Does the FTC Ban Apply to My Non-Compete?

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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 […]

Common Deposition Mistakes in Trade Secrets Litigation

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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 […]

Houston Court Reigns in Forensic Computer Exams in Trade Secrets Lawsuits

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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, __ S.W.3d __, No. 14-23-00183-CV, 2024 WL 333798 (Tex. App.—Houston [14th Dist.] Jan. 30, 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 […]

Should I Stop Giving Clients 100 Percent?

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I was watching a Ford truck commercial—you know, the kind that airs during Monday Night Football—and the theme was how good solid blue-collar Americans who own small welding businesses and wear plaid flannel shirts always give 100%. Cue Bob Seger, “Like a Rock.” Oh wait, that was Chevy. But you get the idea. Anyway, Ford has obviously gone soft. Anyone who follows sports or business figures on social media knows that giving 100% is for losers. Winners give 110% every day. I know this from watching Shark Tank and that Michael Jordan documentary. This idea is not limited to athletes and […]

Judges Must Police Ex Parte TROs Better

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This post may ruffle some feathers, but I’ll get right to the point: Texas judges are granting too many TROs in civil litigation, and they’re not doing enough to police the requirements for an ex parte TRO, i.e. a Temporary Restraining Order granted without anyone present for the responding party. Admittedly, I base this on anecdotal evidence from my own practice, but I don’t think my experience is unusual. And to clear away one potential objection right off the bat, let me stress that I am not talking about TROs addressing domestic violence. If there was ever an appropriate case […]

NLRB Abolishes Employee Non-Competes?

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I recently saw the summer blockbuster Spider-Man: Across the Spider-Verse, the sequel to Spider-Man: Into the Spider-Verse, so new characters are on my mind. Nothing against Paula Payne and Dawn Davis, but I thought it was time to introduce some new characters to the FMLU (the Five Minute Law Universe). So, meet Bobby Bluecollar. Bobby works for Vinny’s Valves, which started as a mom-and-pop operation but now has offices throughout Texas and the Gulf Coast, providing equipment to hundreds of customers in the oilfield exploration and production industry. Vinny himself doesn’t work much anymore. His daughter Vanessa now runs the […]

What Clients Need to Know About Mediation

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What do clients need to know about mediation? I’ve narrowed it down to five key practical points. Five Minute Law. Five key points. Get it? But before my five key things clients need to know, some basics. Mediation is not arbitration. A lot of non-lawyers get confused about mediation versus arbitration. I will now dispel that confusion and allow you to wow your friends by explaining the difference. Just remember this: Arbitration = binding, more formal Mediation = non-binding, less formal Think of going to arbitration as going to court, but with an arbitrator (or sometimes three arbitrators) instead of […]

Should You Pay a Lawyer for Non-Compete Advice?

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Ok, I know what you’re thinking. “Don’t you have a vested interest in the answer, Wolfe?” Yes, clients often pay me for advice about non-competes. It would only be a slight exaggeration to say I’ve paid for my daughter’s college by charging people for advice about non-competes. So it would be somewhat self-serving for me to say “yes, of course, you should always get advice about a non-compete from an experienced attorney.” But look, I’m going to give it to you straight. And you might be surprised by my answer. As you’ll see, I’m going to explain why sometimes you […]

Trial Lawyer Lessons From Serving on a Jury

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“Wait, you were on a jury? I thought lawyers always get struck from the jury.” That’s a common misconception. Truth is, lawyers can and do serve on juries. Sometimes. In Texas, where I have a civil litigation practice focused on non-compete and trade secret cases, there is no rule prohibiting lawyers from serving on a jury. Even judges can serve on juries. But won’t the lawyers who are trying the case use their peremptory strikes to keep other lawyers off the jury? Often they do. That probably explains why it’s rare for lawyers to get on juries. But why do […]

Amarillo By Morning: Tortious Interference with At-Will Employment

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One proposition that is not controversial in the law is that lower courts are bound to follow the decisions of higher courts. So, for example, an intermediate Court of Appeals in Texas must follow the precedents handed down by the Texas Supreme Court. A more controversial topic: footnotes. Yes, there’s a perennial, raging debate in the legal world about whether citations to case law should go in the body of a brief or in the footnotes. It gets pretty heated. Really. I tend to side with the citations-in-the-body camp, but a recent Texas case has me rethinking the value of […]