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Can a plaintiff “plead around” TUTSA preemption by alleging misappropriation of confidential information that is not a trade secret? For regular people, or even lawyers if they don’t handle trade secrets lawsuits, that may sound like some real inside baseball, but it’s an important issue that often comes up in my Texas litigation practice. I’ll explain. Let’s take the typical case where a company sues a former employee for taking super-secret documents to a competitor. The company will allege misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (TUTSA). But the company will rarely stop there. It will […]

When I started this blog ten years ago, there was no ChatGPT, no Claude, no Gemini. If you wanted to know something like the legal definition of a “trade secret,” you had to use a primitive tool called Google to find the answer. Those dark days are over. AI has now materially improved everyone’s quality of life. Don’t believe me? Consider a recent Annenberg survey finding that at least 17% of Americans believe AI will have a positive impact on the country over the next decade. We’re at the dawn of a golden age. Especially when it comes to legal […]

“Sting! Der Stingelhopper. Makin’ copies! The McStingsterrrr.” Those of you above a certain age will remember this classic Saturday Night Live bit. It was silly and pointless, but funny and memorable. More about copy machines later. The Price Undercutting Theory As we start the year 2026, I’m wondering if the tide is turning against the “price undercutting” theory in trade secrets litigation. It’s a common theory that companies assert when an employee leaves and joins a competitor. The idea is that the former employee knows the company’s super-secret prices and shares them with his new employer, allowing the new employer […]

Should you sign a noncompete proposed by your employer? The short answer is no. There are some good reasons not to sign an employee noncompete. I’ll cover those in another post. For now, I’ll just say that we should normalize saying “no” to employee noncompetes. There are exceptions, of course. Exception no. 1: It was part of the deal The first exception is when a noncompete was part of your deal. If the terms of the job offer included a noncompete, then it’s fair for the employer to include a noncompete in your employment agreement (sort of). Even then, it […]

You know that feeling when you call the customer service line and an automated voice, says “press 1 if you’re calling about a new application, press 2 if you’re calling in response to a letter you received, press 3 if . . .” “I’m not calling about any of those things,” you shout, to no one in particular. “I just want to talk to a real person!” You just want to explain your specific situation. That’s what it feels like when you’re trying to explain to a judge why the Pattern Jury Charge (PJC) question doesn’t work for your particular […]

Like my man Cole Porter said, in olden days a glimpse of stocking, was looked on as something shocking, now Heaven knows . . . anything goes. Especially when a company sues a former employee who took documents containing the company’s alleged “trade secrets.” In a case like that, can the company get a temporary restraining order (TRO) requiring the employee not to use the documents? Can the judge also make the employee immediately “return” the documents to the company? After handling cases like this for over a decade, I can tell you the practical answer is simple: in a […]

Quick, can you name the number one song of 2014? I’ll help you out. It was “Happy” by Pharrell Williams. But to be honest, I was not so happy in early 2014. I had just lost my job working for a Houston law firm. Fortunately, I had a good paying client who was being sued for violation of a non-compete. And the rest is history. At the time I’m writing this (the end of 2024), my Texas law practice has focused on the defense of lawsuits involving claims for violation of non-competes and/or alleged misappropriation of “trade secrets” for about […]

On April 23, 2024, the FTC voted 3-2 to approve its final rule banning non-competes for U.S. workers. Unless the federal courts block the rule (more about that later), it will go into effect on September 4, 2024. (Update: The federal courts did block the rule. Sort of. See Texas Federal Court Enters Limited Preliminary Injunction Staying FTC’s Noncompete Clause Ban from my friends at Morgan Lewis.) My law practice focuses on defending non-compete and trade secret claims, so as you might imagine, that was a busy week for me. You can imagine the text messages from clients. “Hey, did […]

The McLaughlin Group There was a sketch on Saturday Night Live where Dana Carvey played news talk show host John McLaughlin. The recurring gag was that McLaughlin would ask the guests a serious political question, each would give a thoughtful answer, and McLaughlin would shout “WRONG!” I think about that a lot when I’m doing deposition preparation with clients in trade secrets lawsuits. Let’s go over some common ways defendants in trade secrets lawsuits go wrong in their depositions. We’ll use our old hypothetical friend Dawn Davis as an example 1. Are the things defined as “confidential information” or “trade […]

Court Holds the Weekley Homes Standard Applies The Houston Court of Appeals (14th) has held that the plaintiff in a trade secrets lawsuit is not automatically entitled to a forensic examination of a defendant’s device that was allegedly used to take the defendant’s alleged trade secrets. In re 4X Industrial, LLC, 683 S.W.3d 916 (Tex. App.—Houston [14th Dist.] 2024) (orig. proceeding). Rather, to obtain an order for “direct access” to the defendant’s computer or electronic storage device, the plaintiff must satisfy the requirements established by the Texas Supreme Court in In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009). Those […]