Patrick Keating

Texas Trade Secrets

Federal Courts Disagree Over SLAAP Statute

Many states, including Texas, enacted “anti-SLAPP” statutes to protect a person’s right to speak, petition the government, and freely associate with others.  The Texas Citizens Participation Act (“TCPA”) is one such statute.  Like other anti-SLAPP statutes, the TCPA 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 TCPA clearly applies in lawsuits pending in Texas state court.  However, federal courts in Texas issued conflicting opinions about whether the TCPA applies in federal court lawsuits that involve claims arising under Texas state law (as opposed to federal law). Continue reading

TCPA, Trade Secrets and Discovery

In a 2017 blog post, I discussed a Texas appellate court decision that was notable because it applied the Texas Citizens Participation Act (“TCPA”) statute to theft of trade secret lawsuits.  The TCPA 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.  In addition to a potential expedited dismissal, the TCPA places significant limits on the discovery a plaintiff may obtain before a trial court rules on a TCPA motion to dismiss.  The 2017 appellate court decision was the first in Texas to apply the TCPA to a theft of trade secrets claim.

The Dallas Court of Appeals recently issued an opinion in which the TCPA was, once again, applied in a theft of trade secrets claim (the “In re Spex Group” case).  While the Dallas court was not asked to determine whether the TCPA applies in such a case, the court did not question the applicability of the statute.

Chalk up In re Spex Group as another case in the column of those supporting application of the TCPA to theft of trade secret claims. Continue reading

Trade Secret Licensees

Last May, I wrote about an amendment to the Texas Uniform Trade Secret Act (“TUTSA”) that would become effective on September 1, 2017.  Now that the amendment is in effect, I looked back at one of the changes to the statute caused by the amendment that should bolster trade secret licensees’ efforts to assert theft of trade secret claims. The counter-argument would be that only the owner of the trade secret is entitled to assert the claim.

Prior to the 2017 amendment, TUTSA did not include a definition of “owner.” However, the statute did include several references to owners of trade secrets.

The 2017 amendment added a definition of “owner” that includes within the definition someone who possesses the “right to enforce rights” in the trade secret. Therefore, if the original owner of a trade secret authorizes a licensee to enforce the trade secret, the licensee falls within the new definition of “owner.”

photo credit: Thomas Hawk Speak Until the Dust Settles in the Same Specific Place via photopin (license)

Is Anyone Steering?

Until self-driving cars become common, you would not expect a car to reach its destination without a driver.

Has your business assigned an employee with the responsibility and authority to protect intellectual property?

If not, do you expect to reach your destination of intellectual property security?

photo credit: goehler.mike 300 SL via photopin (license)

Exit Interviews

Employee exit interviews are a useful tool for protecting businesses trade secrets.  Many businesses use exit interviews for a different purpose – eliciting candid answers from a former insider about what the business is doing right and wrong.  It is also a time to talk to the employee about trade secrets that may be at risk due to the employee’s departure.

Trade secrets may be at risk in two different ways.  The first risk is knowledge loss.  The second risk is inadvertent or intentional disclosure of trade secrets to a competitor. Continue reading

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