Most cases that have evaluated the Texas Citizens Participation Act (TCPA) have focused on whether the TCPA applied to the claims.  This isn’t the issue in Neurodiagnostic Consultants, LLC v. v. Nallia, No. 03-18-00609-CV, 2019 WL 4231232 (Tex. App.—Austin Sept. 6, 2019, no pet. h.).  Instead, Nalia focuses on whether the non-movant offered sufficient proof to defeat a TCPA motion to dismiss.

Nalia involves the familiar fact pattern of managerial-level employees leaving employment to work for a competitor.  The employees’ former employer sued them for breach of contract, misappropriation of trade secrets, breach of fiduciary duty, and conspiracy.  Regarding the trade secrets claim, there was evidence in the record that defendant Nalia had provided alleged trade secret information to a competitor while she was still employed with plaintiff.  However, the same evidence did not exist with respect to defendant Villalobos.  Nevertheless, there was evidence that Villalobos was involved in the civil conspiracy to misappropriate trade secrets with Nalia–he was planning to launch a competing business with Nalia and Nalia had disclosed trade secrets.  Therefore, there was sufficient evidence to support plaintiffs’ trade secrets claims as to both Nalia and Villalobos.

Interestingly, the Court also found that there was sufficient evidence that Nalia and Villalobos breached their fiduciary duties to their employer by providing confidential information to a competitor.  Such a holding directly conflicts with the Texas Uniform Trade Secrets Act (TUTSA)’s preemption provision.