The Fifth Circuit Triples an Overtime Payment Award; Says the Fluctuating Workweek Method Was Not Warranted in a FLSA Misclassification Case

Last Friday, the Fifth Circuit in Black v. SettlePou, PC ruled that the Northern District of Texas erred in applying the Fluctuating Workweek (FWW) method of calculating an overtime payment award where there was no evidence that the employee had agreed to the flexible work hours. The Court of Appeals remanded the case and ordered a recalculation of damages using 1 1/2 times the regular hourly rate of pay instead of 1/2 under the FWW, which would result in a tripling of the actual and liquidated damages.

Black was employed as a legal secretary and paralegal at SettlePou, P.C. from 2005–2010. She was first hired as a non-exempt legal secretary, then promoted to a paralegal, but remained a non-exempt employee, as defined by the Fair Labor Standards Act, 29 U.S.C. §§ 201–19 (FLSA), earning overtime at 1 1/2 regular rate of pay. In 2007, SettlePou informed Black that she was to begin supervising one of their legal secretaries, therefore, she would be reclassified as exempt, making her ineligible for overtime pay as an exempt employee. Immediately following her reclassification Black complained both verbally and in writing to her supervisor and to the human resources department stating that she thought she should be paid overtime for her extra hours worked.  After she was terminated in 2010, she filed a suit against SettlePou on behalf of herself and all other similarly situated paralegals for violations of the FLSA.

The jury found that SettlePou had willfully violated the FLSA by misclassifying Black as exempt and the she was owed 274 hours of overtime pay. Apparently, when Black was promoted to a supervisor position, she was told that she would be given supervisory authority, but was never actually given one.  Thus, she continued to perform the same duties, but was now ineligible for overtime.

The district judge calculated the amount of overtime premium due to Black by multiplying her 274 overtime hours by one-half of her hourly pay rate.  Black filed a motion to alter or amend the judgment, arguing that the district court should have used 1 1/2 times the regular hourly rate of pay instead of 1/2 in its calculation of damages, but the district court denied the motion.

In overruling the district court, the Fifth Circuit explained that “[t]he FWW method of calculating overtime premiums in a misclassification case is appropriate when the employer and the employee have agreed that the employee will be paid a fixed weekly wage to work fluctuating hours,” and that the existence of such agreement is a question of fact.  The record evidence in this case – both the parties’ initial understanding and their course of conduct – showed that there was no such agreement between Black and her employer because:

  • SettlePou’s Human Resources Director testified that she was unaware of any fluctuating workweek agreement with Black
  • Black testified that her understanding was that she would be compensated with a fixed weekly wage for working a regular schedule of 37 1/2 hours
  • the payroll records showed that Black was being compensated for full time employment, which was defined in the Employee Handbook as 37 1/2 hours per week
  • the Employee Handbook only stated that exempt employees would not be compensated for overtime, but did not explain that the full-time paralegals like Black were expected to work a fluctuating work week or overtime

The critical issue in this case, was “not only whether SettlePou paid Black a fixed salary for varying hours, but whether SettlePou and Black had agreed that a fixed salary would compensate her for all of the hours she worked each week.” The fact that Black complained to the Human Resources Director and her supervisor about having to work overtime without receiving overtime payment, showed that she did not agree to compensation based on the fluctuating work week.

MORAL OF THE STORY:  First, make sure your employees are classified correctly as exempt or non-exempt.  Second, if you expect employees to work flexible hours, make sure that they are made aware of that, preferably in writing, and that the compensation system reflects this arrangement. It won’t hurt to have employees sign a statement acknowledging that they are expected to work fluctuating hours.  Third, make sure that your employee handbooks, employment applications, payroll records, and other paperwork associated with the fluctuating work week positions reflect the specific nature of that arrangement. Finally, make sure that the human resources department is knowledgeable about any fluctuating work week positions.

For more information regarding the Fair Labor Standards Act, contact Leiza Dolghih

The ADA Does Not Require a Nexus Between a Requested Accommodation and an Essential Job Function – Says the Fifth Circuit

The Fifth Circuit Court of Appeals recently ruled in Feist v. State of Louisiana, that a “reasonable accommodation” under the Americans with Disabilities Act (ADA), does not need to “relate to the performance of essential job functions.” In reversing the district court, the Court of Appeals held that an accommodation could be reasonable even if it does not relate to the essential job functions as long as it makes the workplace “readily accessible to and usable” by a disabled employee, or, alternatively, it allows an employee with a disability to “enjoy equal benefits and privileges of employment as are enjoyed by [the employer’s] other similarly situated employees without disabilities.” Thus, the district court erred by requiring a nexus between the employee’s requested accommodation, a reserved parking space, and her job functions as an assistant attorney general.

The ADA prohibits covered employers from “discriminat[ing] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Discrimination includes failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). According to the Fifth Circuit Court of Appeals, a plaintiff asserting a discrimination claim under the ADA, must show the following:

  • s/he is a “qualified individual with a disability;”
  • the disability and its consequential limitations were “known” by the covered employer; and
  • the employer failed to make “reasonable accommodations” for such known limitations.

The district court in Feist held that the plaintiff established the first two elements, but failed to show that the requested accommodation was “reasonable” because she had failed to demonstrate that not having a reserved parking spot limited her ability to perform “the essential functions of her job” as an assistant attorney general. The Court of Appeals, however, ruled that “the ADA, and all available interpretive authority” indicated that “reasonable accommodations” were not restricted to modifications that enabled performance of essential job functions.

Under the ADA, a reasonable accommodation may include:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9)(A).

Moreover, the ADA implementing regulations define “reasonable accommodation” as follows:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment . . . that enable an individual with a disability who is qualified to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. § 1630.2(o)(1) (emphasis added).

Thus, the Court of Appeals concluded that a modification that enables an individual to perform the essential function of a position is only one of three categories of reasonable accommodation.

What does this mean for Texas business owners? When addressing an accommodation request by an employee with a disability, the employer should not deny the request simply because the accommodation does not relate to the employee’s essential job functions.  The employer should further consider whether the accommodation will allow the employee to enjoy the same benefits and privileges that other similarly situated employees without disabilities enjoy.  If the answer to that question is “yes,” then the employer will have to provide the accommodation, unless it creates an undue hardship.

For more information regarding the Americans with Disabilities Act, contact Leiza Dolghih.

Defamatory Statements Made In Another State: Can You Sue In Texas?

These days, virtually anybody can write something online and have it go viral in a matter of hours. A person’s or a business’s reputation can be ruined in a matter of days by somebody’s thoughtless or malicious remarks. So, what is a person to do? Sometime, a lawsuit for defamation might be an answer. However, when a defamatory and damaging statement is made online, one question arises with frequency – where can the defamed party file the lawsuit? Obviously, it is more convenient to file it in the state where the defamed party lives or conducts business, but is that always possible?

The Fifth Circuit Court of Appeals recently considered whether Louisiana plaintiffs could file a lawsuit in their home state against California defendants who made allegedly defamatory statements about the plaintiffs online. Because the Louisiana long-arm statute is coextensive with the Due Process Clause limits, just like the Texas long-arm statute, the Court of Appeals’s analysis, applies to Texas as well.

In Herman v. Cataphora, the plaintiffs’ steering committee in In Re: Chinese-Manufactured Drywall Products Liability Litigation in the Eastern District of Louisiana hired Cataphora for litigation support. When their relationship soured, Cataphora filed and won a breach of contract lawsuit against the steering committee in the Northern District of California. Afterwards, a technology counsel for Cataphora gave an interview to Above the Law about the lawsuit and stated (presumably referring to the plaintiffs’ steering committee) that “[t]hese guys are the worst of hypocrites you can possibly find. They claim to be trying to help the little guy, but what they are doing is trying to put more money in their own pockets.” The interview took place in California and was quoted on the Above the Law website, which is published by Breaking Media, Inc., headquartered in new York.

Two of the steering committee members sued Cataphora and the technology counsel in the Eastern District of Louisiana for defamation and interference with prospective advantage. The defendants moved to dismiss for lack of personal jurisdiction or to transfer to a proper venue. Without holding an evidentiary hearing, the district court dismissed the case due to lack of personal jurisdiction and ordered a transfer under 28 U.S.C. § 1406(a) to the Northern District of California. The plaintiffs appealed the dismissal order.

The Fifth Circuit held that Louisiana lacked personal jurisdiction over the defendants and explained that when it comes to defamatory statements, the main question is whether the statements are directed at the forum state. Even when a plaintiff feels the harm from the defamatory statements in his home state, it is not enough to gain personal jurisdiction over the defendants in another state, if the statements focus on activities and events outside the forum state.  Thus, even if the plaintiffs in Herman made a prima facie showing that the harm caused by the defendants’ statements would be felt in Louisiana where they practiced law, this was not enough, and “[w]ithout a showing that the statements’ focal point was Louisiana . . . the district court lacked personal jurisdiction over the defendants.” Specifically, the following factors were lacking to establish specific personal jurisdiction over the defendants in Louisiana:

  • Louisiana was not the “focal point” of both the article itself and the harm suffered
  • There was nothing in the comments that explicitly or implicitly connected the parties’ dispute to Louisiana
  • There was no evidence that the statements or the article itself were directed at Louisiana residents
  • There was no evidence that Above the Law had a disproportionately high Louisiana readership

Due to these factors, the Court of Appeals proceeded to remand the case back to the trial court and order it to transfer the controversy to the Northern District of California.

BOTTOM LINE: Unless a defendant who makes defamatory statements about a business or person located in Texas also happens to have “continuous and systematic contacts” with Texas, i.e., general personal jurisdiction, a plaintiff in this state will have to show that the defamatory remarks were directed at Texas, or Texas activities were the “focal point” of such remarks, in order to be able to sue the defendant in Texas.  Plaintiffs, of course, always have an option of suing defendants in their home states.

For more information regarding defamation claims in Texas, contact Leiza Dolghih.

Defamation in Texas: Being Called a “Liar” Will Not Get You Presumed Damages

Texas law recognizes two types of defamation: defamation and defamation per se. While a plaintiff has to prove actual damages in a defamation claim, such damages are presumed in a defamation per se lawsuit, making it a much easier claim for the plaintiff to prove. Whether a particular statement constitutes a defamation or a defamation per se depends on the nature of the statement. Texas law presumes that the following statements are defamatory per se: (1) statements that unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity or (2) statements that are falsehoods that injure one in his office, business, profession, or occupation. See Main v. Royall, 348 S.W.3d 318, 390 (Tex. App.—Dallas 2011, no pet.).

Recently, in the case of Hancock v. Variyam, the Texas Supreme Court found that the statements that a doctor “lacked veracity” and “dealt in half truths” and circulated to his colleagues were not defamatory per se because they did not injure him in his profession as a physician. The Supreme Court proceeded to reverse $181,000 award of damages ($90,000 in actual damages and $85,000 in exemplary damages) because the doctor had failed to provide any proof of them at trial.

The Supreme Court explained that “because the [defamatory] statements did not ascribe the lack of a necessary skill that is peculiar or unique to the profession of being a physician” they were not defamatory per se. Furthermore, because “the specific trait of truthfulness is not peculiar or unique to being a physician,” but is a trait that is necessary in every profession, the defendant’s statement that the plaintiff “lacked veracity” was not defamatory per se. Thus, the plaintiff had to provide evidence of actual damages he had suffered due to the plaintiff’s statements – either evidence that he had lost patients or suffered mental anguish – in order to recover under this claim.

The Supreme Court rejected the Court of Appeals’ reasoning that accusing somebody of being a liar is so obviously hurtful to the person that the damages should be presumed. It also rejected the plaintiff’s argument that the statements by the defendant that the plaintiff “lacked veracity” would so clearly impact his patient care, teaching, research, and publication, that the damages had to be presumed.

Providing an example of what statements would be considered defamatory per se, the Supreme Court relied on the Restatement (Second) of Torts § 573, explaining that statements that a physician is a drunkard or a quack or that he is incompetent or negligent in the practice of his profession or that he is dishonest in his fees, would constitute defamation per se, and the damages would be presumed.

THE PRACTICAL EFFECT: Defamation is a great tool for protecting one’s professional reputation or reputation as a business owner. However, before diving into a defamation lawsuit, it is important to assess what evidence a party will need to prove a claim of defamation and what evidence it has. If the purported defamatory statements fall under the defamation per se category, then the damages will be presumed. However, if the statements are of general nature and do not specifically relate to the party’s profession or occupation, the injured party will have to put on evidence of actual damages incurred as the result of such statements.

According to Hancock, unless being truthful is a specific trait of a profession or a business, being called or labeled a “liar” is not enough to allow a presumption of actual damages.

For more information regarding defamation claims in Texas, contact Leiza Dolghih.

To Protect Trade Secrets, Make Sure the Temporary Injunction Explains What They Are

When a company learns that its former employees are releasing or using the company’s trade secrets, it needs to act fast. No company, therefore, wants to spend precious time and money trying to obtain a temporary injunction preventing the release of the confidential information, only to have it overturned by a Court of Appeals because it was not detailed enough. Yet, that’s exactly what happened in Ramirez, et al. v. Ignite Holdings Ltd., et al.where the Texas Fifth Court of Appeals reversed a temporary injunction because it failed to describe specifically what trade secrets and proprietary information the company’s former employees were prohibited from releasing.

In RamirezStream Energy, a provider of electricity and natural gas, and its marketing subsidiary, Ignite Holdings, employed independent sales associates, who had signed non-compete and non-solicitation agreements. When Stream Energy and Ignite found out that Ramirez and several other sales associates were working for their competitors, they fired them and, shortly thereafter, filed a lawsuit. The companies had no trouble obtaining a temporary injunction because of plentiful evidence of violations, but the sales associates appealed the injunction under Texas Civil Practice and Remedies Code Ann. § 51.014(a)(4), arguing that it was not detailed enough.

Most of the restrains in the temporary injunction had expired by the time the appellate court considered them, but the following provision remained in force, prohibiting defendants from: “possessing, disclosing to any third party, or using for their own benefit or to the detriment of Ignite and Stream Energy any of Ignite’s or Stream Energy’s Proprietary Information/Trade Secrets (including but not limited to proprietary information, confidential information, training materials, templates, or sales or customer lists.)”  The injunction defined “Proprietary Information/Trade Secrets” as “valuable business, training, and sales techniques, methods, forms, materials, guides, lists, downline associate and customer lists, including personal identifying information, and other confidential and proprietary information as discussed above.”

The Court of Appeals found that this prohibition failed to pass the muster under the Texas Rule of Civil Procedure 683, which requires an injunction to “describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained,” and reversed and remanded the injunction to the trial court.  The ruling explained that “techniques,” “materials,” “proprietary information,” and “confidential information” were too broad and general to give the sales associates adequate notice of the type of information they were restrained from releasing or using.  In contrast, the categories of information such as “downline associate and customer lists” and “organizational reports” were detailed enough to meet the requirements of Rule 683.  The Court of Appeals explained that the broad description of the types of the information that the sales associates were prohibited from releasing required them to infer whether any particular information or item in their possession was “proprietary information” or “confidential information” covered by the injunction, and this was “impermissible.”

Since this ruling, the Texas Uniform Trade Secrets Act (TUTSA) has become effective.  It now provides a definition of “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.”  It appears that under Ramirez, simply including the TUTSA definition of a trade secret in an injunction will most likely not meet the requirements of Rule 683.

CONCLUSION: If you do not want your injunction reversed on appeal, make sure to specify in detail the categories of trade secrets you want to be protected.  Broad phrases such as “confidential information,” “proprietary information,” or “trade secrets” will most likely result in a reversal of the injunction, and even if they do not, they will be useless when it comes to determining whether a party is complying with the injunction. The Texas Courts of Appeals have found that attaching a customer list or an example of protected trade secret to an injunction meets the requirements of Rule 683. Any confidentiality concerns associated with such practice, may be assuaged by using the TUTSA‘s new “preservation of secrecy” procedures under Section Sec. 134A.006, which authorizes courts do what is necessary to preserve the secrecy of trade secrets. 

For more information regarding protection of trade secrets in Texas, contact Leiza Dolghih.

Out With the Old, In With the New: The Texas Uniform Trade Secrets Act (TUTSA) Explained

The Texas Uniform Trade Secrets Act (TUTSA) became effective on September 1, 2013, replacing the hodgepodge of common law, restatements and the Texas Theft Liability Act with a well-established statutory framework that 46 other states are already employing. TUTSA is a welcome change in our state because it modernizes and clarifies a lot of outdated rules, some of which have not been updated since 1930s. TUTSA does not apply to any misappropriation, including continuing misappropriation, occurring prior to September 1, 2013.

This post explains the major changes brought by TUTSA and their effect on trade secret litigation n Texas.

1.         TUTSA clarifies and expands the definition of “trade secret.

Under TUTSA § 134A.002(6), “trade secret” means information that derives independent economic value from not being generally known or readily ascertainable and for which reasonable efforts are made to maintain its secrecy.  Such “information” includes “a formula, pattern, compilation, program, device, method, technique, process, financial data, or list of actual or potential customers or suppliers.”

  • The new definition omits the “continuous use” language, thus allowing plaintiffs to claim as trade secret information that they have not yet had an opportunity to use.
  • Trade secrets now include not only positive information, but “negative knowhow,” which is information that has commercial value from a negative viewpoint, such as the results of lengthy and expensive research which proves that a certain process will not work could be of great value to a competitor.  See UTSA § 1 cmt.
  • Whether the information is considered “secret” is now determined by whether a party undertook “reasonable efforts to maintain the secrecy of such information,” rather than the difficulty with which such information could be acquired.  The new standard allows a fact finder to consider the nature of the trade secret and the facts and circumstances surrounding the efforts to maintain its secrecy in order to determine whether these efforts were reasonable under the circumstances.

2.         TUTSA requires “knowing” misappropriation.

Under TUTSA § 134A.002(3), “misappropriation” includes: (1) acquiring a trade secret by improper means or (2) disclosing a trade secret without consent.  Unlike the old common law, this new statutory definition makes clear that liability applies only to those who know or have reason to know that a trade secret was acquired by improper means, rather than accident or mistake.  Thus, for example, if an employee misappropriates a former employer’s trade secrets and uses them in his new job, the new employer is not liable for misappropriation of trade secrets unless the employer had actual or constructive knowledge that the material was improperly obtained. Needless to say, this provision is a great improvement for employers.

3.         Under TUTSA, “improper means” might include reverse engineering.

Under TUTSA § 134A.002(2), “improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, to limit use of, or to prohibit discovery of a trade secret, or espionage through electronic or other means.  When a license agreement prohibits reverse engineering, such activity would constitute a breach of the duty to limit the use of trade secret information and would constitute “improper means.”  In absence of any prohibition in a license agreement, however, reverse engineering would constitute “proper means” as defined in § 134A.002(4).

4.       TUTSA broadens injunctive relief

  • Texas courts have traditionally been reluctant to expressly recognize the idea of “threatened misappropriation,” which is often linked to the “inevitable disclosure” doctrine.  TUTSA § 134A.003 now includes a provision that allows injunctive relief for both actual and threatened misappropriation of trade secrets.  In some states that have adopted a version of the Uniform Trade Secrets Act,  “threatened misappropriation” does not equal “inevitable disclosure,” while in other states, the courts have found that as long as an employer can show that an employee will perform duties in his new employment that will inevitably cause the employee to use or disclose the former employer’s trade secrets, the old employer can establish “threatened misappropriation.”  Only time will tell, which way Texas will lean.
  • TUTSA § 134A.003 allows the continuation of an injunction for additional time to eliminate any commercial advantage derived from misappropriation, rather than termination of the injunction once the protected information is no longer secret.
  • The same section, “in exceptional circumstances,” allows an injunction that conditions future use of a trade secret upon payment of a reasonably royalty for no longer than the period of time for which use could have been prohibited.  “Exceptional circumstances” include a material and prejudicial change of position before acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
  • Finally, TUTSA § 134A.003 gives courts the power to compel “affirmative acts to protect a trade secret” under appropriate circumstances.

5.        TUTSA creates a cap for exemplary damages

Under TUTSA § 134A.004, “if willful and malicious misappropriation is proven by clear and convincing evidence, the fact finder may award exemplary damages in an amount not exceeding twice any award” of actual damages.  Such cap did not exist under Texas common law.

6.        TUTSA allows recovery of attorneys fees

Prior to TUTSA, the only way a party could recover attorneys’ fees for misappropriation of trade secrets was by filing a claim under the Texas Theft Liability Act, which allows for the recovery of attorneys’ fees to the prevailing party.  Now, under TUTSA § 134A.005, a court may award reasonable attorney’s fees to the prevailing party if: (1) a claim of misappropriation is made in bad faith; (2) a motion to terminate an injunction is made or resisted in bad faith; or (3) willful and malicious misappropriation exists.

7.       TUTSA enhances protection of trade secrets in court

TUTSA provides “a presumption in favor of granting protective orders to preserve the secrecy of trade secrets” and under TUTSA § 134A.006, “protective orders may include provision limiting access to confidential information to only the attorneys and their experts, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”

8.        TUTSA has not changed the following rules:

  • Damages. Under TUTSA § 134A.004(a), “in addition to or in lieu of injunctive relief,” a claimant is entitled to recover damages for misappropriation, which can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.  A court may also impose reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.  These are the same type of damages allowed under Texas common law prior to TUTSA‘s enactment.

For more information regarding the Texas Uniform Trade Secrets Act, contact Leiza Dolghih.

When Are Online Terms Part of a Printed Agreement?

Many companies now use shorter contracts that incorporate the terms and conditions spelled out on a company’s website. It’s an efficient way to keep the terms of similar deals uniform and reduce paperwork. However, when business arrangements unravel, the parties often find themselves arguing in court regarding whether the online terms are part of the printed agreement that they signed.  The answer to that question often depends on whether the parties have sufficiently conveyed their intent to incorporate the online terms into the written agreement.

The Dallas Court of Appeals recently ruled in Montgomery Chevrolet v. Dent Zone Companies that unless the language of the contract shows a clear intent to incorporate online terms and conditions, such terms are not part of the contract.

In this case, Dent Zone, a Texas company, entered into an agreement with Montgomery Chevrolet, a Kentucky company, which contained the following provision, “Additional benefits, qualifications and details of the PDR LINX Service Program are available for your review at our website,” and provided a link to that website. The terms and conditions on the website included a forum selection clause. When the parties’ business relationship soured, Dent Zone sued Montgomery Chevrolet in Dallas, alleging that it had consented to a suit in Texas by the terms of the contract. Montgomery filed a special appearance and argued that the forum-selection clause was not incorporated by reference into the parties’ contract. The trial court denied Montgomery’s special appearance, but the Dallas Court of Appeals reversed, agreeing with the defendant.

The Court of Appeals explained that under Texas law, unsigned documents may be incorporated into the parties’ contract by referring in the signed document to an unsigned document. The language used to refer to the incorporated documents is not important as long as the signed document “plainly refers” and not just mentions the incorporated document.  According to the Court, the clause in Montgomery Chevrolet  simply indicated that the “internet document contained informative materials,” and fell short of actually incorporating the online terms because it did not “plainly refer” to them as becoming part of the parties’ agreement and did not otherwise suggest that the parties intended that the internet document be incorporated in the agreement.

Montgomery Chevrolet provides a good example of what not to do when attempting to incorporate online terms and conditions in a written agreement.  In contrast, a previous decision by the Fifth Circuit Court of Appeals in One Beacon v. Crowley Marine Serv’s, provides a good example of how to incorporate such terms properly.  The Court in Beacon found that the following clause was sufficient to incorporate the terms and conditions on a company’s website, including an indemnification clause: “THIS RSO IS ISSUED IN ACCORDANCE WITH THE PURCHASE ORDER TERMS & CONDITIONS ON WWW.CROWLEY.COM / DOCUMENTS & FORMS, UNLESS OTHERWISE AGREED TO IN WRITING.  The Court ruled that the parties’ intent to incorporate the online terms in their agreement was clear from the explicit language prominently place on the face of the RSO in all capital letters. Moreover, the location of the additional terms was clearly indicated, and any reasonable person would be able to find them.

CONCLUSION: Letting a party to a written agreement know that additional terms are available for review online is insufficient to incorporate such terms. Instead, the language in the written agreement incorporating online terms and conditions should meet the following requirements (to avoid future litigation regarding this issue):

(1) be clear and specific;

(2) be prominently placed on the face of the written document in all capital letters; and

(3) include a specific URL address where the online terms are located, so that the other party can easily find and review the terms.

For more information regarding enforcement of contracts in Texas, contact Leiza Dolghih.

Practical Guide to Enforcing Non-Compete Agreements in Texas (Part I)

You have just learned that one of your former employees might be violating the terms of his non-compete agreement with your company.  What should you do? Should you call him and ask him to stop? Should your general counsel send him a letter threatening with a legal action? Or should you immediately file for a temporary injunction? You might end up doing all of these things, but your first step should be gathering evidence that will support your claim of violation, and you should move as quickly as possible.

Thus, before you alert the employee that you are aware of his activities, and before you spend thousands of dollars in attorney’s fees in pursuing a temporary injunction, follow these steps that will help you assess the strength of your claim against the ex-employee and gather the necessary ammunition.

STEP 1:  Gather Relevant Evidence

You will need to know as much as you can about the employee in question and any agreements he might have signed with the company that might contain a post-employment restriction on his activities.  Look for the following documents in the employee’s file:

(1) employment applications;

(2) offers letters;

(3) employment contracts;

(4) stock option agreements;

(5) non-competition agreements;

(6) non-solicitation agreements;

(7) separation or severance agreements;

(8) any releases of claims executed as part of any settlement agreements;

(9) documents that an employee might have executed as part of the merger and acquisition; and

(10) any other agreements signed by the employee that might contain any post-employment restrictions.

When you look for these documents, keep in mind that a non-compete agreement in Texas might be a stand-alone document or it can be incorporated in one of the above documents.

Also, remember that in Texas, for a non-compete to be enforceable, an employer must give a separate consideration in exchange for the employee’s promise not to compete with the employer.  This consideration can come in a form of confidential information, stock options, or some other benefit.  See Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2011). Therefore, make sure to review the employee’s benefit file for any compensation and benefit agreements that might contain a non-compete provision.

STEP 2:  Interview Relevant Witnesses (and obtain affidavits when possible)

Now that you have gathered the relevant documents, reviewed them, and have a reasonably good idea of which non-compete provision(s) govern the employee’s actions, you should contact potential witnesses of his activities that are in violation of the non-compete.

Start with interviewing your current employees who have worked with this individual.  If they work with the same customers or in the same geographic area as the offending ex-employee, they might have specific information about his post-employment actions.  Being the employees of the company, they have an added incentive to be helpful.

Then, consider interviewing your clients or customers, who might be able to confirm a suspected violation of a non-compete agreement.  Of course, you will want to consider what effect such communication will have on your client relationship.  Some customers might not think twice about sharing the information with you, while others might be extremely reluctant to get involved in a dispute between a company and its former employee.

Somebody from your general counsel’s office should be conducting the interviews, or at least be present at them.  First, they know exactly the type of information they need to obtain to establish a violation of a non-competition agreement.  Second, any customers or employees that know about the violations might become witnesses in a court proceeding later on, so it is important to establish a relationship between them and the company’s lawyers as early as possible.  Finally, if a customer or an employee is particularly helpful, you will want to obtain their affidavit, and an attorney who is familiar with the facts will be able to draft one quickly.  Such affidavits are crucial to obtaining injunctive relief, and after providing a sworn statement, the customers or clients are less likely to change their story later.

STEP 3: Issue Litigation Hold Preserving Electronic Evidence

After conducting the interviews, you should have a pretty good idea of whether your ex-employee is, indeed, violating his non-compete agreement.   At this point – and you must act quickly – you should issue a preservation hold within your company directing appropriate people to preserve any documents that might be relevant to your legal dispute with the ex-employee.

You will want to send an email to the appropriate departments directing them to preserve:

(1) former employee’s email – many companies automatically delete emails after a certain time, so make sure your IT department stops this process with regard to the relevant email;

(2) former employee’s desktop computer, laptop, IPad, and any phones that your company has provided to him;

(3) security footage or records showing when the former employee entered the building and/or his office prior to his departure from the company;

(4) former employee’s internet browsing history.

Most of this information, especially when it comes to the ex-employee’s laptop or desktop computers, might be long gone by the time you find out that the former employee is violating his non-compete agreement. Therefore, it is usually a good practice, to have your IT department or a forensic technology specialist take a snapshot of an employee’s computer before his or her departure if you know that the employee is subject to a non-compete restriction.  While it might be expensive to do so, such a preventative measure might save you a lot of money in the long term, especially if the employee is departing on bad terms.

So, now you have determined which non-compete agreement applies to the employee, you have talked to witnesses who have given you a first-hand account about the employee’s activities that seem to violate the non-compete agreement, and to top this off, you have found emails from the employee transferring company customer lists or confidential information to his personal email account.  What do you do now? I will discuss the next steps in Part II.

Leiza litigates non-compete and trade secrets lawsuits on behalf of EMPLOYERS and EMPLOYEES in a variety of industries, and knows how such disputes typically play out for both parties. If you need advice regarding your non-compete agreement, contact Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.

Texas Allows Non-Signatories to Enforce Arbitration Agreements

Many companies prefer to resolve their business disputes through arbitration, rather than litigation, because in many cases the arbitration process is faster, cheaper, and more effective due to arbitrators’ familiarity with the industry.  A recent decision by the Fourteenth Texas Court of Appeals reassures business owners that even if they have not signed an arbitration agreement, they might be able to enforce it as long as it was signed by their agent or affiliate.

In Satya, Inc. et al. v. Mehtaplaintiff Mehta entered into a limited partnership agreement that contained an arbitration provision. The agreement was signed by Mehta, on his own behalf, and by Bahtija, on behalf of the general partner of the limited partnership.  When Mehta discovered what he thought was self-dealing by Bahtija, he filed a suit for breach of fiduciary duties and violations of the Texas Securities Act against Bahtija, the limited partnership, two owners of the general partner, and a corporation that the two individuals also owned. Mehta alleged that all the defendants were agents for one another and were acting within the scope of their agency when committing the alleged torts.

The defendants moved to dismiss the case and compel arbitration pursuant to the arbitration provision contained in the limited partnership agreement. Mehta argued that only the limited partnership should be dismissed, but that the rest of the defendants had to litigate the claims because they never signed the arbitration agreement.

After determining that Mehta’s claims fell within the scope of the arbitration agreement, the Court of Appeals ruled that the defendants could enforce the arbitration provision found in the limited partnership agreement even though they never signed the agreement, because they were agents of the general partner, which was a signatory to the agreement.

The Court of Appeals‘ decision is consistent with the Texas Supreme Court‘s ruling in In Re Kaplan Higher Education Corp., where plaintiffs tried to avoid arbitration by suing only the non-signatory agents of the signatory to the arbitration agreement.  The Supreme Court explained that while the arbitration clauses do not automatically cover all corporate agents or affiliates, where an agent or an affiliate of a signatory was acting on behalf of the affiliate, the agent could enforce the arbitration agreement signed by the party on whose behalf it was acting.

PRACTICAL ADVICE: When attempting to determine who can enforce a particular arbitration agreement, look beyond the names on the signature lines.  In Texas, a party to a legal dispute may enforce an arbitration agreement it did not sign, if its agent signed it.  Also, an agent who did not sign an arbitration agreement, might be able to compel arbitration if his/her employer signed such an agreement, as long as the legal dispute arises out of the agent’s actions on behalf of his/her employer.

A business using an arbitration agreement, should also consider defining the parties to the arbitration agreement broadly to include individual partners, affiliates, officers, directors, employees, agents, and/or representatives of any party to the arbitration agreement.  See In re Joseph Charles Rubiola, et al., where the Texas Supreme Court held that such a broad provision expressly allowed non-signatories that fell into the definition of the “parties” to enforce the arbitration agreement in question.

For more information about enforcement of arbitration agreements in Texas, contact Leiza Dolghih.

Using a Temporary Injunction to Stop Business Disparagement

The word on the street is that your competitor is contacting your customers or your industry relations and is telling them information that could potentially or is already hurting your business in Texas. What can you do? One of the solutions is to seek a temporary injunction from a court ordering the competitor to stop the harmful communication. The Dallas Court of Appeals has recently explained the hurdles that a business owner has to overcome to obtain such an injunction.

In Dibon Solutions v. Nanda, et al., the owner of Dibon found out that Nanda was sending communications to Dibon’s customers and its bank, accusing it of being subject to: (1) an IRS investigation; (2) an ICE and FBI investigation for money laundering, visa fraud, human trafficking, and harboring illegal aliens; (3) a DOL investigation for unpaid back wages; (4) multiple lawsuits; (5) making bankruptcy threats; (6) diversion of assets; (6) multiple liens; (7) non-performance on bank loans; and (8) forging documents.

Dibon sued Nanda for defamation, business disparagement, breach of fiduciary duty, and tortuous interference with existing contract, and sought a temporary injunction barring Nanda from contacting Dibon’s customers “for the purpose of communicating disparaging information regarding [Dibon] to such customers.”

The trial court issued a temporary restraining order (valid for a short period), but denied Dibon’s application for a temporary injunction that would extend the bar on Nanda’s communications until the lawsuit has been resolved. Dibon appealed and the Court of Appeals sided with the trial court finding that the issuance of a temporary injunction would violate Nanda’s First Amendment rights.

A party applying for a temporary injunction in Texas, must plead and prove: (1) a cause of action the opposing party; (2) a probable right on final trial to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Additionally, when applying for an injunction that will curb somebody’s speech, the applicant must establish that the speech it is trying to stop is not protected by the First Amendment.

The United States and Texas Constitution prohibit prior restraint on free speech – i.e. judicial orders forbidding certain communication before such communication occurs.  A misleading commercial speech, however, is not protected by either Constitution and, therefore can be prohibited by a court.

Unfortunately for the plaintiff in Dibon, he failed to provide evidence showing that Nanda’s statements to Dibon’s customers were false or misleading.  In fact, both Dibon’s president and a vice president admitted during the temporary injunction hearing, that at least some of Nanda’s statements were true. Moreover, the plaintiff failed to introduce any witnesses that could refute the truthfulness of Nanda’s statements or any documents that demonstrated their falsity.  Because the plaintiff was unable to show that Nanda’s statements were false, they were protected by the First Amendment, and the court could not forbid Nanda from making them.

Dibon also argued that Nanda’s commercial speech was not protected by the First Amendment because it constituted tortuous interference.  However, the Court of Appeals rejected this argument as well, because the plaintiff failed to establish at the hearing an important element of tortuous interference – that Nanda’s statements actually persuaded Dibon’s customers to breach their contracts with Dibon.

BOTTOM LINE:   As a business owner, you can always file a lawsuit and attempt to recover monetary damages caused by your competitor’s disparaging statements.  However, if you want to prevent the competitor from making such statements while the lawsuit is pending, you will need evidence establishing that the statements are false or that they have caused your customers to breach their contracts with you.  Without such ammunition, the competitor’s statements are likely to be protected by the First Amendment.

For more information about obtaining a temporary injunction in a business dispute in Texas, contact Leiza Dolghih.