the Texas Uniform Trade Secrets Act (TUTSA). Continue Reading Eastern District of Virginia Explores Damages Under DTSA and TUTSA
Damages for misappropriation of trade secrets are generally understood as (1) lost profits, (2) defendant’s profits, or (3) a reasonable royalty. These are damages traditionally sought against a competitor. But that does not mean that a departing employee who takes trade secrets to a competitor is immune from a damage award. Continue Reading Another Reason Employees Should Think Twice Before Taking Their Employer’s Trade Secrets
Over the course of several cases, Judge Mazzant from the Eastern District of Texas has emphasized the circumstantial nature of the evidence used to establish misappropriation of trade secrets. SPBS, Inc. v. Mobley, No. 4:18-CV-00391, 2018 WL 4185522, (E.D. Tex. Aug. 31, 2018) is a good example of the court relying on such circumstantial evidence to issue an injunction against a former employee accused of taking trade secrets.
Continue Reading Why Employees Should Not Lie about Their New Employers
One of the most difficult things in prosecuting a trade secret case is determining how to define the trade secrets that have been misappropriated. If a plaintiff defines the trade secrets too narrowly, it runs the risk of failing to stop the misappropriation. However, if a plaintiff uses a definition of trade secrets that is based on broad or generic terms, then the plaintiff runs the risk that its requested injunctive relief will be denied. Continue Reading Western District of Texas Denies Injunctive Relief Based, in part, on Plaintiff’s Vaguely Defined Trade Secrets