It’s Alive, It’s ALIVE! How to Kill a TCPA Motion in a Trade Secrets Lawsuit

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It’s Franken-steen First let’s get something out of the way. The Texas Citizens Participation Act (TCPA) is a Frankenstein’s monster that the legislature created and now needs to reign in (not that they listen to me). As I explained in a three-part series back in the summer of 2017, the TCPA grants defendants in certain cases the unusual right to require the plaintiff to prove its case before taking any discovery. In litigator jargon, it effectively lets the defendant file a “no-evidence” motion for summary judgment without first requiring an adequate time for discovery. The statute was intended to curtail […]

Confidentiality Duties of Texas Employees

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What if I told you that to understand an employee’s confidentiality duties, you need to understand there are three kinds of confidential information covered by at least four different areas of law? You see, employers have three kinds of confidential information: Trade secrets Confidential information that is not a trade secret “Confidential” information that is not actually confidential A trade secret is confidential information that has “independent economic value” and is “not readily ascertainable” by competitors. Secret technology, secret business plans, the literal secret sauce—these are obvious trade secrets. Less obvious things like customer lists and company prices can be […]

Witness Preparation in Trade Secrets Litigation

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On February 5, 2018, the day after the real Super Bowl, the Super Bowl of trade secrets trials started in federal court in San Francisco. You might have heard of some of the parties. The defendant was Uber. You may not have heard of the plaintiff, Waymo, but you probably know Waymo’s owner, a little company called Google. The issue in a nutshell: did Google engineer Anthony Levandowski steal Google’s confidential self-driving car technology—they call it “LiDAR”—and take it to Uber? This is the type of “departing employee” case I like to handle (on a slightly smaller scale), so it […]

Texas Supreme Court Raises the Bar for Trade Secrets Damages–Again

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Horizon v. Acadia finds expert’s assumptions too speculative to support lost profits verdict Mamas, don’t let your babies grow up to be damages experts in Texas. That’s the refrain CPAs may feel like singing after the Texas Supreme Court recently raised the bar for proving lost profits damages in trade secrets lawsuits—again. It started in 2016 with Southwest Energy v. Berry-Helfand, where the damages expert calculated lost profits for misappropriation of oilfield trade secrets by assuming a flat reasonable royalty rate of 3%, which was consistent with industry standards. As I reported here, the Texas Supreme Court said this opinion […]