On March 8, 2017, the Texas Fourth Court of Appeals issued its memorandum opinion in Hughes v. Age Industries, No. 04-16-00693, 2017 WL 943423 (Tex. App—San Antonio 2017, no pet. h.).  Hughes involves the familiar fact pattern of a key employee leaving his employer to work for a competing business.  In addressing the employee’s argument that the employer failed to prove the existence of trade secret, the Court stated that “[i]n the temporary injunction context, a trial court does not decide whether the information sought to be protected is a trade secret; rather it determines whether the applicant has established the information is entitled to trade secret protection until a trial on the merits.”  This is an interesting comment because the Texas Uniform Trade Secret Act (TUTSA) makes no mention of this lesser standard in its language.  Rather, the Court relied on outdated common law case law as the basis for its statement.  The effect of the Court’s statement is to establish a possibly easier standard for establishing a plaintiff’s temporary injunction although I am not clear as to the difference between “trade secret” and “information . . . entitled to trade secret protection until a trial on the merits.”

The Court further analyzed whether the employer had established a “probable, imminent, and irreparable injury,” which is the standard for common law injunctive relief but not the standard for TUTSA injunctive relief.  Under TUTSA, “[a]ctual or threatened misappropriation may be enjoined.”  Not only does TUTSA not mention requiring a “probable, imminent, and irreparable injury,” it states that damages for misappropriation can be “in addition” to injunctive relief, implying that proof of a probable, imminent, and irreparable injury—i.e., an injury that “cannot adequately compensated in damages” or “cannot be measured by any certain pecuniary standard”—is not a requirement of TUTSA.  Again, the Court’s analysis seems to mix Texas trade secret common law with TUTSA for an interpretation that is not necessarily consistent with the statute.