The Northern District of Texas recently published a 2015 opinion interpreting the Texas Uniform Trade Secrets Act (TUTSA). In ZeniMax Media, Inc. v. Oculus VR, LLC, 166 F. Supp. 3d 697 (N.D. Tex. 2015), Judge Solis held that plaintiff’s common law misappropriation claims were not preempted by TUTSA.  Defendant Facebook did not acquire the misappropriating company until after the effective date of TUTSA.  Nevertheless, plaintiff’s complaint alleged that Facebook, rather than engaging in a new independent misappropriation, joined an alleged ongoing misappropriation that had started prior to TUTSA being enacted.  Relying on the legislative history of the act, Judge Solis determined that a continuing misappropriation beginning before the enactment of TUTSA would be governed by the common law.

The bottom line is that if you acquire a company that engaged in an ongoing misappropriation that began before September 1, 2013, the common law—and not TUTSA—may govern your claim. As a plaintiff, I would recommend filing both a common law misappropriation and TUTSA claims in that situation.

The case also contains a good history of the development of the Oculus Rift VR headset.