My colleague Joe Cleveland and I have written two new articles on Texas trade secrets law. The articles were recently published in the State Bar of Texas Intellectual Property Law Section’s Tipsheet newsletter. You can read the articles below:
Continue Reading Two New Brackett & Ellis Trade Secrets Articles Appear In IP Law Section’s Tipsheet Newsletter
On May 5, 2017, the Austin Court of Appeals issued a first of its kind opinion holding that Texas Citizens Participation Act (TCPA)—also known as the Texas anti-SLAPP statute—can potentially be invoked to successfully defend against Texas Uniform Trade Secrets Act (TUTSA) claims. In Elite Auto Body LLC, d/b/a Precision Auto Body v. Autocraft Bodywerks, Inc., No. 03-15-00064-CV, 2017 WL 1833495 (Tex. App.—Austin May 5, 2017, no pet. h.), plaintiff Autocraft Bodywerks sued Precision (Elite) Auto Body and several former Autocraft employees alleging that the employees provided Precision with Autocraft’s trade secrets. In particular, Autocraft alleged:
Continue Reading New Case States that Texas’s Right of Association Trumps the Texas Uniform Trade Secrets Act
As you know from my previous blog posts, the Texas House and Senate have been considering certain amendments to the Texas Uniform Trade Secret Act (TUTSA). These amendments were the product of months of study by a working group consisting of members of the Trade Secrets Committee of the Intellectual Property Section of the State Bar of Texas and the Business Law Section of the State Bar of Texas.
Continue Reading Texas House and Senate Pass Legislation to Amend the Texas Uniform Trade Secret Act
In my March 26, 2017 post, I argued that under the Texas Uniform Trade Secret Act (TUTSA), an applicant for injunctive relief was not required to establish the common law element of a “probable, imminent, and irreparable injury.” Instead, the applicant only had to prove “actual or threatened misappropriation.” The applicant in Baxter & Associates, L.L.C. v. D & D Elevators, No. 05-16-00330-CV, 2017 WL 604043 (Tex. App.—Dallas Feb. 15, 2017, no pet. h.), made the same argument, but before the Fifth Court of Appeals could decide the issue, it found that the applicant had failed to prove its customer list was a trade secret under TUTSA.
Continue Reading When a Customer List is Not a Trade Secret
In my previous posts, I have discussed the House and Senate bills to amend the Texas Uniform Trade Secret Act (TUTSA). On Thursday, April 20, my colleague Joe Cleveland testified before the Senate State Affairs committee in support of the proposed TUTSA amendments. His prepared remarks are below:
Continue Reading Texas Senate Holds Hearing on TUTSA Amendments
If you have been following my blog, you know that the Texas Legislature is considering proposed legislation to amend the Texas Uniform Trade Secret Act (TUTSA). One of the purposes of these amendments is to conform parts of TUTSA to the Defend Trade Secrets Act (DTSA), a new law that creates a federal civil cause of action for misappropriation of trade secrets. The proposed new definition of “trade secret” under TUTSA is a great example of the effort to merge the two laws. The new TUTSA definition incorporates several of the illustrative examples of trade secret contained in DTSA. The new or changed language is italicized:
Continue Reading Future Changes to the Definition of “Trade Secret” Under the Texas Uniform Trade Secret Act
The State Bar of Texas recently published the 2016 edition of the Texas Pattern Jury Charges, which includes for the first time jury instructions and questions for misappropriation of trade secrets cases. Texas Pattern Jury Charges is a series of books published by the State Bar of Texas to assist the bench and bar in preparing the court’s charge in jury trials. The pattern charges are suggestions and guides for providing definitions, instructions, and questions to a jury in a variety of cases under Texas law. Each year, the Committee on Texas Pattern Jury Charges surveys Texas law to prepare jury charges on new subjects for publication in the Texas Pattern Jury Charges.
Continue Reading Brackett & Ellis Attorney Recognized in Latest Edition of Texas Pattern Jury Charge
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.”
Continue Reading Fourth Court of Appeals Issues Opinion that (Sort of) Interprets the Texas Uniform Trade Secret Act in the Injunction Context
In my February 18, 2017 post, I mentioned that a bill to amend the Texas Uniform Trade Secret Act had been filed in the Texas House of Representatives. On March 10, 2017, Texas State Senator Bryan Hughes filed the Senate version of the bill. You can track Senate Bill 1945’s progress on the Texas Legislature’s site.
Continue Reading Bills to Amend the Texas Uniform Trade Secret Act Progress through the Texas Legislature
On February 16, 2017, Texas State Representative Gary Elkins filed H.B. 1995 to amend the Texas Uniform Trade Secrets Act (TUTSA). The bill is the product of months of study completed by a Working Group consisting of members of the Trade Secrets Committee of the Intellectual Property Section of the State Bar of Texas and the Business Law Section of the State Bar of Texas. As a result of that study, the Working Group (of which I was a member) determined that there were four key concerns with TUTSA that needed to be addressed:
Continue Reading Texas Representative Files Bill to Amend Texas Uniform Trade Secrets Act