Commercial Litigation

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If you have been following this blog, you know that a frequent topic is the application of Texas’s anti-SLAAP statute–the Texas Citizens Participation Act (TCPA)–to the Texas Uniform Trade Secrets Act.  In cases such as Craig v. Tejas Promotions, LLC, 550 S.W.3d 287 (Tex. App.–Austin 2018, pet. filed) and Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (Tex. App.–Austin 2017, pet. denied), the Austin Court of Appeals held that a petition alleging that two conspirators are working together to misappropriate a competitor’s trade secrets implicates the right of association prong of the TCPA.  In a surprising new opinion, though, the Fort Worth Court of Appeals indicates that it is not going to follow these holdings.
Continue Reading Fort Worth Court of Appeals Issues New Opinion Restricting the TCPA

A plaintiff who believes its trade secrets have been misappropriated can pursue those claims in either federal or state court. One of the advantages of choosing federal court is the growing body of case law holding that the Texas Citizens Participation Act (TCPA), Texas’s anti-SLAAP statute, does not apply in federal court.
Continue Reading The Eastern District of Texas Determines that Texas’s Anti-SLAAP Statute Does Not Apply to Claims Filed in Federal Court

As previously mentioned in this blog, one of the biggest issues in trade secrets litigation in Texas is the application of the state’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) to claims under the Texas Uniform Trade Secret Act (TUTSA). Because of the broad language of the TCPA, defendants can file a TCPA motion to dismiss in almost any trade secrets case.

On June 2, 2019, Governor Abbott signed a bill to change that.
Continue Reading Governor Abbott Signs Bills Amending the TCPA

The Texas Uniform Trade Secret (TUTSA) allows a defendant to recover its attorneys’ fees if (1) the claim for misappropriation was brought in bad faith or (2) a motion to terminate an injunction is made or resisted in bad faith. The recent Dallas Court of Appeals case of Performance Pulsation Control, Inc. v. Sigma Drilling Technologies, No. 05-17-01423, 2018 WL 6599180 (Tex. App.—Dallas 2018, no pet. h.) is one of the few cases that has evaluated that standard.
Continue Reading Dallas Court of Appeals Evaluates Standard for Attorneys’ Fees Under TUTSA

If you have been following my blog, you know that Texas’s anti-slapp statute—the Texas Citizens Participation Act (TCPA)—frequently applies to commercial litigation claims. McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, No. 01-18-00118-CV, 2018 WL 6377432 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet. h.) is another example of the use of the TCPA as a defense to a commercial litigation suit. In McDonald Oilfield Operations, plaintiff 3B Inspection brought claims a defamation, business disparagement, and tortious interference with contract after defendant McDonald Oilfield Operations, a competitor in the pipeline monitoring business, allegedly told one of 3B’s customers that 3B was “not a real company” and that McDonald Oilfield had suspended some 3B’s employees’ qualifications. (Three of 3B’s employees had worked for McDonald Oilfield as independent contractors and had received their credentials through McDonald Oilfield. McDonald Oilfield asserted claims that these employees had misappropriated trade secrets and stolen company property.)
Continue Reading Another Example of Texas’s Anti-Slapp Statute Applying to Commercial Litigation Claims

The Eastern District of Virginia has issued multiple opinions addressing the Texas Uniform Trade Secret (TUTSA) in Steves & Sons, Inc. v. JELD-WEN, Inc., No. 3:16CV545, 2018 WL 6272893 (E.D. Va. Nov. 30, 2018). Its latest opinion addressed whether plaintiff was entitled to both reasonable royalty damages and a permanent injunction following trial. Defendant argued that allowing both would constitute an impermissible double recovery. Surprisingly, the Court agreed.
Continue Reading Eastern District of Virginia Holds that Plaintiff’s Reasonable Royalty Testimony Precludes a Permanent Injunction

As previously mentioned in this blog, one of the biggest issues in trade secrets litigation in Texas is the application of the state’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA) to claims under the Texas Uniform Trade Secret Act (TUTSA).  Because of the broad language of the TCPA, defendants can file a TCPA motion to dismiss in almost any trade secrets case.  Texas Representative Jeff Leach, however, has filed a bill to change that.  
Continue Reading Bill to Amend TCPA filed in Texas House of Representatives

TexasBarCLE‘s 32nd Annual Advanced Intellectual Property Law seminar is February 27-March 1, 2019.  There are three great days of CLE:

I will be presenting on the 2018 Trade Secrets Update on day 2. 
Continue Reading Brackett & Ellis to Present the 2018 Trade Secrets Update at TexasBarCLE’s 32nd Annual Advanced Intellectual Property Law Course

Eagle Oil & Gas Co. v. Shale Exploration, LLC, 549 S.W.3d 256 (Tex. App.—Houston [1st Dist.] 2018, pet., pet. dismissed) involves the familiar situation where a plaintiff sues for both breach of a confidentiality agreement and for misappropriation of trade secrets. Defendant asserted that plaintiff was limited to a breach of contract claim because the misappropriation claim was barred by the economic loss rule, which bars a recovery in tort for economic losses caused by a breach of contract if the losses are due to the failure to fulfill a contractual obligation.
Continue Reading The Economic Loss Rule Does Not Prohibit a Plaintiff from Asserting Both Breach of Contract and Common Law Misappropriation of Trade Secrets Claims

In part one of this series, we saw that collecting a judgment from an individual is difficult because Texas protects up $50,000.00 of personal property items for single individuals and $100,000.00 in personal property items for families. This is one of many debtor protections under Texas law.

Another protection is Texas’s “strong pro-homestead tradition.” Norris v. Thomas, 215 S.W.3d 851, 854 (Tex. 2007).
Continue Reading Not So Fast: The Difficulties of Collecting Judgments in Texas (Part II)