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Texas Torts and Remedies
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

3-49 Texas Torts and Remedies 49.syn




J. Hadley Edgar;James B. Sales

Chapter Summary


This chapter, Trade Secret Misappropriation, discusses misappropriation of trade secrets. The theoretical and historical bases of liability for this cause of action are considered, as well as how Texas stands apart from other jurisdictions.

This chapter begins with the definition of a trade secret, primarily that the trade secret must be 1) secret, and 2) used in the owner's trade or business, and 3) gives the owner a competitive advantage over those who do not know or use it. The chapter discusses the requirements of a trade secret including consideration of the secrecy requirement, the requirement that it be used in trade or business, and the competitive advantage requirement. The chapter addresses the subject matter of trade secrets, and the ownership rights to a trade secret resulting from an employment relationship.

The chapter sets forth the elements of a prima facie case of common law trade secret misappropriation, as defined by Texas courts including the necessary elements of the existence of a trade secret, an improper acquisition, and unauthorized use of a trade secret. It considers the basis for civil liability for misappropriation of a trade secret and discusses a breach of a confidential or fiduciary relationship, an express contract, an implied contract, unfair competition, conspiracy, third party derivative liability, and the Texas Theft Liability Act. It also covers other possible grounds for liability based on confidential information.

The chapter discusses remedies for misappropriation of a trade secret including injunctive relief and damages, and attorney's fees. It addresses possible defenses to this cause of action including statute of limitations, independent development, preemption, and equitable defenses such as unclean hands and laches. The chapter considers alternative statutory and criminal causes of action based on the wrongful use of confidential information. The chapter also discusses remedies and procedural considerations relevant to bringing a misappropriation action, such as protection of trade secrets during litigation.

Texas Torts and Remedies (Matthew Bender) provides complete and detailed treatment of the substantive Texas law of torts, as well as remedies for tortious injury. Updated twice a year, the set tracks recent developments in areas such as government liability, products liability, and workers' compensation. It provides comprehensive coverage of Texas tort law, including: principles of liability; professional liability; torts relating to real property; torts relating to transportation; products liability and commercial torts; intentional torts; claims against public entities; insurance claims; and remedies.


Trade secret,substantial element of secrecy,novelty,competitive advantage,improper acquisition,breach of confidentiality,express contract,implied contract,unfair competition,conspiracy,third party derivative liability,injunctive relief,idea submission,damages,reasonable royalty,exemplary or punitive damages,statutes of limitations,independent development,preemption,equitable defenses,unclean hands,laches.


See Chapter 10 for coverage of the Deceptive Trade Practices Act (DTPA). See Chapter 101 for discussion of trade secrets in the context of procedural issues and discovery.


See Products Liability Practice Guide (Matthew Bender) for step-by-step guidance through each phase of a products liability case, along with checklists, forms, sample pleadings and research guides.

See Dorsaneo, Texas Litigation Guide (Matthew Bender) for step-by-step coverage of civil procedure from filing the petition through appellate procedure, with substantive practice-area topics offering legal background discussion, checklists, forms, and research guides.

See Texas Courtroom Evidence (Matthew Bender) for comprehensive coverage of Texas Evidence Law, including the latest decisions addressing specific areas of interest such as expert witness testimony and judicial notice of another state's laws.

See Damages in Tort Actions (Matthew Bender) for in-depth legal and policy analyses of compensatory and punitive damages in personal injury, wrongful death, and property damage cases.

For forms of pleadings to be used in tortious misappropriation of trade secrets, see Texas Litigation Guide (Matthew Bender), Ch. 200, Unfair Competition.
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