Like any other type of litigation, trade secret cases rise or fall on the strength of the evidence that can be put before the factfinder. Yet before a lawyer can focus on what evidence they have to make or defend their case, they must first collect that evidence. With information technology being incorporated into every business at a lightning-fast pace, evidence has accordingly become increasingly complicated to source. The final part of this series outlines best practices for the identification, collection, and preservation of evidence for use in a trade secrets case.

As discussed in part one of this series, trade secret litigation presents a minefield of evidentiary challenges. But while the act of misappropriation is often simple enough to demonstrate, calculating the precise value of damages can be extremely difficult. This second article outlines the evidence needed to articulate a legally cognizable damages model.

Trade secret litigation is set to increase in the coming decades, accelerated by the enactment of the federal Defend Trade Secrets Act (“DTSA”) in 2016. Most cases do not contain direct evidence of stolen secrets, however. Instead, stray pieces of indirect evidence must come together to tell a larger story of theft. Consequently, lawyers handling this type of litigation must take the time to understand its intricacies and machinations, particularly the specific statutory requirements imposed by the uniform trade secrets acts (such as the Texas Uniform Trade Secrets Act, or “TUTSA”) and the evidence that will and will not satisfy these requirements.

A new three-part series by Hicks Johnson partner Varant Yegparian examines different concerns regarding evidence in trade secret cases, aiming to shed light on the correlative legal requirements to which this evidence is applied. This first article articulates the legal framework envisioned by TUTSA, addressing the requirements to prove the existence of a trade secret and to establish liability.

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) took effect, replacing the 1994 North American Free Trade Agreement (NAFTA). The USMCA provides a three-year sunset period for investors to submit arbitration claims related to foreign investments established or acquired under NAFTA. Now that the practical deadline of April 1, 2023 has passed, investors can no longer access NAFTA’s dispute resolution mechanism and must file investment claims under the USMCA regime. A new article by Hicks Johnson managing partner Andy Hicks and associate Fatima Aslam outlines key changes that investors should look out for.

According to a recent decision handed down by the Delaware courts, corporate officers must now contend with a new avenue of liability: the duty of oversight. Previously, only a company’s board could face personal liability from derivative suits alleging failure to adequately oversee and mitigate the risks relevant to their duties. While courts have formerly held that corporate officers owe the same fiduciary duties of loyalty and care as directors, this decision clarifies that precedent by explicitly tethering officers to a duty of oversight. Senior counsel Brandon Winchester and associate Adam Greiner outline the implications of the decision as well as next steps for organizations seeking to mitigate risk.

The non-compete—a clause that binds approximately one-fifth of all American workers—may soon be a thing of the past. New guidance from the FTC threatens to abolish the use of non-compete clauses in all but the most limited of circumstances, upending a long-established protection used by countless corporations nationwide. Partner Varant Yegparian and associate Adam Greiner outline the implications of the FTC’s proposed rule and, should it be implemented, offer a path forward for in-house legal departments seeking to minimize damage to their businesses.

In February 2022, the U.S. Court of Appeals for the Tenth Circuit laid down a landmark ruling in a lawsuit brought by a group of Colorado municipalities accusing several energy companies of climate change-related harm. Since then, multiple courts have provided further guidance as to where energy companies should anticipate litigating climate change lawsuits. Hicks Johnson senior counsel Brandon Winchester offers an overview of this shifting landscape.

Frequently referred to as “forever chemicals,” per- and poly-fluoroalkyl substances, also known as PFAS, have been subjected to rigorous scrutiny by the EPA, other governments and agencies, and litigants. With some commentators already referring to PFAS as “the mother of toxic torts” and the “next asbestos,” Hicks Johnson partner Adam Dinnell and associate Bryan Zubay consider what the future of PFAS litigation might look like—specifically, how parties might attempt to prove or defeat causation.

Associate Daniel J. Scime came to Hicks Johnson in May 2022 from Skadden, Arps, Slate, Meagher & Flom’s Chicago office. Four months into his tenure, he sat down with us to discuss his goals, expectations, and how he’s settling in.

Under Delaware law, the implied covenant of good faith and fair dealing – intended to ensure that parties deal honestly and fairly with each other when addressing gaps in an agreement – attaches to every contract by operation of law. Hicks Johnson managing partner Andy Hicks and associate James Keefe explain when the doctrine can and can’t be used, drawing on several recent cases for context.

The Delaware Limited Liability Company Act allows for the fiduciary duties of a member to be expanded, restricted, or eliminated by provisions in the operating agreement of an LLC. If drafters intend to eliminate fiduciary duties, however, this intent must be plain and unambiguous. Hicks Johnson managing partner Andy Hicks and associate James Keefe discuss a recent ruling in Delaware’s Chancery Court that illuminates the necessity of this “plain and unambiguous” requirement.

As discussed in part one of this series, a JOA’s exculpatory clause relieves the designated “operator” from liability for certain conduct or activities, but the scope of this relief can vary significantly depending on the words used in the clause. Recently, the Texas Fourteenth Court of Appeals issued an opinion further clarifying the reach of the exculpatory clause in a model JOA. Hicks Johnson managing partner Andy Hicks and partner Marc Tabolsky outline the implications of the court’s holding for parties to a JOA under Texas law.

The Joint Operating Agreement (JOA) is often the key contract between parties that have a shared interest in oil and gas exploration, development, and production in a designated area. One of the most contested provisions of any JOA is the exculpatory clause, which can dramatically alter the degree to which an operator can or cannot be held liable under certain facts. Hicks Johnson managing partner Andy Hicks and partner Persis Dean break down the fundamentals.

In the wake of a recent landmark decision by a federal appellate court in regard to where climate change lawsuits should be litigated, the U.S. Court of Appeals for the Fourth Circuit has provided further guidance as to how federal courts may address attempts to have these cases litigated at the federal level. Hicks Johnson senior counsel Brandon Winchester discusses.

Case law involving limited liability companies (LLCs) is rapidly evolving. Some states, most notably Delaware, permit LLCs to limit or eliminate liability for breaches of fiduciary duty by an LLC’s members or managers. Other states cabin that ability to varying degrees. Disputes regarding breaches of fiduciary duty can often hinge on the scope of any relevant exculpation provisions in the LLC agreement, and the body of law governing the LLC agreement can materially alter outcomes. Individuals seeking to do business in Texas are likely to encounter LLCs that were organized in Delaware (popular for, among other things, this very reason) and in Texas. In this article, managing partner Andy Hicks and associates Bryan Zubay and James Keefe compare key differences between Delaware and Texas law on LLC exculpation provisions.

Can litigants request a jury trial in federal bankruptcy court? According to managing partner Andy Hicks and associates Bryan Zubay and James Keefe, it’s a viable option worth considering.

On Tuesday, February 8, the U.S. Court of Appeals for the Tenth Circuit laid down a landmark ruling in a lawsuit brought by a group of Colorado municipalities accusing several energy companies of climate change-related harm. Hicks Johnson senior counsel Brandon Winchester outlines the decision.

The past year saw several attempts to apply new applications of the public nuisance doctrine to the opioid crisis, thanks to litigators seeking to expand the definition to areas outside traditional applications. Senior counsel Brandon Winchester reviews key developments in Oklahoma, Ohio, and California.

Partner Persis Dean joined Hicks Johnson in 2015 after six years as in-house counsel for Exxon Mobil Corporation and three at Vinson & Elkins. Now, she is poised to help lead the firm through its most rapid growth period yet. Dean discusses what it’s like to be a working parent in corporate law, her approach to mentoring, and the benefits of boutique firm life.

As law firm hiring season shifts into high gear, top students are faced with a plethora of choices.  In addition to the traditional on-campus interviews (or their Zoom equivalents) by Big Law recruiting departments, a growing number of boutique litigation firms are offering competitive packages—including top-tier salaries and benefits—to prospective summers and first-years. Hiring partner Adam Dinnell of Houston-based Hicks Johnson talks candidly about the pros and cons of boutique firm life.

Public nuisance claims have long been understood to rest on “an unreasonable interference with a right common to the general public.” Typically, litigation sought recovery for damages in connection with (among other examples) interference in land use and public spaces, polluting public waterways, or making too much noise.

On May 21, the U.S House Committee on Financial Services released draft legislation excluding all SPACs from the safe harbor for forward-looking statements provided in the Private Securities Litigation Reform Act of 1995 (PSLRA). Hicks Johnson partner Varant Yegparian and Jon Janes, a vice president at insurance brokerage firm Woodruff Sawyer, teamed up to assess the increased potential liability that could befall SPACs, their targets, and their respective directors and officers should the legislation be passed.

While the recent suit brought by 57 Texas High Plains wine grape growers against Bayer-Monsanto and BASF is receiving extensive press coverage, it is not clear whether the Texas wine industry can survive the onslaught. Some vineyards have experienced a 90 percent reduction in their grape harvest, which brings in more than $2,500 a ton.

Cyberattacks on the nation’s critical infrastructure are becoming more frequent, more severe, and more dangerous. This article outlines crucial steps businesses can take to insulate themselves from liability before a cyberattack occurs.