PJC Business 2024

M ISAPPROPRIATION OF T RADE S ECRETS

PJC 111.2

1. [ Sample trade secret instruction. ] Answer: _______________ 2. [ Sample trade secret instruction. ] Answer: _______________

COMMENT When to use. PJC 111.2 submits the issue of liability for misappropriation of one or more trade secrets under the Texas Uniform Trade Secrets Act (the “Act”), effective September 1, 2013. See Tex. Civ. Prac. & Rem. Code § 134A.002. Broad-form submission. PJC 111.2 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). For further discussion, see PJC 116.2 regarding broad-form issues and the Casteel doctrine. Failure to make a specific Casteel objection may waive complaints about a single broad-form question. Title Source, Inc. v. HouseCanary, Inc. , 612 S.W.3d 517, 530 (Tex. App.—San Antonio 2020, pet. denied). TUTSA language pertaining to potentially viable theories (e.g., bribery and espionage) should not be submitted and should be omitted from the statu tory definition if unsupported by the evidence in the case. Title Source, Inc. , 612 S.W.3d at 531. Misappropriation. Section 134A.002(3) of the Act provides for six alternative improper methods of acquisition, use, or disclosure of trade secrets. The above instruc tion lists these six alternative improper methods of acquisition, use, or disclosure in brackets, but only the method(s) supported by the pleadings and evidence should be submitted. The Act specifies the extent to which it displaces other Texas law regarding reme dies for misappropriation of trade secrets. Tex. Civ. Prac. & Rem. Code § 134A.007. When the gravamen of a common law claim duplicates a TUTSA claim, the common law claim is preempted. This occurs if the factual basis of the com mon law claim, as pleaded, would not exist “without the use of alleged trade secrets.” However, because TUTSA’s preemption provision applies only to conflicting common law remedies, a common law claim is not preempted by TUTSA if it addresses harm separate from the trade secret misappropriation. Title Source, Inc. , 612 S.W.3d at 533 (internal citations omitted).

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