Patrick Keating

Texas Trade Secrets

The TCPA Statute and Trade Secrets

The Texas Citizens Participation Act (“TCPA”) is a statute in Texas that provides protection from frivolous lawsuits to people exercising their U.S. Constitution First Amendment rights.  The law provides a defendant who is sued for exercising the First Amendment right to freedom of speech, freedom of association or the right to petition the government the ability to file a motion to dismiss the lawsuit at the outset of the case.  The statute provides that the case shall be dismissed unless the plaintiff presents the court with evidence establishing a “prima facie case for each element of the claim in question.”

Zach Wolfe is in the midst of an interesting three-part blog post series in which he discusses a May 2017 decision by the Austin Court of Appeals, Elite Auto Body, LLC v. Autocraft Bodywerks, Inc., No. 03-15-00064-CV, 2017 WL 1833495 (Tex. App.—Austin May 5, 2017).  The court concluded that a Plaintiff’s theft of trade secrets claim was, in part, subject to a TCPA motion to dismiss.  Continue reading

Texas Amends Trade Secrets Statute

The Texas legislature recently enacted an amendment to the Texas Uniform Trade Secrets Act, which becomes effective on September 1, 2017.  The substantive changes to the statute fall into three categories.

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Contractual Stipulation to Injunction

Parties to contracts often include text in the document stipulating that a breach of the agreement will cause “irreparable harm” and, therefore, justify an injunction.  These contract clauses are not a cure-all that relieves a plaintiff from the obligation to prove irreparable injury in court.  Texas courts merely consider the contract stipulation as one factor in favor of finding that a threat of irreparable injury exists.  The plaintiff must still prove that is the case with additional evidence.

The following are a few examples of court decisions following this rule: Texas Health & Human Svs. Commission v. USA, 166 F. Supp. 3d 706, 712 (N.D. Tex. 2016); Dickey’s Barbeque Restaurants, Inc. v. GEM Investment Group, LLC, No. 3:11-CV-2804-L, 2012 WL 1344352, *4 (April 18, 2012, N.D. Tex.).

photo credit: Informedmag Writing Contract Business Relation – Credit to informedmag.com via photopin (license)

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Have Fears of the DTSA Matched Reality?

More than eight months elapsed since the federal Defend Trade Secrets Act (“DTSA”) went into effect in May 2016.  This and the beginning of a new year led to me to check into how the courts applied one aspect of the statute that initially caused alarm for some people. Continue reading

Jurors Don’t Understand Trade Secrets

When presenting theft of trade secret claims to a jury, it is important for the lawyer representing the Plaintiff to explain the difference between a trade secret and a patent.  It is common for a juror to begin a case with the incorrect belief that a business must obtain a patent to be able to protect business information or techniques in litigation.  The truth, however, is that trade secrets are an alternative form of intellectual property that courts enforce through awards of damages and injunctions.

Dallas jury consultant, Jason Bloom, recently conducted a survey of approximately 1,000 Dallas, Texas residents summoned for jury duty.  82% of the prospective jurors believed, “If someone has a trade secret, then they should get a patent on it.”  This is a reminder that an important part of presenting a trade secret case to a jury is explaining the difference between trade secrets and patents.

photo credit: Wonder woman0731 School Lost and Confused Signpost. via photopin (license)

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