A key employee left on Friday. By Monday three customers have called to say they were contacted, and the download logs show activity nobody can explain.
These cases are decided in the first two weeks, usually before a judge has read a word of the pleadings. What matters is what you can prove you protected, and what you can prove they took.
What the other side has to prove
That the information is actually a trade secret. Not everything a company would rather keep private qualifies. The information generally must derive independent economic value from not being generally known or readily ascertainable, and — this is the element that decides most cases — the owner must have taken reasonable measures under the circumstances to keep it secret. A claimant who circulated the material without restriction, never required confidentiality agreements, left it on an unsecured share, or gave it to customers without limitation has a serious problem with that element regardless of how valuable the information is.
That it was misappropriated. Acquisition by improper means, or disclosure or use by someone who knew or had reason to know it was acquired improperly or disclosed in breach of a duty to keep it confidential. Memory is where this gets genuinely contested: an employee is generally entitled to use the general skill, knowledge and experience acquired on the job, and the line between that and the employer’s protectable information is not crisp. Cases are tried on which side of it particular material falls.
That there is a loss, or a threat of one. Remedies in misappropriation cases can include actual loss, the defendant’s unjust enrichment, or in appropriate cases a reasonable royalty, and injunctive relief may be available to stop use or disclosure. Where a claimant seeks emergency relief, it will ordinarily have to show a probable right to recover and an imminent, irreparable injury for which damages would not be adequate — and the second of those is where many applications fail, because a harm that can be measured in money is frequently not irreparable.
Non-competes are a separate question with separate rules. In Texas a covenant not to compete is enforceable only if it is ancillary to or part of an otherwise enforceable agreement and is reasonable in time, geographic area and scope of activity, with those limits no broader than necessary to protect the employer’s legitimate interest. A covenant that fails those tests is not automatically void: by statute a Texas court must reform an overbroad covenant to what is reasonable and enforce it as reformed, which changes the strategy on both sides. An employee assuming the covenant is unenforceable because it is too broad is frequently wrong. But reformation has a price for the employer: where an overbroad covenant had to be reformed, the employer is generally limited to going-forward enforcement and cannot recover damages for conduct before the reformation — which is a reason not to over-draft and then sue for damages.
What consideration supports the covenant matters. The requirement that the covenant be ancillary to an otherwise enforceable agreement has generated a great deal of litigation about what the employer actually gave. A promise to provide confidential information, actually performed, is the common route. A covenant signed for nothing, or supported only by continued employment in circumstances where that is not enough, is vulnerable — and that vulnerability is identified by reading the agreement and the evidence of what was delivered, not by reading the covenant alone.
Non-solicitation and non-disclosure are not the same as non-competition. Agreements not to solicit customers or employees, and agreements not to disclose confidential information, are analyzed differently, and an agreement that restrains competition in substance may be treated as a covenant not to compete whatever it is called. The label on the paragraph does not control.
There are two bodies of trade-secret law, state and federal, and they overlap. A claimant can frequently proceed under either or both, and the choice affects the forum, the available relief and the timetable. It is a decision made deliberately at the outset, not discovered later.
Where these cases are won
In the first two weeks. Departure cases move at emergency speed or they do not move at all. Forensic preservation of the departing employee’s laptop, phone and cloud accounts; the badge, VPN and download logs; the personal email traffic in the final month; and the customer contacts that followed. Evidence that is not preserved immediately is frequently gone, and a delay in seeking relief is itself an argument the other side will make — a claimant who waited months to complain of an emergency has undermined the emergency.
On the order the court will actually sign. A temporary restraining order that recites conclusions, fails to describe in reasonable detail the acts restrained, or has no bond and no early hearing date is an order that dissolves. The application, the proposed order and the supporting affidavits are drafted together, in advance, by someone who has read what courts in that county actually grant. See Injunctions & Temporary Restraining Orders.
On identifying the trade secret with particularity — early. A claimant who cannot say what was taken, in specific terms, will struggle to obtain relief and will face a protective-order fight about disclosing it. A defendant confronted with a vague description should press for specificity immediately, because the claim frequently narrows to something much smaller than the complaint suggested.
On the forensics, and on what they do not show. Download logs establish copying; they do not establish use. The gap between the two is where defensible cases live. We work with forensic examiners on both sides of that gap — to close it where we represent the company, and to demonstrate it where we represent the employee or the new employer.
On the client’s own paper. Cases are frequently won or lost on documents created long before the dispute: the confidentiality agreement and whether it was signed, the onboarding acknowledgement, the access-control policy and whether it was followed, the exit interview and what was returned. The reasonable-measures element is proved from that record. A company with the record wins a case a company without it cannot bring.
On proportion. Not every departure is a trade-secret case, and treating it as one is expensive. We will say so when the honest assessment is that the employee took a customer relationship they were entitled to keep, or that the covenant will not survive scrutiny as written. Suing on a covenant that cannot hold up is a way to fund the other side’s argument.
On the appeal, which comes fast in this area. Orders granting or denying temporary injunctive relief are frequently subject to accelerated appellate review, and the record that supports or defeats them is made in a hearing that may last two hours. We litigate those hearings with the appellate record in mind, because we are the ones who will argue the appeal.
What we do
We handle trade-secret misappropriation, breach of confidentiality and non-disclosure agreements, enforcement and defense of non-competition and non-solicitation covenants, unfair competition, breach of the duties owed by departing officers and employees, and the emergency injunction practice that surrounds all of it — for companies enforcing their agreements, for companies defending claims brought by a competitor, and for individuals who have been sued for leaving.
We appear in Texas state and federal courts and, where the employment or the competitor is elsewhere, alongside local counsel in other jurisdictions.
We have obtained an injunction barring a competitor formed by former officers from contacting customers.
The civil practice is led by Shawn A. Johnson, a civil trial and appellate lawyer, licensed CPA, and former law clerk at the Supreme Court of Texas. We try and argue our own cases.
Representative results
Injunction barring a competitor formed by former officers from contacting customers
Power Research, Inc. v. Newport Fuel Solutions, Inc., No. CV18-02401, Second Judicial District Court, Washoe County, Nevada (Mar. 11, 2019).
Fiduciary-duty and trade-secret claims resolved; dismissed with prejudice
Claims against a former office manager and her start-up company in a suit seeking injunctive relief.
Maintenance of Way Equipment Services, LLC v. Garcia, No. 24-DCV-321736, 434th District Court, Fort Bend County, Texas (Nov. 26, 2024).
Questions we are asked
An employee left and took our customer list. Can we stop them?
Possibly, and the answer depends on facts you can establish quickly. Whether the list is a protectable trade secret turns on how it was compiled, what it contains beyond names available publicly, and what you did to keep it confidential. Whether you can stop the conduct turns on what agreement they signed and what the evidence shows they have actually done. Preserve the devices and the logs first.
Our non-compete is probably too broad. Is it worthless?
No. By statute a Texas court must reform an overbroad covenant to reasonable limits and enforce it as reformed, so an agreement that is too wide as drafted may still restrain something. Reformation cuts both ways, though: where an overbroad covenant had to be reformed, the employer is generally limited to going-forward enforcement and cannot recover damages for conduct before the reformation. The practical questions are what a court would narrow it to, and — for the employer — whether an injunction alone is worth the fight.
I signed a non-compete and I want to leave. What are my exposures?
Read the agreement before you resign, not after. What matters is what consideration supported the covenant, whether the restraint is reasonable in time, area and scope, what confidential information you actually received, and what your new role would require you to do. Many covenants restrain far less than the person who signed them believes, and a departure planned with that in mind avoids most of the risk.
Can I take my own contacts, my own experience, and the relationships I built?
Your general skill, knowledge and experience are ordinarily yours. The employer’s confidential and trade-secret information is not, and contractual non-solicitation obligations may restrict whom you approach regardless. The line runs through specific categories of information and specific promises, and it is worth mapping before you move rather than after a lawsuit.
How quickly do we have to act?
Days, not months. Delay is used against a claimant on two fronts: it undercuts the claim that the harm is irreparable and imminent, and it costs evidence that exists only briefly in logs and devices. If you are considering emergency relief, the decision should be made this week.
What does an emergency application actually involve?
A verified application, supporting affidavits from people with direct knowledge, a proposed order drafted in terms a court can sign and a party can obey, a bond, and a hearing that may be set within days. It is compressed, document-heavy work, and it is largely determined by preparation done before the application is filed.
We are the new employer and we have been sued. What is our exposure?
That depends on what you knew, what you asked, and what you did when you found out. Employers who documented their onboarding restrictions, kept the new hire away from the former employer’s material, and responded promptly to a demand are in a materially better position than those who did not — and that record is made now, not at trial.
If we lose the injunction hearing, is that the end?
No. Orders granting or denying temporary injunctive relief are frequently reviewable on an accelerated basis, and we prepare that record from the first hearing. We also take these appeals in cases handled at the trial level by other counsel.
Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.