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.
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If you have been following Texas cases on the Texas Uniform Trade Secrets Act (TUTSA), you know that a plaintiff that files a TUTSA claims will almost inevitably receive in response a motion to dismiss under Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA). This is what happened in Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet. h.), and Gaskamp provides some important reminders—for both plaintiffs and defendants—on how to handle that motion and the inevitable appeal.
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If you have been reading this blog, you know that I have frequently commented on the use of Texas’s anti-SLAPP statute the Texas Citizens Participation Act (TCPA) to defeat a Texas Uniform Trade Secrets Act (TUTSA) claim. Most of the early cases involved defendants using the TCPA to dismiss a plaintiff’s TUTSA claim. Universal Plant Services, Inc. v. Dresser-Rand Group, Inc., No. 01-17-00555-CV, 2018 WL 6695813 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) involves a plaintiff overcoming defendants’ TCPA motions.
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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.
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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.

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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.  
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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. 
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In Steves & Sons, Inc. v. JELD-WEN, Inc., No. 3:16-CV-545, 2018 WL 2172502 (E.D. Va. May 10, 2018), the Eastern District of Virginia provides an in-depth look at unjust enrichment and reasonable royalty damages under both the Defend Trade Secrets Act (DTSA) and the Texas Uniform Trade Secrets Act (TUTSA).
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Damages for misappropriation of trade secrets are generally understood as (1) lost profits, (2) defendant’s profits, or (3) a reasonable royalty. These are damages traditionally sought against a competitor. But that does not mean that a departing employee who takes trade secrets to a competitor is immune from a damage award.
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Over the course of several cases, Judge Mazzant from the Eastern District of Texas has emphasized the circumstantial nature of the evidence used to establish misappropriation of trade secrets. SPBS, Inc. v. Mobley, No. 4:18-CV-00391, 2018 WL 4185522, (E.D. Tex. Aug. 31, 2018) is a good example of the court relying on such circumstantial evidence to issue an injunction against a former employee accused of taking trade secrets.

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