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Title Source, Inc. v. HouseCanary, Inc., No. 04-19-00044-CV, 2020 WL 5027667 (Tex. App.—San Antonio Aug. 26, 2020, pet. granted) is a new case addressing the jury charge in Texas Uniform Trade Secrets Act (TUTSA) cases.  In a previous post, I discussed the Casteel problem in the misappropriation instructions that resulted in reversal of this multi-million dollar judgment and the court’s evaluation of the evidence supporting the existence of the trade secrets. (For complete discussion of the facts, please see this previous blog post.  Since I wrote that post, the Court withdrew its earlier opinion and held, in addition to its previous holdings, that HouseCanary must also retry its breach of non-disclosure agreement claims if it elects on remand to retry its TUTSA claims because the claims were not separable from each other without unfairness to the parties.)
Continue Reading Even More Lessons from Title Source v. HouseCanary

Houston’s First District Court of Appeals affirmed a trial court’s refusal to grant a dismissal of a misappropriation of trade secrets claim based on the previous version of Texas Citizen Participation Act (TCPA) because both the right of association and the right of free speech require some showing of a public good. Newpark Mats & Integrated Services, LLC v. Cahoon Enterprises, LLC, 01-19-00409-CV, 2020 WL 1467005, at *4 (Tex. App.—Houston [1st Dist.] Mar. 26, 2020, no pet.). The plaintiff-appellee in this case Cahoon Enterprises, LLC (Cahoon) is a small, family-owned business in North Dakota that provides roustabout services including the installation and removal of mats used under the sand boxes of oil fracking sites. The defendant-appellant Newpark manufactures the matting systems that Cahoon installs.
Continue Reading First District Court of Appeals Affirms Trial Court’s Decision to Reject a Motion to Dismiss under the TCPA

The Fort Worth Court of Appeals recently examined an accelerated interlocutory appeal under the previous version of the Texas Citizens Participation Act (TCPA), ultimately determining that an allegation of misappropriation of trade secrets must be specifically proven.  In Phuong Nguyen v. ABLe Communications, Inc., 02-19-00069-CV, 2020 WL 2071757 (Tex. App.—Fort Worth Apr. 30, 2020, no pet.), the plaintiff ABLe Communications (ABLe) sued the three defendants, Phuong Nguyen (Nguyen), E2 Optics, LLC (E2), and Southwest Networks, Inc. (Southwest), after Nguyen left ABLe to work for Southwest.
Continue Reading Fort Worth Court of Appeals Analyzes the Evidence for Misappropriation in a TCPA Trade Secrets Case

Collaborative Imaging, LLC v. Zotec Partners, LLC, No. 05-19-01256-CV, 2020 WL 3118614 (Tex. App.–Dallas  June 12, 2020, no pet. h.) is another example of the courts’ increasing unwillingness to apply the previous version Texas’s anti-SLAPP statute the Texas Citizens Participation Act (TCPA) to cases involving the Texas Uniform Trade Secrets Act (TUTSA).  In Collaborative Imaging, an employee of a healthcare practice management services provider quit his job with that provider and went to work for a company started by the doctors from one of the provider’s clients.  A few months after the employee made the change in employment, the client terminated its contract with the provider.  The provider sued the former employee and his new company, alleging that they disclosed trade secrets relating to billing practices that result in termination of the contract between the provider and client.
Continue Reading Dallas Court of Appeals Rejects Application of TCPA to Trade Secrets Case

Last fall, the Texas Journal of Business Law, the journal of the Business Law Section of the State Bar of Texas, published my colleagues Joe Cleveland and Kevin Smith‘s article A Practitioner’s Guide to the Texas Uniform Trade Secret Act.  It’s a great resource for any trade secret litigator. 
Continue Reading A Practitioner’s Guide to the Texas Uniform Trade Secret Act

For the last few years, defendants in trade secrets and other commercial litigation claims have used the previous version of Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) as a defense to those claims.  Langley v. Insgroup, Inc., No. 14-19-00127-CV, 2020 WL 1679625 (Tex. App.–Houston [14th Dist.] Apr. 7, 2020, no pet. h.) is another example of this strategy.  In Langley, an insurance salesman left his employer to work for a competitor.  The former employer accused the salesman of violating his non-compete agreement, tortious interference with the employer’s contracted clients, breach of fiduciary duty, and violation of the Texas Uniform Trade Secret Act.  The new employer was also a defendant to several of those causes of action.
Continue Reading TCPA’s Commercial Speech Exemption Applies to Employer’s Claims Against Former Employee

In June 2020, the San Antonio Court of Appeals issued its opinion in Title Source, Inc. v. HouseCanary, Inc., No. 04-19-00044-CV, 2020 WL 2858866 (Tex. App.–San Antonio June 3, 2020, no pet. h.), reversing and remanding for new trial a $740 million judgment in favor of HouseCanary on its Texas Uniform Trade Secrets Act (TUTSA) and fraud claims against Title Source.
Continue Reading Crafting The Jury Charge in Trade Secrets Cases — Lessons from Title Source v. HouseCanary

In 2018, the First Court of Appeals issued its opinion in Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.), which involves the application of Texas’s anti-SLAPP statute the Texas Citizen Participation Act (TCPA) to a trade secrets case.  The Court’s opinion determined that the TCPA applied to such claims and reversed the trial court’s decision in part.  Recently, though, the Court reconsidered its opinion en banc and determined that the TCPA did not apply to the claims.  Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2020 WL 826729 (Tex. App.–Houston [1st Dist.] Feb. 20, 2020, no pet. h.).
Continue Reading Houston’s First Court of Appeals Reverses Itself on the Application of the TCPA to Trade Secret Claims

Beginning with the Texas Supreme Court decisions in Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) and ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) and continuing with the Austin Court of Appeals 2017 decision in Elite Auto Body LLC, d/b/a Precision Auto Body v. Autocraft Bodywerks, Inc., Texas courts had taken the position that Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) had almost unlimited application to commercial litigation cases such as those involving misappropriation of trade secrets. Beginning in 2019, though, certain courts of appeal have begun to reject or limit those holdings.
Continue Reading Dallas Court of Appeals Continues its Efforts to Restrict the Application of the TCPA

In 2019, the Dallas Court of Appeals issued a decision in Goldberg v. EMR (USA Holdings) Inc., a complex opinion in evaluating the application of the previous version of the Texas Citizens Participation Act (TCPA) to trade secrets and other claims.  In 2020, the Court reissued that opinion with a more streamlined analysis.
Continue Reading Dallas Court of Appeals Issues Simplified Opinion in Goldberg Case