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
A non-disclosure agreement is a contract that allows a trade secret owner to impose contractual liability for any disclosure or misappropriation of its trade secrets. Non-disclosure agreements allow companies to disclose their trade secrets to new employees or to third-parties (like potential customers or investors) with less danger of destroying the secrecy of the trade secret. A typical non-disclosure agreement requires the other party to keep trade secrets in the strictest confidence, prohibits the other party from disclosing the information without prior written consent, and warns the other party that it cannot make use of the trade secret for his or her personal benefit. Here are five reasons why using non-disclosure agreements can benefit your company: Continue Reading Five Reasons Your Company Should Use Non-Disclosure Agreements
In May 2016, the federal government enacted the Defend Trade Secrets Act (DTSA), which provides federal civil cause of action for trade secrets misappropriation. It is similar to the state-based Uniform Trade Secret Act. One important difference, though, is the DTSA’s notice provision for non-disclosure agreements (NDAs). With the enactment of DTSA, all NDAs entered into or amended after May 11, 2016 are expected to provide notice of certain trade secret disclosure immunities to employees, contractors, or consultants. Continue Reading Time to Update Your Employee Non-Disclosure Agreements
In my December 11, 2016 post, I explained how the Southern District of Texas rejected the argument that the receipt of trade secrets pursuant to a non-disclosure agreement (NDA) is not a defense to a Texas Uniform Trade Secrets Act claim. The Western District of Texas, however, takes the opposite position in Education Management Services v. Cadero, No. SA-14-CA-587, 2014 WL 12586781, (W.D. Tex. Nov. 18, 2014), reconsideration denied, No. SA-14-CA-587, 2014 WL 12586782 (W.D. Tex. Dec. 23, 2014). Continue Reading The Opposite View: Receipt of a Trade Secret Pursuant to a Non-Disclosure Agreement is a Defense to a Trade Secrets Claim
Small businesses and starts-ups with limited legal budgets and long to-do lists now have an on-line resource available to help them comply with federal anti-discrimination laws. At the end of last year, the EEOC announced the launch of its Small Business Resource Center. In its press release, the EEOC writes:
“In addition to providing general information on EEOC’s laws and ways in which EEOC can assist small businesses, there are also answers to frequently asked questions, guidance in making employment decisions and tips for small businesses on a variety of potential workplace discrimination issues.”
Not so new news, but as reminder for Texas employers — the Texas Workforce Commission provides on-line resources for Texas employers. You can download, or the TWC will send you, a free copy of its handy reference book entitled Especially for Employers.