One Law Dude’s Reflections on #MeToo, and Seinfeld

You have to feel bad for us men in the workplace these days, what with the #MeToo movement and everything. I mean, we just don’t know what we’re allowed to say or do anymore.

Can you hold the door open for a lady at the office? Compliment a woman on her new dress? Roll up to the parking garage blasting “Panama” on the car stereo?

Of course, back in the “good old days,” things were not so good for women in the workplace. There was plenty of overt sexism. It was wrong, but at least the rules of polite society were better defined.

That all changed beginning with the social upheavals of the 60s. Now everything’s upside down, and we need somebody to tell us the new rules.

Fortunately, there was a TV show in the 90s that examined the new social rules, sometimes in minute detail. It was billed as a “show about nothing,” but it was actually a meticulous comedy of manners.

Seinfeld was brilliant because it explored the social world’s unique standards of conduct. You don’t want to be one of those “low talkers.” You don’t make out with your date during Schindler’s List. You stand at a certain distance behind someone at the ATM. You certainly don’t double dip.

At the same time, Seinfeld showed that these norms cannot be reduced to a code of conduct with rules, sub-rules, exceptions, and counter-exceptions. This is what distinguishes manners from the law, or at least from what the law wants to be. It’s why someone with autism might be able to memorize the NFL rulebook but struggle with simple social cues.

And it’s why us guys might have a hard time grasping the new rules for how to interact with women. Take George Costanza, for example. In Season 5, Episode 4, “The Sniffing Accountant,” George gets a lesson in appropriate workplace conduct.

In the opening scene, Elaine gushes over her new boyfriend. They met at the office:

Elaine: So, I was sitting at the reception desk, I was looking pretty hot. I was wearing my sling back pumps.

George: What are those?

Elaine: Ask your mother, you live with her now, don’t you? Anyway, so then this guy comes up to me and starts feeling my jacket through his thumb and his forefinger, like this.

Jerry: So, what did you do?

Elaine: I said, “So, what do you think?” And he said, “Gabardine?” And I said, “Yeah.” That was it.

George: Wow, just felt your material?

Elaine: Yeah, Jake Jarmel.

George: Sounds like a cool guy.

Later, George decides to try out Jake’s maneuver. After a successful job interview with Mr. Farkus for a position as a brassiere salesman, George is on a roll as he waits for the elevator. There’s an attractive woman standing next to him, so he reaches out and touches the sleeve of her jacket. It does not go well:

Ms. De Granmont: What do you think you’re doing?

George: Oh, nothing.

Ms. De Granmont: Farkus, get out here!

Farkus: Yes, Ms. De Granmont?

Ms. De Granmont: Who is this perverted little weasel?

Farkus: This is Costanza, he’s our new bra salesman. He’s supposed to start on Monday.

Ms. De Granmont: If he’s here on Monday, you’re not. Take your pick.

Farkus to George: Get out!

You have to pity George. When Jake pulled this move on Elaine, it was charming. But when George tries the same thing, it’s just creepy.

How is this fair? What is the applicable rule?

The problem, of course, is that all men are not created equal. Jake is handsome and smooth. George is short and bald and awkward. But you couldn’t have an employee handbook that says “debonair men may touch women’s clothing and comment on it; others are prohibited.”

That’s the difference between manners and law. This episode teaches us two things about social conventions: they are hard to rigorously define, and they are decidedly unequal as applied to different people.

This is just not fair, us dudes tend to think. How are we supposed to navigate the gray areas of acceptable conduct towards women?

You hear this kind of complaint a lot from certain guys. But then a funny thing happened on the way to Monk’s Diner. The #MeToo movement exploded, and it exposed an ugly truth: a lot of men have done a lot of really horrible things to women at work.

Let’s just take some of the obvious public examples:

Harvey Weinstein
Matt Lauer
Al Franken
Bill Cosby
Donald Trump

Obviously, some of their alleged offenses were worse than others. But all of them have one thing in common: these men allegedly did things that everybody knows you shouldn’t do. These things were wrong before the Sexual Revolution, and they are wrong after it. They are not gray areas.

Not only that, I’d wager that part of the attraction for these men was knowing the things were wrong. That’s the whole point. Proving you’re a big shot guy who can take advantage of women and get away with it. “When you’re a celebrity they let you do it.”

Of course, everyone is innocent until proven guilty . . . yadda, yadda, yadda. But let’s assume for the sake of argument these men did the things they’re accused of. One defense they cannot assert in good faith is “I didn’t know it was wrong.”

That’s why the common lament of “we just don’t know what’s ok anymore” rings a little hollow to me.

And that brings me back to Seinfeld. Specifically, Season 3, Episode 12, “The Red Dot.” It’s another one of George’s misadventures at work. George has an affair with the cleaning lady at his office, leading to this confrontation with the boss:

Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?

George: Who said that?

Boss: She did.

George: Was that wrong? [audience laughs . . .] Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, [more laughs] you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.

Boss: You’re fired.

This time we don’t pity George at all. It’s not like the fabric incident at the brassiere company, where we laughed because George was so pitiful. In this case, the “was that wrong?” line gets laughs precisely because it’s so absurd. Of course it’s wrong!

And once again, Seinfeld delivers an insightful lesson about social norms. Some rules don’t have to be written down; they’re just obvious. The employee handbook doesn’t need to say “employees may not have sexual relations with the housekeeping staff in the office.”

So men, here’s my modest proposal on sexual harassment: let’s agree not to tolerate the stuff we all know is wrong, and not complain so much that there will inevitably be borderline cases.

Don’t get me wrong. I’m not saying that women should just chill about the minor incidents and only complain about major felonies. I’ve got a wife, a mom, sisters, a college-age daughter–I don’t want them or any woman to be subjected to even minor incidents of harassment.

I’m also not saying that men are totally off base when they complain that the standards are so ill-defined today. There is at least a grain of truth to that.

But maybe us guys could focus more on cutting out the stuff we know is bad. I think #MeToo has done a great service by shining a light on those things.

Was that wrong?

________________________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Thanks to Rebecca Wolfe and Hailey Wolfe for their advice on my initial draft (though I bear full responsibility for the final content).

Mysteries of Texas Non-Compete Law, Part 2: Reformation

We’re celebrating the 30th anniversary of the Texas non-compete statute by examining some of the great unanswered questions of Texas non-compete law. Part 1 asked whether it matters if the information provided by the employer is really confidential. This Part 2 asks whether reformation is available when the non-compete is missing a key limitation.

Are you studying for the California bar exam? If so, you probably know that the California Bar announced that it “inadvertently” leaked this year’s bar exam topics to a group of law school deans. To be fair to all test takers, the bar examiners decided to release the list of topics publicly.

I’m sure everyone studying for the California bar feels much better now.

In light of this disturbing news, I must come clean and disclose a phone call I recently received:

[ring tone: guitar intro to Sweet Child of Mine]

“Wolfe here.”

“Yes, hi, this is the Texas Board of Law Examiners. For the first time ever, we’re including a question about non-compete litigation on the bar exam this year. We were hoping we could run it by you.”

“Oh, cool, and you’re calling me because you saw my blog Five Minute Law and my YouTube channel That Non-Compete Lawyer?”

“Uh . . . well, actually you’re the ninth person we’ve tried. Everyone else is on vacation.”

“Ok, cool. Send it over.”*

The problem is that I know a few Texas law students through my local Inn of Court, so I could be accused of leaking the question to them. To avoid any appearance of impropriety, I am now making the question available to my readers—all thirteen of them (hi, Mom!).

Ok, Fivers, here’s the question:

W&O Supply Company sells supplies like the Garbarino centrifugal and positive displacement pump to the marine industry. Four of W&O’s employees—a branch manager, outside salesman, warehouse manager, and inside salesman—left W&O to start a competing business.

Each employee had signed W&O’s standard non-compete. The non-compete prohibits diverting, or assisting in diverting, any customer from W&O to a competitor. The non-compete is limited to any area within 100 miles of any W&O branch but contains no time limitation.

While working for W&O, the employees received confidential information regarding W&O’s supplier costs, customer purchasing history, and pricing. After leaving W&O and forming the competing business, the employees solicited sales from W&O customers.

W&O filed suit against the former employees in U.S. District Court in Houston, Texas, alleging breach of the non-competes and seeking a preliminary injunction. The employees filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), arguing the non-compete is unenforceable on its face because it contains no time limitation.

W&O filed a response arguing that the non-compete statute requires the court to reform the non-compete to include a reasonable time limitation and that, even without reformation, the court could still grant a preliminary injunction enforcing the non-compete for a reasonable time period.

The correct ruling on the motion is:

A. Denied. W&O’s allegations are sufficient to state a plausible claim for relief. W&O could prove some set of facts showing that a time limitation of a year is reasonable.

B. Denied. Reformation of an overbroad non-compete is mandatory under the Texas non-compete statute, Tex. Bus. & Com. Code § 15.51(c).

C. Denied. The court can enter a preliminary injunction enforcing the non-compete to a limited extent. Whether the non-compete should be reformed is an issue for final judgment.

D. Granted. While the non-compete statute requires the court to reform a time limitation that is too long, the court cannot reform a non-compete that contains no time limitation whatsoever.

So what’s the best answer? No peeking.

Ha! It’s a trick question! You could make a reasonable case for each one of these answers. That’s why it’s an unanswered question of Texas non-compete law. No question like this should ever appear on the bar exam.

But if you ask U.S. District Judge Kenneth Hoyt, he would say D is the best answer. I know that because I’ve read his opinion in W&O Supply, Inc. v. Pitre, No. 4:19-CV-00153, 2019 WL 15592090 (S.D. Tex. Apr. 10, 2019).

The facts of the case were fairly close to the simplified version I outlined above. The key fact: the non-competes had no time limitation. The legal question was whether W&O was entitled to reformation. Specifically, should the judge effectively “rewrite” the agreement to add a reasonable time limitation?

Because we are all textualists now, let us start with the text of the statute. It says, in pertinent part:

If the covenant . . . contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable . . .

Tex. Bus. & Com. Code § 15.51(c).

The “shall reform” language indicates the legislature intended reformation to be mandatory. But the clause starts with a significant “if.” Reformation is only mandatory if the non-compete “contains limitations as to time, geographical area, or scope of activity to be restrained . . .”

That “if” clause is what we call a “condition precedent” (which, to complicate matters further, is pronounced pree-see-dent, not preh-suh-dent). That means the rest of the clause only applies if the condition is met.

So, if a non-compete has limitations that are unreasonably broad, the condition precedent is satisfied, and reformation is mandatory. But if the non-compete has no time limitation whatsoever, then the condition precedent is not met, and reformation is not required.

That’s effectively what the employees in W&O Supply argued, and the judge agreed:

It is the Court’s view that it is empowered only to reform existing terms. Where the Agreement lacks a critical term, such as a time limitation, placing a time limitation in the Agreement is to rewrite the Agreement. The Agreement lacks an unenforceable provision that the Court can revise; therefore, reformation is impermissible.

W&O Supply, 2019 WL 15592090, at *3.

The unavailability of reformation was not academic. Because the non-competes were unenforceable and could not be reformed, the court not only denied a preliminary injunction, it dismissed the lawsuit. Id.

So why is the availability of reformation an unanswered question?

Well, W&O Supply is just one case, and there are other arguments that could be made.

First, you could argue that the court in W&O Supply read the non-compete statute too literally. The purpose of the statute is to provide for reformation of overbroad non-competes. One might argue this purpose should be served as much when the agreement lacks a limitation as when the limitation is too broad.

Second, there are cases saying the court can enter a preliminary or temporary injunction enforcing an overbroad non-compete to a limited extent. See, e.g., Transperfect Translations, Inc. v. Leslie, 594 F.Supp.2d 742, 756 (S.D. Tex. 2009) (noting uncertainty in Texas cases and holding that the non-compete would be temporarily reformed for the purpose of entering a preliminary injunction).

Third, the statute also requires a geographic limitation. See Tranter Inc. v. Liss, No. 02-13-00167-CV, 2014 WL 1257278, at *5 (Tex. App.—Fort Worth Mar. 27, 2014) (non-compete that contained no geographic restriction at all was unreasonable and unenforceable as written). Yet there are cases enforcing non-competes that contain no geographic limitation whatsoever. See Gallagher Healthcare Ins. Servs. v. Vogelsang, 312 S.W.3d 640, 654-55 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A number of courts have held that a non-compete covenant that is limited to the employee’s clients is a reasonable alternative to a geographical limit”).

If the absence of a geographic limitation is not fatal to a non-compete, why should the absence of a time limitation be any different?

They’re going to put that one in the essay section.

__________________________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He doesn’t really have that ring tone, but it would be cooler if he did.

*It should be obvious that all the stuff above about the Texas bar exam is made up. Then again, the news about the California bar exam sounded fake too.

Totally Apolitical Lessons for Lawyers from the Mueller Report

If you’re a lawyer, or if you’ve ever had a lawyer, you’ve probably had a conversation something like this.

It was a conference call I had with a Texas client—let’s call him Fred—who had been dragged into a big lawsuit in another state. We had our local counsel on the line—let’s call him Frank. Frank was an accomplished litigator from the place where the client had been sued.

Frank had a way with words. He meticulously yet simply outlined the legal issues facing our client. He skillfully walked through the pros and cons of the strategy decisions we faced. In short, he laid out all the factors beautifully. I was impressed.

Our client, Fred, was a self-made businessman who had done quite well for himself. He was smart, but plain spoken. Fred’s reaction to Frank’s brilliant presentation of the issues? “Ok, so what should I do?”

That, in a nutshell, is the problem with the Mueller report.

The Mueller Report

Obviously, people have different political views of the Mueller report and the investigation that produced it. Let’s set that aside for a moment.

I’ll start with some easy things we can all agree on. The report has two volumes. I don’t think that’s controversial.

Volume I is about whether Trump and his campaign conspired or coordinated with the Russians to interfere in the 2016 presidential election.

Now we’re slightly drifting into the controversy lane, because some people would say Volume I is about “collusion.” But Volume I is careful to point out that it did not analyze “collusion,” which is not a legal term. See Vol I, p. 2 (“we applied the framework of conspiracy law, not the concept of ‘collusion’”).

Volume I stated a conclusion. The conclusion was: “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” (Vol I, p. 2) While some people might dispute this conclusion, I don’t think anyone disputes that this was the conclusion.

Volume II was about obstruction of justice. I think everyone agrees on that, although some people might think obstruction of justice should not have been investigated.

In contrast to Volume I, Volume II did not state a conclusion.

Now we’re getting controversial (sort of). Because Trump and his team have claimed that the Mueller report cleared Trump on obstruction of justice. “No collusion, no obstruction.” “Total exoneration.” “Case closed.”

But that claim is simply false. Any intelligent and honest person who has read Volume II would have to concede that.

And this shows us the impossibility of a completely “apolitical” or “neutral” discussion of the Mueller report. Even the simplest objective observation about the report directly contradicts things the President has said about it.

I’m not saying this to bash Trump. It’s just a fact.

But I promised no politics. So let’s get back to the things we can all agree on. Like why didn’t Volume II state a conclusion on obstruction of justice?

Oh crap. Controversy again. Trump’s team would say Volume II didn’t state a conclusion on obstruction of justice because there was insufficient evidence that he obstructed justice.

But again, that would be demonstrably not true. The report says the opposite: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.” (Vol. II, p. 182)

So why no conclusion on obstruction? The report identifies two related reasons: (1) the OLC memo and (2) the difficulty of the question.

A Strange Asymmetry

The Office of Legal Counsel memo is an internal Justice Department policy that says you cannot indict a sitting President (there is an original 1973 memo and a 2000 update). This is a hotly contested issue of constitutional law. But the Mueller team decided they were bound to follow this policy.

And then they went a step further. The Mueller team decided that, because they could not charge the President with obstruction of justice, they could not state a conclusion that the President obstructed justice, even if that’s what the evidence established. The Conclusion of Volume II stated: “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct.”

I think this was the most important decision the Special Counsel made, and I think it was the wrong decision.

It produced a strange asymmetry: if the evidence established that the President did not obstruct justice, the report would say so; but if the evidence established that the President did obstruct justice, the report would not say so.

And all of this because of that pesky OLC memo, right?

If only it were that simple. The Conclusion to Volume II adds this: “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.”

Those “difficult issues” are largely questions of the President’s intent, where the report takes pains to lay out the evidence both for and against corrupt intent.

The statement about difficult issues muddies the water. Putting it all together, here’s what I think Volume II is saying:

The evidence does not clearly establish that Trump did not obstruct justice. If it did, we would say so.
There is evidence that Trump obstructed justice, but the evidence presents some difficult issues.
We are not allowed to state a conclusion that Trump obstructed justice.
Because we are not allowed to state a conclusion that Trump obstructed justice, we are not going to bother with trying to resolve the “difficult issues” presented by the evidence of obstruction of justice.

The result is a report that has the same problem as Frank’s advice, recounted earlier. It leaves the public and Congress in the same position as Fred. They are left asking “ok, so what should we do?”

arches-architectural-design-architecture-135018 — This ceiling is symmetrical. Mueller’s methodology was not.

What should we do? The Mueller report doesn’t tell us. It is much like a legal memo from a lawyer to a private client laying out the arguments and evidence on both sides of an issue, but not giving the client a recommendation on what to do.

But is that wrong? Was it the Special Counsel’s job to tell Congress what it should do? Is it the lawyer’s job to recommend to the client what decision to make?

In my opinion, the answer to these questions is a qualified yes.

Answer the Question

Now, don’t get me wrong. I’m not saying that the Mueller team’s decision not to state a conclusion on obstruction of justice was unreasonable. There is at least a reasonable argument that if you can’t indict the President for obstruction of justice, then you shouldn’t accuse the President of obstruction of justice. The report explains this.

And I’m not saying the Special Counsel acted in bad faith. I don’t think the Mueller team avoided answering the difficult issues because of laziness, fear of being criticized, or some other inappropriate reason.

But I do think the Special Counsel came up short. The report should have stated a conclusion, yes or no, on whether the evidence established that Trump obstructed justice.

If the answer was no, that would likely be the end of it. Sure, some Democrats would have tried to keep the issue alive, but as a practical matter the obstruction of justice charge would be dead.

If the answer was yes, the report could have stated the conclusion that the President obstructed justice. Then it could have simply added that the President could not be indicted because of the OLC memo. At that point the ball would be squarely in Congress’s court.

Either way, it would be an improvement over the current situation. As it stands, we are left to wonder what the Mueller team would have said. I expect some member of Congress will ask Mueller this question when he testifies this week, and that he will avoid giving a direct answer.

But is there any group of people anywhere in the world more qualified to answer the question than Mueller’s team? Whatever you may think of their political allegiances or motivations, these are some of the top lawyers in the country. They have spent hundreds of hours of their professional lives investigating the facts and analyzing the law.

That doesn’t mean we would all have to agree with their conclusion (and you can guarantee that, either way, a large percentage of voters would not). But wouldn’t it be nice to know what they think?

The Lawyer’s Assignment

The same is true when us “ordinary” lawyers give advice to clients. No one is in a better position to recommend to the client what to do than us.

There are, of course, exceptions. The most obvious reason not to give the client a recommendation is if the client doesn’t want one. If a client says “analyze the issues and give me all the pros and cons, but don’t tell me what you think I should do,” then sure, follow those instructions.

But that’s not the way it usually goes down.

Usually the client does not identify the scope of the assignment so precisely. Clients come to lawyers with problems. They rely on lawyers not only to answer their questions, but to make sure the questions they ask are the right ones. The scope of the assignment is usually somewhat open-ended.

Lawyers can be reluctant to give recommendations. There are several reasons for this. An obvious one, especially for the cynical, is that lawyers don’t want to get sued for malpractice. If lawyers don’t give explicit recommendations, one might think, they can’t get sued for giving the wrong recommendation.

That is surely a factor, but I think it’s a minor factor. There are more fundamental reasons lawyers like to leave it to the client to decide what to do.

First, there is the simple human fear of getting criticized for making the wrong recommendation. Legal malpractice suits are very rare, and judgment calls do not make for good malpractice claims. But being blamed for recommending a decision that does not turn out well is all too common. Hindsight is 20/20, and no one likes getting thrown under the bus.

Second, there is the simple fact that sometimes the client doesn’t really want the lawyer’s recommendation. What some people actually want are legal reasons to support the decisions they have already made in their minds. In these situations, lawyers who are good at keeping clients don’t want to recommend what to do until they figure out what the client already wants to do. You don’t want to take the risk that you recommend the opposite.

In both cases, the lawyer’s impulse to avoid giving a sincere recommendation on what to do is understandable, but not commendable.

Just as the Mueller team was in a unique position to give an opinion on the obstruction question, a lawyer is a unique position to give a client guidance on the best thing to do. Who is better qualified to give a recommendation?

Of course, there are often things the lawyer does not know. It can be hard to gauge the client’s risk tolerance. There can be unidentified factors, especially personal factors, that bear on the decision, e.g. the lawyer may not appreciate that taking that settlement offer is better than the emotional toll of two years of litigation. And it is even possible—gasp!—that there are undisclosed facts the client knows but the lawyer doesn’t.

But factors like this underscore the importance of understanding the client. You have to get to know Fred before you tell him what to do.

__________________________________________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

Mysteries of Texas Non-Compete Law, Part 1

Nineteen eighty nine, the number . . .

A big anniversary is coming at the end of the summer. Yes, August 1 will be the 38th anniversary of the debut broadcast of MTV, which kicked off with “Video Killed the Radio Star.”

But I’m talking about a different anniversary: the 30th anniversary of the Texas non-compete statute, which became effective just a few weeks later on August 28, 1989.

That was a long time ago. The #1 song that week was “Right Here Waiting” by Richard Marx. I was probably sweating through summer marching band practice at Crockett High School in south Austin, Texas. With no cell phone, no email, and no social media.

It was not long before the statute was amended—in 1993—but otherwise the statute has remained the same for 30 years.

Since that time, the Texas non-compete statute has traveled a long and winding road through the Texas courts. I won’t bore you with the details, but in those 30 years there have been hundreds of Texas appellate opinions applying the statute, including at least a dozen opinions from the Texas Supreme Court. Plus opinions by federal courts applying the Texas statute.

With so many judges writing so many opinions, you would think that any big questions about application of the Texas non-compete statute would be answered by now.

But you would be wrong.

It is surprising how many fundamental questions about Texas non-compete law remain unanswered today. I talked about some of these at a presentation a few years ago called “Advanced Non-Competes: What You Don’t Know You Don’t Know Can Hurt You.”

To celebrate the upcoming 30th anniversary, I’m revisiting that topic. It will be like an MTV countdown, but with non-competes, and less spandex. I’ll pick the most important unanswered questions of Texas non-compete law, explain each one, and look at how some recent court decisions have tried to answer them.

To kick this off, I’m starting with perhaps the most basic unanswered question: to enforce a non-compete against a departing employee, does the employer have to prove that the information it provided to the employee was actually confidential?

And the subsidiary question: how “confidential” or valuable does that confidential information need to be?

But first, let’s back up a bit to put these questions in context. The Texas non-compete statute has two requirements. First, the non-compete has to be “ancillary to an otherwise enforceable agreement.” Second, the non-compete has to be reasonable.

For now, let’s put aside the whole “reasonableness” question and focus on the “ancillary” requirement. What does it mean for a non-compete to be ancillary to an otherwise enforceable agreement?

The Texas Supreme Court has told us one way this “ancillary” requirement can be satisfied: an employer can tie a non-compete to a confidentiality agreement with an employee.

An agreement to provide the employee specialized training can also satisfy this requirement. That’s why my form, the Plain-Language Non-Compete, contains both an agreement to provide confidential information and an agreement to provide specialized training.

But a confidentiality agreement is still the most common way Texas employers try to satisfy the ancillary requirement. There are thousands of Texas non-competes written this way. The employer agrees to provide the employee with confidential information in connection with the employee’s work, and the employee agrees to a non-compete.

Is it enough for the employer to say these magic words? If the agreement says the employee will receive confidential information, is the non-compete enforceable? And what if the employment is at-will, as in 99% of cases? Is there really an “otherwise enforceable agreement” if the employer can fire the employee five minutes after she signs the agreement? Would the employee still be bound by the non-compete?

Texas courts struggled with questions like this for over two decades, but the Texas Supreme Court finally decided to make things simpler in a case called Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006).

The Sheshunoff court solved the problem this way: a non-compete is ancillary to an otherwise enforceable agreement if the employer agrees to provide the employee with confidential information and the employer later provides the confidential information. The non-compete becomes enforceable not at the moment the employee signs the non-compete, but at the moment the employee receives the confidential information.

So, if the employer provided confidential information, the ancillary requirement is satisfied, and the non-compete is potentially enforceable (if it’s reasonable). If the employer did not provide confidential information, the ancillary requirement is not satisfied, and the non-compete is unenforceable.

Of course, it’s usually not that simple. You might occasionally get a case where, say, the employee signed a non-compete but quit a few days later, without receiving any information. But in the vast majority of cases the employee received some information from the employer that is at least arguably confidential. It may be as simple as learning the company’s prices, the identity of the company’s customers, and information about the customers.

This is where the rubber meets the road. Is the ancillary requirement satisfied when the employee simply received the same kind of basic information that employees always receive?

This is the unanswered question, and there are two views.

The employer’s argument focuses on a short but important sentence from the Sheshunoff opinion. Addressing the “ancillary to an otherwise enforceable agreement” element of the statute, the Sheshunoff court said:

Concerns that have driven disputes over whether a covenant is ancillary to an otherwise enforceable agreement—such as the amount of information an employee has received, its importance, its true degree of confidentiality, and the time period over which it is received—are better addressed in determining whether and to what extent a restraint on competition is justified.

Id. at 655-56.

Let me translate. The court is saying let’s not sweat the details about the confidential information when we’re applying the “ancillary” requirement of the statute. We can worry about the details when we apply the second requirement of the statute, reasonableness.

So, for example, if the employee only received a tiny bit of information, or if the information was not highly confidential, the court can consider that in determining whether the scope of the non-compete is reasonable.

The implication is that the amount of information, its importance, and its “true degree of confidentiality” don’t make a difference to whether the non-compete is “ancillary to an otherwise enforceable agreement.” One could interpret Sheshunoff to mean that, for the purpose of the ancillary requirement, it’s enough to show that the employee received a little bit of confidential information, and the information doesn’t have to be that confidential, or even important.

The trouble with this interpretation is that it threatens to render the statute’s “ancillary” requirement effectively meaningless. That brings me to the employee’s argument.

It don’t mean nothin’

In practice, the employee will almost always receive information that the employer claims is confidential. Let’s take a typical sales position. A sales person is always going to receive information about who her customers are, how much they pay, and what they buy. Usually you can’t get all that information just by Googling it. But it’s not the secret formula to Coke, either. The sales person could probably put together the same information using a web browser and a telephone.

The employee’s argument is that it’s not enough to show the employee received information that the employer can plausibly argue was confidential. The employer has to prove the information provided to the employee was actually confidential. This simply follows from Sheshunoff’s requirement that the employer prove that it performed its promise to provide the confidential information.

It cannot be enough, this argument says, for the employer merely to recite the “magic words” in the agreement and then say that the information is confidential. That would make the ancillary requirement virtually meaningless, and we should not assume the legislature included the ancillary requirement for no reason.

In other words, the requirement of providing confidential information must have some teeth to it.

This was the view of the federal district court in the recent case Miner, Ltd. v. Anguiano, No. EP-19-CV-00082-FM, 2019 WL 2290562, at *9 (W.D. Tex. May 29, 2019). The employer argued that the employee, an account executive, was privy to confidential information because the confidential information was required for the work to be performed. At the preliminary injunction hearing, the employer said “the confidential information includes things like business strategy, where are we going, pricing information, margins.”

That sounds like plausibly confidential information. But the court was not having it. “Plaintiff has not persuaded this court that this case involved the dissemination of ‘confidential information.’”

The district court cited DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990), where “the Texas Supreme Court rejected the plaintiff’s claim that its supposed confidential information—the identity of their customers, pricing policies, cost factors, and bidding strategies—was protectable under the confidentiality agreement.” The court in Wackenhut explained that the plaintiff “failed to show that its customers could not readily be identified by someone outside its employ, that such knowledge carried some competitive advantage, or that its customers’ needs could not be ascertained simply by inquiry addressed to those customers themselves.”

Applying Wackenhut, the federal district court found that the employer had failed to make a strong enough case that the information it provided the employee was truly confidential:

Like Wackenhut, Plaintiff has not shown its business practices, pricing, margin, or strategy were uniquely developed or not readily accessible. Furthermore, Plaintiff’s alleged “confidential information” is vague at best. Plaintiff struggles to identify and expand upon the alleged confidential information. The court will not infer a fact into existence. The Employment Agreement lacks consideration and is unenforceable.

Finding the non-compete unenforceable, the court in Miner, Ltd. v. Anguiano declined to issue a preliminary injunction to enforce it. (The court granted a preliminary injunction on other grounds.)

The quoted section from Miner suggests that application of the “ancillary” requirement in Texas non-compete litigation still raises a fundamental question: how confidential is “confidential”?

The Sheshunoff opinion said don’t worry too much about the “importance” or “true degree of confidentiality” of the information at issue. But Miner suggests that Texas judges are not going to assume the information is confidential just because the employer says it is. At least not until the Texas Supreme Court says they have to.

Like Richard Marx said, I’ll be right here waiting.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

Ethics Tips for Law Bloggers

I know what you’re thinking. “A blog post about blogs? Wow, Five Minute Law has really jumped the shark.”

But if you’re a lawyer who blogs, a lawyer thinking about blogging, or just someone who reads lawyer blogs, I think you’ll find these ethics tips worthwhile. And so “meta.”

If you also want practical tips on lawyer blogging, check out my UT Law CLE webcast with legal marketing expert Stacey E. Burke, Lawyer Blogging: Ethical Issues and Practical Tips.

These tips focus on Texas ethics rules, because that’s where I practice, but other states have similar ethics rules, so read on, non-Texas lawyers.

Ethics Tip #1: Don’t imply an attorney-client relationship

There are two things you don’t want your blog post to do: form an attorney-client relationship or provide legal advice.

Forming an attorney-client relationship requires that the client communicate an intent that the lawyer provide legal services and that the lawyer consent to do so. The grey area is that the lawyer’s consent can be express or implied. Implied consent happens when the lawyer knows or reasonably should know that the client is reasonably relying on the lawyer to provide the services.

It is unlikely that a person would form an attorney-client relationship by reading a lawyer’s blog post. No one reading a blog post would reasonably think “that lawyer just agreed to provide me with legal services.”

But sometimes people are unreasonable. So be careful not to write anything that implies you are agreeing to provide the reader with legal services. And if you want to be extra cautious, include a disclaimer. On my YouTube channel, for example, I say “Zach Wolfe is not your lawyer (unless you have signed an engagement agreement with his firm).”

The danger of an inadvertent attorney-client relationship is greater in the comments section. Imagine a reader comments, “thanks for the helpful post about non-competes” and then asks if you think his non-compete is enforceable. (Something like this has happened to me.) Don’t ignore the comment, but make sure your response does not imply that you have agreed to be that guy’s lawyer.

The second thing to avoid is related, but thornier: legal advice. It’s related because if the person reading your blog post is not your client, then generally you can’t be held responsible for giving that person bad legal advice. It’s thornier because the whole point of many blog posts is to give guidance based on your expertise. Of course it’s legal advice, in a sense.

So there is no perfect solution to this problem, but it is a good practice to include a disclaimer. The best disclaimer I’ve seen was on a Twitter profile: “Expressly incorporates all disclaimers of all Twitter lawyers everywhere.”

But seriously, a disclaimer can clarify that your expert analysis is not legal advice for anyone’s specific situation. Again, that should be obvious, but it doesn’t hurt to say it.

Ethics Tip #2: Be aware of potential issue conflicts

You know you have arrived as a law blogger when opposing counsel cites a statement from your blog post against you in the courtroom. That is the greatest compliment.

But this points out a risk that makes lawyers nervous about expressing opinions on legal issues: issue conflicts. There is always the risk that an opinion in your blog post could conflict with the position of your client in a present or future case. The situation is analogous to “issue conflicts” that can arise when a lawyer advocates for conflicting positions in different litigations.

Considering this danger of issue conflicts, law bloggers have essentially three choices:

Never express an opinion on a legal issue; it could be cited against you.
Say whatever you want; it’s just your personal opinion.
Express educated opinions about legal issues in your practice area, but be careful how you do it.

Choice 1 strikes me as overly cautious. If you’re that risk averse, then blogging probably isn’t for you in the first place. And if you are blogging, one of the best ways to develop a reputation as a “thought leader” in your practice area is to express opinions. You’re a blogger, not a reporter.

But Choice 2 goes too far the other way. I respect the attitude of saying whatever the heck you think, but if you want to get and keep clients, you should at least consider how your opinions could impact clients and potential clients.

The prudential considerations are obvious. Your client probably won’t be happy if you express an opinion directly adverse to the client’s position in a pending lawsuit. In some cases, the issue conflict might even present an ethical issue.

The rules on issue conflicts are fuzzy. Here is comment 24 to Model Rule 1.7 on conflicts of interest:

Applying this to law blogs, we essentially get the following rule: a lawyer taking an inconsistent position in a blog post is generally not a conflict of interest, except in the rare case where it would materially limit the lawyer’s effectiveness in representing the client.

So it depends. Let’s take three different opinions as examples:

Texas should only allow non-competes in the sale of a business.
Under Texas law, the employer has the burden to prove that a non-compete is reasonable.
The Texas Citizens Participation Act (TCPA) applies to a claim that an employee misappropriated trade secrets.

These are different types of opinions. No. 1 is a personal opinion about what the law should be. No. 2 is a plain-vanilla statement about what the law is. No. 3 is somewhere in between.

I doubt that expressing a personal opinion about what the law should be would ever violate an ethical duty to a client, especially when the First Amendment is factored in. If you’re prosecuting a drug offense and the defense attorney cites your public statement that marijuana should be legalized, the response is easy: that was just my personal opinion. It’s a free country.

But exercising your freedom of speech could present a practical problem. If your practice is defending medical malpractice claims, your clients probably won’t be too excited if you publish a blog post opining that caps on pain and suffering damages in med mal cases should be abolished.

The second kind of statement—simply stating what the law is on a basic issue—is also unlikely to create an ethical issue. That is, unless you take a contrary position in court. Let’s say I write a blog post saying the statute of limitations for a certain claim is four years, and then in court I say it’s two years. That kind of stark conflict is going to hurt my credibility.

The solution to this problem is fairly simple: be accurate in your statements about what the law is, and don’t take unfounded positions in court.

Opinion 3 is a harder case. When you express an opinion about an unsettled question that is troubling the courts, you could say it’s just your personal opinion. And judges should understand the difference between your personal opinion on a difficult legal issue and your role as an advocate for your client.

But the reality is that many judges are more formalistic in their thinking. If the judge thinks there is only one “right” answer to the legal issue, your conflicting statements about that issue could weaken your position in the eyes of the court. One could argue that “materially limits” your effectiveness in the lawsuit.

Assuming your opinion could hurt your client—even if it shouldn’t—do you violate an ethical duty to your client if you express an opinion on an unsettled legal issue that goes against your client’s position? Generally, I say no.

But that’s just my opinion, man.

Ethics Tip #3: Don’t say you “specialize”

After that difficult issue, let’s go to a simple rule.

Texas Rule of Professional Conduct 7.04 generally prohibits lawyers from saying they “specialize” in a certain area of law. There are exceptions, most notably if you are certified by the Texas Board of Legal Specialization. Unless you fit one of the exceptions, you should not say that you “specialize” or that you are a “specialist.”

Texas lawyers break this rule more often than you might think. If I see a Texas lawyer say in a blog post that he “specializes” in some area of law that I know the Texas Board of Legal Specialization doesn’t recognize as a specialty, I’m going to raise an eyebrow.

The solution to this problem is also simple. Just don’t use the word “specialize.” Say that your practice “focuses” on a certain area of law, and you should be fine.

Does this put form over substance? Sure, but the Texas State Bar seems to be comfortable drawing the line here.

Ethics Tip #4: Remember that a client’s “confidential information” includes non-confidential information

This may be the most counter-intuitive tip.

Suppose you represent a client in a bitter business dispute that goes all the way through trial and appeal. There’s a transcript of the trial testimony on file with the trial court, plus an appellate court opinion detailing the sordid facts of the case. So you’re free to write about the facts in a blog post without client permission, right? I mean, it’s “public record.”

Not so fast. Look at Texas Rule of Professional Conduct 1.05(a). “Confidential information” includes both “privileged information” and “unprivileged client information.”

Privileged information is easy to understand. But the definition of “unprivileged client information” is surprising: “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”

Read that again. Confidential information includes all unprivileged information:

relating to a client or furnished by the client and
acquired “during the course of” or “by reason of” representation of the client.

This is an extraordinarily broad definition. It doesn’t matter whether the information is publicly available. If the information “relates” to the client and you obtained it during the course of the representation, it’s confidential.

That means, generally, you can’t publish such information in a blog post. Rule 1.05(b) says a lawyer may not “reveal” confidential information or “use” confidential information to the client’s disadvantage.

There are, of course, exceptions, e.g., when “the client consents after consultation.” See Rule 1.05(b) and (c). But the bottom line is that in most cases if you want to say anything about a client’s case in a blog post, you’re going to have to get the client’s informed consent.

Can this be right? The press is free to write an article discussing all the facts of a case that are available in the public record. But if I represented one of the parties to the case, you’re telling me I can’t blog about the facts, even when I’m portraying my client in a positive light.

Here’s a possible solution: You could make a case that you’re not violating client confidentiality by focusing on the rule’s use of the word “reveal.” Implicit in the word reveal is the idea that you are communicating something not already known.

That’s the textualist case for allowing lawyers to blog about the facts of their cases. And there’s a non-textualist argument as well: surely, despite the literal language of the rule, a common-sense interpretation would allow a lawyer to write a blog post that discusses facts that have already become public, provided the discussion doesn’t disadvantage the client.

Maybe, but don’t expect help from the American Bar Association. ABA Formal Opinion 480 on lawyer blogging says the rule means what it says: lawyers cannot blog about “unprivileged confidential information” without permission, even if the information is not really confidential.

Unless an exception applies, the ABA says “a lawyer is prohibited from commenting publicly about any information related to a representation.” And it doesn’t matter if the information is in the public record: “information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality.”

There’s one obvious solution: just get client consent. But it can be awkward to contact a client or former client every time you want to include a little war story in your next blog post.

There’s an easier way to avoid disclosing “unprivileged confidential information.” Just don’t name names. When you describe the facts of a case you’ve handled, don’t name the parties. Just describe the situation generically, or as a hypothetical.

This will sometimes solve the problem, but be careful. As the ABA opinion points out, if your description is specific enough that the reader can figure out who you’re talking about, you may still be violating the confidentiality rule. “A violation is not avoided by describing public commentary as a ‘hypothetical,’” the opinion says, “if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.”

And hypotheticals can sound like real cases, especially when you handle the same type of case over and over. When I describe a hypothetical departing employee lawsuit, I sometimes wonder if a former client might think I’m talking about him, only because the fact patterns tend to be so similar.

Here again, a disclaimer may be helpful. On my LinkedIn profile, for example, I say: “Hypotheticals are based on my general experience and reading, not particular actual cases.”

Ethics Tip #5: File your blog post if it contains “advertising”

Texas lawyers must file any advertisement in the public media with the Advertising Review Committee of the State Bar. See Rule 7.07(a). So lawyer bloggers have two options: put as much advertising as you want in your blog post and file it, or avoid saying anything in your blog post that will turn it into advertising.

Simultaneous filing with the State Bar is a pain (and there is a fee), so most lawyers will opt for the latter. But when is a blog post considered advertising?

The Texas ethics rules don’t expressly define “advertisement” or “advertising.” But the State Bar has provided guidance in Interpretive Comment 17: “Blogs or status updates considered to be educational or informational in nature are not required to be filed.”

So if you’re trying to avoid making your blog post an advertisement, “educational or informational” is your mantra. To avoid an ethical issue, you should aim to educate and inform your audience, not to brag about yourself. And this usually makes for a better post anyway.

But even when you’re trying to educate and inform, it’s easy to stray into content that could be considered advertising.

Here are three things likely to turn a lawyer’s “educational or informational” blog post into advertising:

Promoting good results obtained for a client
Touting the lawyer’s experience or qualifications
The “call to action”

Trouble is, these are natural things to do in a blog post. A good result you recently obtained for a client is a classic blog post topic. Talking about your experience and qualifications is also natural. And many marketing experts say your content should conclude with a “call to action,” e.g. “if you’re facing a difficult divorce, call me now at the number below.”

The first two things that can make your blog post an advertisement are matters of degree. If you write about a result obtained for a client, do it in a way that is educational, without expressly using it to promote yourself. Similarly, you can convey information about your experience and qualifications in a subtle way. In both cases, the key concept is “show, don’t tell.” Show the readers that you understand a particular area of law.

The call to action is different. In my opinion, any post that includes a call to action is crossing the border into Advertising-Land. So you’ve got two choices. Either don’t include the call to action, or include it and just deal with the hassle of filing your blog post with the State Bar.

There’s one more thing that is likely to make your blog post an advertisement: comparing yourself to other lawyers. That brings me to the next tip.

Ethics Tip #6: Don’t compare yourself to other lawyers

This is another fairly simple one. Rule 7.02(a)(4) of the Texas Disciplinary Rules provides that a lawyer may not compare the lawyer’s services with other lawyers’ services, “unless the comparison can be substantiated by reference to verifiable, objective data.”

It’s a rare comparison that can be backed up with verifiable, objective data. So, if you can document that “I’ve tried more mesothelioma cases to verdict in Jefferson County than any other practicing lawyer,” then have at it. If you know for a fact that “I’m one of only nine Texas lawyers board certified in both Real Estate Law and Civil Trial Law,” then I suppose you can say that.

But just about any opinion comparing yourself to another lawyer is going to be off limits. By definition, if it’s an opinion it probably cannot be proven with “verifiable, objective data.”

Comment 5 to Rule 7.02 gives some examples of unsubstantiated opinions: “we are the toughest lawyers in town,” “we will get money for you when other lawyers can’t,” or “we are the best law firm in Texas if you want a large recovery.”

Never mind if you see lawyers making statements like this all the time. Don’t do it in your blog post. In addition to violating Rule 7.02, it also risks turning your blog post into an advertisement, as discussed above.

Plus, who wants to read a blog post where a lawyer just boasts and compares himself to other lawyers? That’s almost as bad as a blog post about blogging.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who focuses—he didn’t say “specialize”—on non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He expressly incorporates herein all disclaimers of all law blogs everywhere.

Turn Out the Lights, the Party’s Over: Texas Legislature Takes All the Fun Out of the TCPA

Back in my day, there was only one night when you could watch NFL action: Monday. Once Don Meredith started signing “Turn Out the Lights . . .” that was all the pro football you were going to get until the next Sunday. There was no “Thursday Night Football,” or even “Football Night in America.” And we liked it.

The other thing we did back in the good old days, meaning roughly 2017 until now, was file a TCPA motion to dismiss in a lawsuit that wasn’t really about “freedom of speech” or “freedom of association,” at least not in the First Amendment sense. Like a non-compete or trade secrets case.

That was fun, but business lobbies and the Texas legislature were not so amused. They mobilized to pass House Bill 2730 which, like the proverbial Federal Reserve raising interest rates, takes away the punch bowl just when the party gets going.

In broad terms, the amendment to the TCPA does three things:

First, it exempts certain types of claims from the TCPA, most notably non-compete and trade secrets claims. I may be biased, considering that is the focus of my litigation practice, but I see this as the most significant change.

Second, the amendment changes the TCPA’s broad definitions of the right of association and the right of free speech that led to such widespread use of the statute. It does not go so far as making those definitions synonymous with constitutional rights. But the previous definition of the key term “matter of public concern,” which was broad and vague, has been replaced with a definition that is significantly different—but still broad and vague.

Third, HB2730 changes the procedures for TCPA motions. For example, the statute now requires 21 days’ notice of a hearing on a TCPA motion, establishes a response deadline seven days before the hearing, and tweaks the rules for awarding attorney’s fees and sanctions. These changes will be important for practicing Texas litigators to note but probably won’t have any significant public policy impact.

The amendments take effect September 1, 2019 and are not retroactive. The previous statute will continue to apply to suits filed before September 1.

You can view the text of HB2730 here, and I have created a handy redlined version of the changes to the TCPA’s definitions that you can view here.

That’s all I’m going to say about the specific changes to the TCPA, because they are relatively self-explanatory, and I’m sure there will be no shortage of articles exploring the nooks and crannies of the textual changes.

I want to focus on some larger questions, like these:

Does the amended TCPA now do a better job of solving the problem it was intended to solve? (Sort of.)

Would it have been better for the legislature to scrap the whole statute? (Probably.)

Is the new exemption for non-compete and trade secrets claims a good idea? (It depends.)

What does this change mean for Texas non-compete and trade secrets law more generally? (Perhaps the time has come for “non-compete reform” in Texas.)

At the risk using a trendy corporate buzzword, let’s “drill down.”

The Empire SLAPPs Back

First, does the TCPA now solve the problem it was intended to solve?

To answer that question, we have to figure out what the problem was. People call the TCPA an “anti-SLAPP” statute. SLAPP stands for Strategic Lawsuit Against Public Participation. So, apparently there was a Strategic-Lawsuit-Against-Public-Participation crisis in Texas before the TCPA.

Funny thing is, in over 20 years of Texas litigation practice, I’ve never seen a SLAPP in my practice. I don’t think I know anybody who has handled one. I probably know more people who have spotted Sasquatch than people who have seen a true SLAPP.

Don’t get me wrong, I’m sure SLAPPs exist, just like Bigfoot. But here’s the odd thing. Think back to 2010, the year before the TCPA was passed. To jog your memory, the no. 1 song that year was by Ke$ha, who was still using that dollar symbol in her name. Remember how in 2010 Texans across the state were terrified to speak their minds about issues of public concern? Remember how business in Texas courthouses ground to a halt under an avalanche of SLAPP lawsuits?

Yeah, I don’t remember that either. I’m just not convinced that SLAPPs were ever really “a thing.”

But obviously someone was concerned about SLAPPs. Legislators don’t just pass new laws without getting something in return.

I would bet that big media companies had something to do with it. That’s just a guess, but an educated guess.

It would fit a familiar pattern. When doctors and their insurance companies got tired of nuisance medical malpractice suits, they pushed the legislature to pass the Texas Medical Liability Act. When builders got tired of nuisance homeowner lawsuits, they pushed for passage of the Texas Residential Construction Liability Act. You get the idea.

I’d bet that media companies got tired of nuisance lawsuits claiming defamation and wanted the legislature to do something about it. And because the ostensible purpose of the statute was to protect First Amendment rights, they got free speech groups on board.

Don’t get me wrong, I’m all about the First Amendment. In my younger, wilder days I was even labeled the “free speech extremist” in a college seminar. But I always thought the best legal defense to an attack on First Amendment rights was, you know, the First Amendment.

Call me old-fashioned, but I like the notion that the rules of the civil litigation system ought to be the same for all kinds of lawsuits. And if you take that idea seriously, it means sometimes saying no to special-interest exceptions, even when the special interest seems like a deserving one.

Otherwise, you get civil litigation rules that look like the US Tax Code: encrusted with the barnacles of special-interest exemptions.

Hey, I get it. That’s how politics works. Special-interest protections are just the way the game is played and the sausage gets made. But us practicing litigators don’t have to like it, or pretend like it’s a good thing.

And then there’s the more practical problem with special-interest legislation: the unintended consequences. The TCPA’s definitions were so broad that people started filing TCPA motions in cases the legislature probably never intended, like trade secrets cases. See A SLAPP in the Face to Texas Trade Secrets Lawsuits – Part 1.

This did not sit well with Chamber of Commerce types. Business groups were fine with the TCPA in theory, because most businesses have better things to do than filing SLAPPs against defenseless consumers. But businesses do like to file lawsuits when their employees leave to join competitors. So when defendants started filing TCPA motions in non-compete and trade secrets lawsuits, you knew the “pro-business” groups and politicians would not be happy campers.

I put “pro-business” in quotes to question whether favoring lawsuits against employees who join competing companies is really pro-business. Usually there are two businesses involved in such a dispute: the business the employee left, and the business the employee joined. What is the real “pro-business” position in such a case, a government decree prohibiting the employee from working for a competitor, or letting the employee go where the market demands?

It would be an interesting experiment to see what would happen to business in a state if non-competes for at-will employees were generally prohibited. Would companies in that state stop investing in innovation and human resources, fearful that their investments would be wasted?

Ideally, the experiment would involve a a state that has no political or ideological baggage, like California, the world’s fifth-largest economy.

Alas, the real world is not a laboratory, so there’s no way to know for sure. But here’s a hypothesis: if Texas really wanted to favor competition and innovation, it would prohibit non-competes except in narrow circumstances like the sale of a business.

Politically, that doesn’t seem to be in the cards. For whatever reason, business groups tend to take a short-sighted, conventional view of their interests, so they like enforcement of non-competes. Carving non-compete suits out of the TCPA is the latest proof of that.

Two Wrongs Don’t Make a Right

So now we have a special-interest statute, the TCPA, with a special-interest exception, non-compete and trade secrets claims. Which one was the mistake, the original statute, or the exception?

I think you can make a case that the legislature went wrong both times. The original TCPA was ill-conceived and had language going far beyond the purported basis for the statute. You could make a good case for just scrapping the whole thing.

But if we’re going to have an anti-SLAPP statute, I don’t see why it shouldn’t apply to departing employee lawsuits. Granted, that’s probably not the kind of lawsuit legislators had in mind when they voted for the TCPA. But a non-compete or trade secrets suit is just as likely to raise “SLAPP” concerns as any other kind of lawsuit.

Mind you, I’m not bashing plaintiffs in departing employee lawsuits—I’ve represented them and will continue to do so. But any lawyer who handles non-compete cases knows there are plenty of cases of non-compete abuse.

Here’s a common scenario: a high-performing salesperson gets fed up with her job and decides to make a fresh start working for a competitor. She’s careful not to poach any customers from her first employer, but the first employer is still angry. So even though her non-compete is too broad to hold up in court and her industry doesn’t have any real secrets, the first employer sues her for breach of non-compete and misappropriation of trade secrets. They have deeper pockets and want to “send a message.”

Texas already has procedures for dismissing groundless lawsuits, but that won’t do this employee much good, because the employer’s claims are not entirely groundless.

No, what the employee needs in this situation is some way to contest the merits of the employer’s claims early in the lawsuit, before getting buried under a mountain of legal fees. Maybe a procedure where the employee files a motion that requires the employer to offer evidence to support its claims before the employee has to endure the expensive discovery process?

Ok, never mind. That would be crazy. Kind of like pro football on Thursday nights.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He has the original Monday Night Football theme on his iTunes.

“Direct Access” to Computers in Departing Employee Litigation

Imagine a criminal case where the government sends the defendant’s lawyer a request to produce emails between the alleged conspirators, bank records showing payments to the defendant’s offshore account, or a recording of a key meeting. You wouldn’t expect to get much, would you? That’s why we have search warrants.

Civil litigation is different. In a civil case, the system largely relies on the parties themselves to search for and produce documents that the requesting party can then use to prove its case. Generally, you don’t get to search the opposing party’s office for relevant documents.

The same general rule applies to computer files: you don’t get to search the other side’s computers or other devices. There are exceptions, but the Texas Supreme Court has set the bar high for obtaining an order authorizing “direct access” to an opposing party’s electronic files.

In In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009), the court held that intrusive measures such as direct access to a computer or other electronic storage device require, at a minimum, that the benefits of the discovery outweigh the burden imposed. Permitting direct access “is particularly intrusive and should be generally discouraged,” the court said, “just as permitting open access to a party’s file cabinets for general perusal would be.” To obtain direct access, “the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data.”

More recently, the Texas Supreme Court applied Weekley in In re Shipman, 540 S.W.3d 562 (Tex. 2018). The court held that the responding party’s late production of responsive documents and testimony that some files had been deleted years earlier was insufficient to justify direct access. The responding party testified by affidavit that he had searched both electronic and paper files and produced all responsive documents, and the requesting party made no showing that the responding party was incapable of searching his computer.

Weekley Homes and Shipman were not “departing employee” cases—the type of case I handle most often—but direct access is an important issue in departing employee litigation. Let’s look at the transcript of a hypothetical hearing to see how these cases might apply in a typical departing employee case.

Hearing Transcript

Judge Lansing: Alright, next case up is Cause Number 19-24601, Paula Payne Windows v. Dawn Davis. Mr. Livingston, who are you here for?

Livingston: Good morning, judge. I’m here with Phil Hamilton for the plaintiff on a motion to compel.

Reynolds: Maria Reynolds here for the defendants, Your Honor.

Judge: Good morning, Ms. Reynolds. Was there a response to the motion?

Reynolds: Yes, we filed a response yesterday.

Judge: Well if I can get this computer on, maybe I can pull it up. Can you . . .

Reynolds: I have a binder with the motion and response if that would make it easier.

Judge: Sure, I’ll take your binder. This looks like a lot of material. Have y’all talked about this already?

Reynolds: Not really. All I got was an email from Mr. Hamilton demanding we turn over Ms. Davis’s laptop. That’s part of the problem, we’ve been trying . . .

Hamilton: Your Honor, that’s not exactly right. We talked about these issues at Ms. Davis’s deposition. That’s when she said . . .

Judge: Ok, well, I’ll hear your arguments on the motion. But first back up a little and remind me what this case is about. Mr. Hamilton?

Hamilton: Yes, of course. This is a case about theft of trade secrets. Dawn Davis worked for my client, Paula Payne Windows, for five years. She was very well paid. She rose up their top sales position, and she had access to all of their confidential information and trade secrets. Then about six months ago she suddenly left and went to work for a competitor, and that’s the other Defendant, Real Cheap Windows.

Judge: Ok, I remember this case now. But what kind of trade secrets does a windows company have?

Hamilton: There are two things we’re most concerned with, Your Honor. First, Paula Payne has a Master Customer List spreadsheet that has detailed information about every one of their customers. Second, for each customer there is a Sales History spreadsheet that has every sale including price, quantity, date, margins—everything a competitor would need to try to undercut my client.

Judge: I see. So you want me to compel Ms. Davis to produce those documents?

Hamilton: Actually, you already did that. If you take a look at tab C, that’s your order requiring Defendants to produce “all documents Davis received from Paula Payne during her Employment Period, including all customer lists and sales records.” We’re asking you to order her to produce her laptop so our forensic expert can see if our Master Customer List and Sales History spreadsheets were on it.

Judge: Ok, hold that thought. I want to hear from Ms. Reynolds.

Reynolds: Thank you, judge. I’ve been biting my tongue. This is an outrageous demand for direct access to my client’s computer. It is no different than a request to rifle through her file cabinets.

Judge: Well hold on, let’s take this one step at a time. Did your client comply with my previous order?

Reynolds: Absolutely. Ms. Davis searched her home office and produced a banker’s box full of documents. But she didn’t find any customer list or sales history documents. Now they’re asking for native Excel files, but they never specifically requested those. If I could approach, here is a copy of Rule 196.4:

Judge: What the hell is “magnetic” data?

Reynolds: Honestly, judge, I think that was a little before my time, but the issue here is electronic data. Paula Payne wants to search my client’s computer for electronic files, like Excel spreadsheets, but they never specifically asked for electronic files.

Hamilton: Actually, we did. This is from our First Request for Production:

Judge: That’s pretty general. Wouldn’t it be better practice to include the electronic files you want in the specific request for production? You could have said “including native Excel spreadsheets and other electronic files” in your request, right?

Hamilton: We could have, Your Honor, but the two leading cases on this, Weekley Homes and Shipman, both say it’s sufficient if we clarify in our motion to compel that we’re asking for electronic files. Here is an excerpt from Shipman, citing to Weekley:

Hamilton: The situation here is the same. Our definition of “documents” included electronic files, and our motion makes it abundantly clear what we’re asking for.

Judge: Ok, I think you’ve sufficiently asked for computer files, so let’s talk about direct access. What’s your basis for that?

Hamilton: We are allowed to obtain direct access to an electronic device if we “show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data.” That’s straight out of Shipman, quoting from Weekley. And that’s exactly what we have here. After Ms. Reynolds produced the box of hard copy documents, we sent her a letter pointing out that her production did not include any electronic files, and we specifically asked if Ms. Davis had searched her laptop. She responded in an email and said “my client has conducted a reasonably diligent search and has produced all responsive non-privileged documents.”

Judge: So she doesn’t have the documents. What’s the problem?

Hamilton: Later we took Dawn Davis’s deposition, and here’s what she said:

Hamilton: It’s obvious from her evasive answers that she did not conduct a diligent search of her laptop for the documents we requested, even after we specifically inquired about electronic files. That’s a default in her obligation to search her records and produce the requested records.

Judge: Alright, let me hear from Ms. Reynolds on this.

Reynolds: Your Honor, there is no default. This case is just like Weekley and Shipman, where the Texas Supreme Court ruled against direct access. In Weekley the court said you cannot rely on “mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties.” That is all we have here, just mere skepticism and speculation. There is no proof that Ms. Davis failed to search her laptop.

Judge: Mr. Hamilton, how is this case any different from those cases?

Hamilton: It’s totally different. Weekley was about whether deleted emails were specifically requested; that’s not our issue. Shipman was a case about late production. Here is an excerpt from Shipman with its key facts:

Hamilton: So there are two key differences. First, Shipman searched his computer and produced documents he found. Second, Shipman signed an affidavit specifically stating that he searched his computer files and produced all responsive documents. We don’t have either one here.

Judge: Ms. Reynolds, do you have an affidavit from your client saying she searched her computer?

Reynolds: No, Your Honor. But that’s not my burden. If you look closely at Shipman, the court made it clear that the requesting party has the burden to prove that the responding party has defaulted on its discovery obligations. “Mere skepticism” doesn’t meet their burden:

Reynolds: It’s the same thing here. Paula Payne hasn’t offered any evidence that my client is incapable of searching her computer or that she hasn’t conducted a diligent search. You have to say no to this.

Judge: What about her deposition testimony? Isn’t that evidence she didn’t do a diligent search.

Reynolds: She said she wasn’t sure if she transferred the customer list or sales histories to her laptop. That’s just like Shipman. The court said that Shipman’s “equivocation about the existence of discrete documents at his deposition” did not “transform general skepticism into discovery default.” Shipman was asked about “discrete, individual documents” from more than five years before the deposition and stated he was “unsure if they existed.” My client’s testimony was similar.

Judge: I understand, but did she search her computer? The defendant in Shipman signed an affidavit that specifically said he searched both electronic and hard copy records.

Reynolds: I don’t know all the details of her search. She has stated that she conducted a diligent search and produced all the responsive documents she found. If Paula Payne wants to ask her about all the little details, they can do that in a deposition.

Hamilton: Your Honor, we tried! We asked . . .

Judge: You can sit down, Mr. Hamilton. I’ve heard enough. I’m going to grant the motion to compel and order Ms. Davis to turn over her laptop to Paula Payne’s expert. Counsel are to confer on the details of a forensic protocol and put it in a proposed order. If y’all can’t work that out, come back and see me.

Reynolds: Your Honor, I really think it would be error to do this. The Texas Supreme Court has been clear.

Judge: Well that’s my ruling. And if y’all have to take it up to the Court of Appeals on mandamus, I won’t be offended. Good to see all of you. Even you, Mr. Livingston [laughter in courtroom]. So did you catch any bass last weekend?

Livingston: I’m afraid not. Nothing biting last weekend except the mosquitoes.

Judge: Well that’s too bad. Anyway, give Connie my best.

Livingston: Thank you, judge, I’ll do that.

Judge: Alright, everyone can be excused.

What Did We Learn Today?

So what do you think? Did Judge Lansing correctly apply Weekley and Shipman? Was there sufficient evidence that Davis defaulted on her discovery obligations? What should Dawn Davis’s lawyer have done differently? Could Paula Payne’s lawyers draft a better request for production? Did they handle the deposition well?

Give me your thoughts before Wednesday, when I’m presenting Dude, Where’s my USB Drive? Forensic Issues in Departing Employee Litigation for Pathway Forensics. It should be almost as much fun as a motion to compel hearing.

____________________________________

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

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Hearing Transcript

What Did We Learn Today?