Trade secrets historically have been a state civil matter; however, the passage of the Defend Trade Secrets Act of 2016 gave additional federal civil remedies in the misappropriation of trade secrets. In 2013, Texas became the 48th state to adopt a Uniform Trade Secrets Act variant, leaving New York and Massachusetts as the remaining holdouts.
Effective September 1, 2013, the Texas Uniform Trade Secret Act (TUTSA) replaced established common law on all trade secret appropriation claims. TUTSA defines trade secrets as information including a formula, pattern, compilation, program, device, method, technique, process, financial data or list of actual or potential customers, or suppliers that:
- Derive independent, actual or potential, economic value from being unknown, and not readily ascertainable by proper means, to other persons who can obtain economic value from its disclosure or use
- Are the subject of reasonable efforts under the circumstances to maintain their secrecy
Remedies under TUTSA include injunctive relief and damages, attorney fees and exemplary damages in cases of willful and malicious misappropriation. Available damages include the amount of the actual loss caused by the misappropriation in addition to the unjust enrichment not taken into account in computing the actual loss. Alternatively, damages may be measured by a reasonable royalty for the unauthorized disclosure or use of a trade secret.
In addition, TUTSA includes secrecy preservation of the alleged trade secret by reasonable means, i.e., there’s a presumption in favor of granting protective orders that may include provisions limiting access to confidential information, sealing of records and the issuance of gag orders.
BKD’s litigation support professionals are experienced in performing trade secret damage calculations and in providing expert witness testimony. If you have a civil matter involving a former employee or business partner, BKD is here to assist you.