To be protected by Texas trade secret law under the Texas Uniform Trade Secrets Act (TUTSA), information must be valuable because it is neither “generally known” nor “readily ascertainable” to third parties unless those third parties use improper means to get it. Clearly, this includes information that a third party could not acquire without breaking the law.

However, it also includes some forms of information that can be obtained legally, if a third party chose to use illegal or improper means to get the information instead. Imagine, for example, that Company X develops a machine that allows it to carry out a key industry task in half the time. Even though the machine is relatively simple in design, Company X goes to great lengths to keep the machine’s design a secret. Company Y acquires copies of the schematics for the machine under false pretenses.

Even though the machine could easily be reverse-engineered to determine how it works (thus making its workings “readily ascertainable”), because Company Y decided to use improper means to get the information instead, Company X can still hold Company Y accountable for misappropriating a trade secret.

Information that is not “generally known” or “readily ascertainable” does not have to be known or ascertainable to the public at large. Instead, to lose its trade secret status, information has to be generally known to a particular audience – those who can benefit economically from knowing it.

For instance, in Taco Cabana Int’l, Inc. v. Two Pesos, Inc. (1991), a federal court held that the defendant, who acquired copies of Taco Cabana’s building plans under false pretenses, could be held liable for misappropriating a trade secret, even though copies of the same plans had been filed along with Taco Cabana’s building permit. Although the general public could have acquired the information, that fact was not relevant. What was relevant was the fact that, instead of acquiring a copy of the building permit by legal means, Two Pesos decided to acquire the plans under false pretenses.

Under the common law, Texas courts frowned upon parties that used improper means to procure trade secrets. This approach continues to be used under the TUTSA.

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A Taxotere hair loss lawsuit has been filed by a plaintiff who claims that she suffered permanent hair loss after taking the drug as a part of her chemotherapy treatment for breast cancer. Other affected patients may be eligible to seek compensation with the help of drug injury lawyers Shaw Cowart LLP.

For more information, contact Shaw Cowart LLP today. Our consultations are free, confidential and without any obligation on your part. We can help answer your questions, and if you choose to pursue a claim we can connect you with an affiliated attorney who can assist you throughout the legal process.

Important: The time you have to pursue a claim is limited. Contact us for more information.

What is Taxotere?

Taxotere is a drug used in the treatment of various forms of cancer, including breast cancer. Taxotere is a part of a family of drugs commonly referred to as Taxanes. Taxanes are diterpenes produced by the plants of the genus Taxus (yews) featuring a taxadiene core. Taxanes are widely used as chemotherapy agents and include paclitaxel (Taxol) and Taxotere. Taxane agents also exist as cabazitaxel and in generic forms as well. Paclitaxel (Taxol), which was developed, manufactured, and distributed by Bristol-Myers Squibb and is the main competitor drug to Taxotere, was first approved by the U.S. Food and Drug Administration (FDA) in December 1992.

Taxotere was approved by the FDA in 1996 and is alleged to have been marketed by drug maker Sanofi Aventis and its related companies and predecessors as a superior treatment to Taxol.

What are the Risks of Taxotere?

Taxotere Side Effects include:

• Extreme weakness
• Severe vomiting or diarrhea
• Fever, chills, body aches
• Easy bruising
• Rapid heart rate
• Trouble concentrating

Serious side effects associated with Taxotere may include:

• Death
• Permanent hair loss (alopecia)
• Heart issues
• Nerve damage
• Alcohol intoxication
• Eye disorders
• Allergic reactions

A Taxotere hair loss lawsuit may be an option for patients who suffered permanent hair loss or other side serious side effects as a result of the drug.

Taxotere and Permanent Hair Loss

Although temporary hair loss may be a possible side effect of chemotherapy or radiation therapy, complete and permanent hair loss (alopecia) has been linked to Taxotere. In December 2015, the FDA updated the warning label for Taxotere to include the risk of permanent hair loss associated with the drug.

Furthermore, a study carried out on 20 women who had breast cancer chemotherapy and had taken Taxotere, found that no regrowth of the scalp was noted. The research, conducted between 2007 and 2011, even involved regrowth treatments including vitamins and ultraviolet A therapy, but still no hair regrowth was observed. Another study, published in the 2011 American Journal of Dermatopathology found that “there is increased evidence that certain chemotherapy regimens can cause dose-dependent permanent alopecia”, including Taxotere for breast cancer.

Taxotere Hair Loss Lawsuit Claims

Lawsuits claim that, despite the assertions of the drug’s maker, it does not have superior efficacy to other Taxanes. Plaintiffs allege that the defendants concealed from the FDA, from doctors, and from patients the existence of a study concluding that Taxol was, in fact, more effective than Taxotere for certain chemotherapy patients. Additionally, lawsuit plaintiffs claim that the drug makers engaged in “a fraudulent marketing scheme, paying kickbacks, and providing other unlawful incentives to entice physicians to use” Taxotere.

Lawsuits further allege that, although hair loss is a common side effect of chemotherapy, permanent hair loss is not. The drug makers are accused of misleading the public and the medical community to believe that, like other chemotherapy drugs, patients who took Taxotere would see their hair grow back.

Significantly, plaintiffs claim that:

Although women might accept the possibility of permanent baldness as a result of the use of Taxotere if no other product were available to treat their cancer, this was not the case. Before Defendants’ wrongful conduct resulted in thousands of women being exposed to the side effects of Taxotere, there were already similar products on the market that were at least as effective as Taxotere and did not subject female users to the same risk of disfiguring permanent alopecia as does Taxotere.

Affected patients claim that the permanent hair loss they suffered as a result of taking Taxotere caused them to experience a “disfiguring condition,” resulting in great mental anguish and economic damages.

Has There Been a Taxotere Recall?

As of March 2016, there has not been a Taxotere recall relating to alopecia or permanent hair loss. It was not until December 2015 that the FDA warned that Taxotere may result in permanent hair loss and updated the warning label for the drug.

Although there has not been a Taxotere recall, potential lawsuits may claim that the drug makers failed to disclose known side effects of the drug and that patients suffered damages as a result. Failure to warn of side effects of a drug can be a basis of drug company liability, regardless of whether the drug has been recalled.

Has There Been Taxotere Settlements?

Some cases settle early in the claims process, but it is not expected that there will be early Taxotere settlements. In most cases that proceed in an MDL or state court consolidated proceedings, after a certain period of time initial trials, also known as bellwether trials, take place. The purpose of these trials is for the parties to get an idea of the types of evidence and arguments that will made, as well as to see how juries will respond to the evidence and arguments. After a certain number of cases have been tried, the parties are in a better position to determine whether a case can be settled.

It is expected that Taxotere settlements will follow this pattern, although the outcome of any case is never guaranteed and past results are not necessarily predictive of future outcomes.

How a Taxotere Hair Loss Lawsuit Can Help

Drug manufacturers have a duty to ensure their products are accompanied by full and accurate instructions and warnings to guide prescribing doctors and other health care providers in making treatment decisions. If a drug maker fails to fulfill this duty, it could be held liable in lawsuits for injuries that may result.

Patients who are injured by Taxotere may be entitled to compensation for damages, including:

• Medical expenses
• The permanency of the injury
• Pain, suffering, and mental anguish
• Loss of income or ability to work

If a patient dies from complications after taking Taxotere, family members may be entitled to compensation for the wrongful death of their loved one, including:

• Conscious pain and suffering of a loved one prior to death
• Pain, suffering, and mental anguish from the loss of a loved one
• Funeral expenses

Patients who have suffered severe side effects, including permanent hair loss, after taking Taxotere, as well as the families of those who have died as a result of complications with the drug, are encouraged to seek the advice of a Taxotere lawsuit attorney to learn more about their rights and remedies.

The Time You Have to Pursue a Claim is Limited. Contact Us Today.

For more information, contact Shaw Cowart LLP. You can fill out the form on this page or call us at the number listed at the top of the page.

When you contact us, an attorney will follow up with you to speak with you about your case or answer questions that you might have. There is no cost or obligation to speak with us, and any information you provide will be kept confidential.

Please note that the law limits the time you have to pursue a claim or file a lawsuit for an injury. If you think you have a case, you should not delay taking action.

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In 2013, The Texas Uniform Trade Secrets Act (TUTSA) went into law, making significant changes to a number of aspects of the law protecting trade secrets within the state. The TUTSA applies to misappropriations of trade secrets that take place on or after September 1, 2013 – cases before this date are still governed by common law.

Under the Texas Uniform Trade Secrets Act, a “trade secret” includes a wide variety of types of information that “derive independent economic value…from not being generally known to, and not being readily ascertainable to, other persons who can obtain economic value” from it, and for which reasonable measures are taken to keep it secret.

In other words, trade secrets are secret. In order to qualify as a “trade secret,” information must be difficult for other people to acquire without using improper means to do so – and the owner of the information must have taken reasonable steps to keep that information secret.

Since secrecy matters, information that is disclosed to third parties generally won’t be treated as a trade secret. However, the timing of the disclosure matters. For example, suppose that an employee of Company X smuggles a formula for a breakthrough chemical compound out of her workplace and sells it to another company. A month later, the U.S. Patent and Trademark Office grants Company X a patent on the same formula. While Company X cannot claim the formula is a “trade secret” after the patent is granted (because patents are public information), it may be able to claim that the formula was a trade secret before the patent was filed.

In addition, to be protected as a trade secret under Texas law, the information must derive at least some of its economic value from being secret, or at least from not being widely known. This economic value may be actual (it is generating value currently) or potential (it can generate value).

General knowledge cannot become the subject of a trade secret dispute, even if a company applies the same secrecy methods to that knowledge as it does to all information it handles. Likewise, if information is “readily ascertainable” – for instance, if a chemical compound can be broken down in a lab to determine its contents – the information is not likely to be treated as a trade secret.

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April is National Distracted Driving Awareness Month and TxDOT is continuing its TALK. TEXT. CRASH. campaign to raise awareness of the dangers associated with distracted driving and urging motorists to put away their mobile devices and pay attention to the road.

38 percent of Texas drivers admitted to talking on their mobile phone while driving at least some of the time, according to a survey conducted by the Texas A&M Transportation Institute, and more than one-fifth (21.2 percent) of drivers said they read or send text messages or emails when behind the wheel.  Last year, more than 100,000 car crashes involve distracted driving and caused preventable deaths.

The Talk, Text, and Crash campaign warns motorists about the dangers of distractions and urges them to avoid multitasking or engaging in non-driving activities until they arrive at their destination.

So what activities constitute distracted driving? Cell phones and electronic gadgets are not the only causes of distracted driving, others include:

• Posting to social media
• Emailing
• Loud music;
• Loud conversations with other passengers;
• Eating or drinking;
• Attending to animals and/or other passengers in the car;
• Changing radio stations;
• Powerful emotions, such as anger, frustration, or even elation/enthusiasm.

Basically, anything that takes your mind off the task at hand (driving safely) can, at least theoretically, increase your risk of getting into a crash.

The best way to end distracted driving is to educate yourself and others about its danger.  Any behavior that draws a driver’s attention away from driving is dangerous.

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Steps a Company should take, including general advice about conducting an investigation

Imagine that one of your supervisors discovers that thousands of pages of confidential Company billing and financial information has been downloaded, and e-mailed to a personal e-mail address. Upon further investigation, your supervisor has discovered that an employee has asked other employees to also send Company documents to her personal e-mail address.

This situation occurs frequently and management needs to respond quickly and comprehensively.  Each situation demands a customized response, but the general tenets of a proper response by a Company appear below.

• Review the information that was taken and determine whether the information was already publicly available, or whether it contains Company confidential or trade secret information.
• Determine whether multiple copies of the stolen documents exist and whether they have been designated or labeled as confidential or trade secret.
• Evaluate adequacy of policies and procedures, agreements with the employee to determine the scope of the employee’s violations as well as determining whether the employee has a history of similar violations or conduct.
• Involve internal IT Security department or an outside IT security/forensic specialist to assess and remedy the data breach. It is essential to conduct interviews of employees, including those employees from which the employee at issue attempted to solicit further documents.
• If other employees transferred documents to the employee, an investigation of their activities will be necessary.
• Depending upon the nature of the information taken by the employee(s), the Company may have an obligation to report a data breach, particularly if the employee has shared the data with unauthorized third parties.
• Conduct an immediate in-person interview with the employee. During the interview, the employee should be confronted regarding the data transfers. The Company may discover there is an innocent explanation for the activity. The Company should probe the extent of the personal transfers, transfers from others, and whether the employee has disclosed the documents to third parties. The Company should also question the employee concerning the employee’s motivations as well as the employee’s awareness of Company policies and agreements prohibiting such activities. The Company should ask for the employee’s immediate cooperation in returning the data and request access to the employee’s personal email account as well as any other electronic devices or accounts that contain Company information to accomplish the same. It is important that the Company obtain the return of the data, particularly if the information is confidential or trade secret, so that the Company can attempt to preserve its confidential nature.

The investigative phase of this process is critical.  In our next post,  we will discuss when to consider  having outside counsel present and who from  your company  is best to include and keep away.

• Assuming that there is no legitimate reason for the employee’s actions, the Company will need to consider appropriate discipline for the situation, including considering suspension or termination of the employee. It’s is key to create written documentation clearly demonstrating the reason such discipline was for violation(s) of particular policies or agreements, as opposed to in retaliation for any purported whistleblowing.

Civil legal theories against the employee may include, among other claims, breach of contract, breach of loyalty, conversion, trade secret misappropriation, and/or a violation of the Computer Fraud and Abuse Act (depending upon the jurisdiction) or similar state computer data protection or access laws. Depending upon the gravity of the situation, the Company may also want to consider approaching law enforcement to consider pressing charges against the employee.

• If the employee refuses to return the documents and make the employee’s accounts and other electronic devices/accounts containing Company data available for inspection to obtain the return of the purloined data, the Company may need to consider seeking immediate injunctive relief in court.

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According to the SongFacts.com website, in 1962-and again in 1975-Neil Sedaka had a hit song called “Breaking Up Is Hard to Do.” Sedaka was, of course, referring to how painful a romantic breakup can be. However, the breakup of a Texas business partnership can also be painful. This could be especially true if the partnership was composed of people who were friends prior to going into business together.

As observed in the Wall Street Journal, things can get a little “ugly” when a partnership goes south given that emotions can run high. However unpleasant the breakup of a partnership can be, sometimes it becomes necessary if disputes between business owners have taken a turn for the worse resulting in the paralysis of the business.

If a partnership has passed the point of no return, and dissolution appears to be the only viable alternative, there are ways to gracefully bring up the subject to the other partners. The author of an article published in the Huffington Post advises the following: First, try to be honest with your partners. Sit down with them and frankly discuss what you think went wrong and why continuing the partnership business is not a good option. Always think before you act. You never want to say something in the “heat of the moment” that precipitates a crisis and may torpedo any chance for an amicable dissolution of the partnership.

Communicating with as much transparency as possible may help since it allows your partners to know exactly where you stand. If you have thoughts about how to best deal with the consequences of ending the business partnership, you might want to work up some preliminary strategies and alternatives to share with your partners. If everyone comes to the conclusion that the partnership should be dissolved, it would be wise for each partner to hire their own attorney. This will allow the parties to negotiate at arm’s length without the danger of undue emotions entering into the negotiations.

Handling dissolution

YSF magazine observes that, if you are going through partnership dissolution, it is essential that you try to act in ways that permit you to maintain your integrity. Keep in mind that you need to be perceived as being scrupulously fair in your professional and personal dealings during the time of dissolution. Maintaining your reputation intact during and after partnership dissolution is critical if you intend to continue in business. Prudently, you should try to ensure that you are preserving all necessary business contacts you might need in the future.

There are three things not to do when engaged in dissolving a partnership. First, do not let customers’ needs “fall by the wayside.” Assuming you desire to conduct the same type of business in the future, allowing customer service to slide during a partnership dissolution can come back to haunt you since customers are sure to remember sub-par service. Second, do not speak negatively about any of the partners involved in the dissolution. Once again, remember that you have your business reputation to preserve. Third, never publicly broadcast about information to the public about the dissolution.

Seeking legal advice

If you believe that your business partnership has passed the point of no return and that dissolution is the only viable alternative, you should consult with a Texas attorney who has experience in handling legal matters pertaining to partnership dissolution.

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On behalf of Ethan Shaw

In recent years, many hailstorms in Texas have resulted in tens of thousands of claims against property and casualty insurers. Many of these claims are the result of third-party contractors, adjusters and attorneys going into affected areas and soliciting business. In response to this situation, earlier this year Senator Larry Taylor of Galveston introduced S.B. 1628. The goal of the bill is to reduce the number of lawsuits filed against insurance companies by ensuring only meritorious claims are filed. It would make it more difficult for homeowners to file lawsuits against insurers by establishing additional requirements.

For example, the bill adds to existing law Sec. 541.1541 applicable to actions “brought by an insured relating to or arising from a claim made under an insurance policy for damage to or loss of real property or tangible personal property alleged to be covered by the policy.” 2015 Texas Senate Bill No. 1628, Texas Eighty-Fourth Legislature.

The requirements under the new section are as follows:

An insured must provide written notice to all potential defendants within 61 days before the lawsuit is filed. If the amount sought by the insured involves damages for items previously submitted to the insurer, the notice must be signed by the insured and state:

• The specific items and amounts alleged to be owed by the insurer
• The amount of the actual damages, other damages, interest and expenses, specifically stated for each item, that the insured alleges are owed
• The amount of attorneys fees the insured reasonably has incurred
• An amount that includes the amounts described above that the insured will accept in full and final satisfaction of the claim
• The name of every person to whom notice is given under this section

If the amount sought by the insured involves damages for items not previously submitted to the insurer, the notice must also include:

• A statement of the reason the damage items were not previously submitted
• Copies of reports, estimates, photographs and other items reasonably supporting the additional items
• A statement that the insured will cooperate in allowing the insurer to inspect the insured property for purposes of investigating the additional damage items

The notice must be sent to the insurer by certified mail, return receipt requested

Source: 2015 Texas Senate Bill No. 1628, Texas Eighty-Fourth Legislature

The bill also contains provisions prohibiting certain public adjuster activities, creating a practical standard for bona fide disputes, defining actual damages, addressing liability for persons working on behalf of the insurer, clarifying illegal insurance and estimate practices and prohibiting improper solicitation.

The bill passed the Senate on April 30, 2015. It has received a first reading in the House and was referred to the insurance committee which distributed a favorable report on the bill on May 21, 2015.

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In Johnson v. Heckmann Water Resources (CVR), Inc., the U.S. Fifth Circuit Court of Appeals upheld a ruling by a federal district court in Texas which summarily denied a suit by employees alleging that their former employers violated the Federal Fair Labor Standards Act’s overtime wage requirements. The appeals court determined that an employer’s workweek need not conform to a traditional Sunday through Saturday calendar week. Employers are permitted to define the workweek in ways that limit the overtime compensation of their employees.

Background and procedural history

The employees’ work schedule required them to work seven days in a row for 12-hour shifts, beginning every other Thursday. The employees were paid biweekly. The employer calculated overtime wages using a Monday to Sunday workweek.

The employees filed suit in the U.S. District Court for the Eastern District of Texas. The suit alleged that the employer’s use of a Monday through Sunday workweek in calculating overtime violated the overtime wage requirements under the Fair Labor Standards Act.

The district court issued a ruling summarily denying the employees’ claims. The employees filed an appeal of the ruling in the U.S. Fifth Circuit Court of Appeals.

The Fifth Circuit’s decision

The Fifth Circuit upheld the district court’s ruling. Employers have a right to establish a workweek, and it does not need to coincide with the traditional Monday through Sunday calendar week, the appeals court said. There is no requirement that an employer start the workweek on any particular day of the week. Federal regulations permit a workweek to start on any weekday and at any hour of the day. A single workweek may be established for all employees within the entire establishment or multiple workweeks may be set up covering different employees or groups of employees. Even though the employer’s workweek does not maximize overtime pay, that fact alone does not constitute a violation of the Act. Federal law merely requires that the workweek that is established is “a fixed and regularly recurring period of 168 hours-seven consecutive 24-hour periods.”

In this case, the employer complied with the Act, even though the employees’ actual seven consecutive day, Thursday through Wednesday, work schedule spanned two workweeks reduced the potential amount of overtime wage compensation.

Contact an attorney

Employers facing litigation and legal disputes under state and federal wage and hour laws are urged to seek the professional services of a competent attorney who is experienced in such matters to ensure that their rights are fully protected.

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In a notice issued last year, the U.S. Food and Drug Administration discouraged the use of laparoscopic power morcellation for the removal of the uterus (hysterectomy) or uterine fibroids (myomectomy) in women because, based on an analysis of currently available data, it poses a risk of spreading unsuspected cancerous tissue, notably uterine sarcomas, beyond the uterus.

Many women are now filing claims against Ethicon Inc., a division of Johnson & Johnson, and the manufacturer of the Power Morcellator. The Morcellator has the potential of leaving cancerous fragments behind and making the spread of the cancer cells to other parts of the body possible.The FDA estimates that 1 in 350 women who undergo a procedure with a Power Morcellator may have undiagnosed uterine cancer. The FDA issued a safety warning in April 2014 against using this device in uterine and fibroid removal surgeries.

Morcellation devices are used during several medical procedures. While the morcellator device provides a less-invasive surgery and quicker recovery time, the following have been listed as potential side effects:

• Spread of malignant tissue
• Advanced-stage cancerous growths
• Metastatic leiomyosarcoma, an aggressive uterine cancer

Women who believe that their cancer diagnosis was made worse as a result of their choice to undergo a less invasive fibroid surgery or hysterectomy are currently filing lawsuits.

If you or a loved one has been diagnosed with cancer and you previously had a fibroid removal or hysterectomy, you should consult with one of our knowledgeable attorneys. There is no charge for a consultation.

Shaw Cowart LLP will continue to update you with news of the ongoing litigation and the status of these devices in the market.

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