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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

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

In EJ Madison, LLC v. Pro-Tech Diesel, Inc., No. 08-17-00229-CV, 2019 WL 6242301, at *1 (Tex. App.–El Paso Nov. 22, 2019, no pet. h.), plaintiff Madison operated a trucking company and defendant Pro-Tech provided maintenance services to the trucks.  The parties entered into a non-disclosure agreement so they could work together on diesel-to-natural gas conversion kits for the trucks.  Additionally, Pro-Tech continued to provide general maintenance work for the trucks.…
Continue Reading El Paso Court of Appeals Affirms Dismissal of Trade Secrets Case

Morrison v. Profanchik, No. 05-17-01281-CV, 2019 WL 3798182 (Tex. App.–Dallas Aug. 13, 2019), supplemented, No. 05-17-01281-CV, 2019 WL 5112268 (Tex. App.–Dallas Oct. 10, 2019) is a case involving the summary judgment dismissal of counterclaims for breach of non-disclosure/non-compete agreement and misappropriation of trade secrets.  In Morrison, plaintiff Profanchik approached Stonecoat of Texas about purchasing one of its franchises.  The parties entered into a nondisclosure/noncompete agreement with the understanding that the competitor would be divulging confidential and trade secret information as part of the due diligence process.  Profanchik, however, later walked away from the deal, started a competing limestone veneer company, and sued Stonecoat and its owners for tort causes of action arising from the parties’ negotiations.…
Continue Reading Failure to Specify How Trade Secrets Are Allegedly Being Used Results in Summary Judgment Dismissal of Claims

Under trade secrets law, the inevitable disclosure doctrine is the idea that a defendant’s new employment will lead to the inevitable disclosure of a former employer’s trade secrets.  Texas courts have issued mixed holdings on the subject.  After the Texas Uniform Trade Secrets Act (TUTSA) was enacted in 2013, some speculated that its language permitting injunctive relief for “threatened misappropriation” was an implicit adoption of the inevitable disclosure doctrine.  In a recent decision, the Dallas Court of Appeals seemed to reject that speculation.…
Continue Reading Dallas Court of Appeals Holds that the Inevitable Disclosure Doctrine Cannot Be Used to Create a Fact Issue on Misappropriation of Trade Secrets

Pearl Energy Inv. Mgmt., LLC v. Gravitas Res. Corp., No. 05-18-01012-CV, 2019 WL 3729501 (Tex. App.—Dallas Aug. 7, 2019, no pet.) is a trade secrets case involving the previous version of Texas’s anti-SLAPP statute the Texas Citizens Participation Act (TCPA).  (Effective September 1, 2019, the TCPA no longer applies to trade secrets claims.)  In Pearl Energy, Gravitas, an oil and gas production company, alleged that it spent years researching and evaluating the purchase of certain natural gas assets in Utah from Anadarko.  In 2016, Gravitas approached Anadarko about purchasing the assets.  Gravitas eventually won the bid for the assets and began negotiating a purchase and sale agreement for the assets.…
Continue Reading Dallas Court of Appeals Affirms Denial of TCPA Motion in Trade Secrets Case

In M-I L.L.C. v. Q’Max Sols., Inc., No. CV H-18-1099, 2019 WL 3565104 (S.D. Tex. Aug. 6, 2019) involves the familiar fact of an employee leaving his employer and taking the employer’s trade secrets with him.  After the employer conducted a forensic investigation and discovered that the departing employee had downloaded the employer’s confidential documents before he departed, the employer sued the employee for various causes of action, including violations of the Defend Trade Secrets Act (DTSA), violations of the Texas Uniform Trade Secret (TUTSA), and breach of his non-disclosure agreement.…
Continue Reading Southern District of Texas Denies Summary Judgment In Part for Trade Secrets Claim

Through most of 2019, the Dallas Court of Appeals has refused to apply the Texas Citizens Participation Act (TCPA) to commercial litigation claims.  Goldberg v. EMR (USA Holdings) Inc., No. 05-18-00261-CV, 2019 WL 3955771 (Tex. App.–Dallas Aug. 22, 2019, no pet. h.) reverses that trend in part.  Goldberg is too complex of a case to summarize here.  Therefore, I’ll just hit the highlights:…
Continue Reading Dallas Court of Appeals Explores the TCPA in Complex New Decision

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.…
Continue Reading Austin Court of Appeals Issues Opinion on the TCPA and Conspiracy