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Click here for the full text of this decision FACTS:Yinghui Liu was hired by Trilogy Software as a computer programmer in 1999. The day he started, Liu signed a “Proprietary Information Agreement,” which contained a clause forbidding disclosure of proprietary information, and a noncompete clause. The anti-disclosure clause presumed that Liu would be given access to and would create confidential and proprietary information as part of his Trilogy duties, and that he would be prohibited from discussing such information with people outside of Trilogy. The noncompete clause stated that, in exchange for the training and the access to proprietary information, Liu agreed not to work, from between one year to two years after leaving Trilogy, for any person or entity engaged in the same business as Trilogy in any county, parish, state or “any country or political subdivision of the world” where Trilogy conducted business. The PIA further required Liu to return any Trilogy property upon termination. It also stated that the PIA was not an employment contract. Though Liu signed the agreement, no one from Trilogy did. Nonetheless, on his first day at work, Liu was given access to proprietary information and training necessary to one of his primary duties: to write new management software for Aetna. Liu was laid off just over three years after he began work. Trilogy prepared an “Employment Separation Agreement” that allowed Liu to remain on the payroll for another month, to preserve his immigration status, but that stated that the terms of the noncompete and confidentiality provisions would still be in effect. The PIA was stapled to the back of the ESA. Liu was eventually hired by Callidus Software, which had offered Liu a job while he was still employed with Trilogy and which produced certain management software that was in competition with Trilogy’s software. Trilogy immediately filed suit against Liu, claiming breach of the nondisclosure and noncompete provisions, as well as misappropriation and “inevitable disclosure” of Trilogy’s trade secrets. Trilogy also filed suit against Callidus, asserting tortious interference with contracts, misappropriation and “inevitable disclosure” of Trilogy’s trade secrets. The trial court issued a temporary restraining order against Liu and Callidus from using or disclosing Trilogy trade secrets or confidential information, but the trial court did not enforce the noncompete agreement. Liu went on to work on Callidus products, though he claimed in his deposition that a very clear line was drawn so he would not be asked to divulge any information gleaned from Trilogy. Later, Liu worked directly with individuals at Callidus and other businesses to win Aetna’s business, but he was not involved in any activities related to customizing Callidus products to any of its customers’ needs. The trial court eventually granted the summary judgment motions of Callidus and Liu without stating its basis. Trilogy now appeals. HOLDING:Affirmed in part; reversed and remanded in part. The court begins by deciding whether the non-compete clause is enforceable. The first requirement is whether there was an otherwise enforceable agreement at the time the noncompete agreement was made, as required by Business & Commerce Code 15.50. The court concludes because Trilogy could have avoided the promise it made to give Liu access to proprietary information and training by terminating Liu’s at-will employment relationship, the promise was illusory and was not consideration supporting Liu’s non-disclosure obligations. Regardless of the fact that Trilogy immediately provided the information and training, at the time the agreement was made, it was not supported by valid consideration. Trilogy argues that the ESA, which incorporated the PIA, was an otherwise enforceable agreement at the time the agreement was made. By the time Liu signed the ESA, they did have a binding contract because Trilogy had accepted Liu’s offer not to disclose by performing their duty to provide training and information. The court notes that even given these facts, a question remains over whether the non-compete agreement was ancillary either to the non-disclosure agreement or to the ESA at the time either one was made. The ESA agreement, which promised to pay Liu for one month’s salary to preserve his immigration status, is not connected to Trilogy’s interest in restraining Liu from competing, so the noncompete clause cannot be said to be ancillary to the ESA. Similarly, the non-disclosure provision, at the time the ESA was signed, was supported by past consideration and therefore not competent consideration for forming a contract on the non-compete provision. The court then discusses Trilogy’s claims of trade secret misappropriation. Trilogy argues that the trial court should have continued the summary judgment hearing to allow additional discovery on its misappropriation claims; its attorney submitted an affidavit saying that certain discovery requests were outstanding. The court rejects the argument because the affidavit doesn’t explain why the additional discovery is needed, as Texas Rule of Civil Procedure 166a(g) requires, nor has it filed a verified motion for continuance. On the merits, Trilogy claims that someone from Accenture, another software developer, sent Liu an e-mail containing approximately 50 documents, in five Zip files, some of which contained trade secrets. The court finds this evidence alone does not raise a fact issue as to whether Liu or Callidus actually used any of the files in its work developing software in competition to the software Trilogy developed for Aetna. The court also finds a lack of support for Trilogy’s argument that Liu’s mere knowledge of the solution Trilogy devised to overcome a particular aspect of the software to serve Aetna was misappropriation of a trade secret. Trilogy points to no evidence that Liu was involved in developing those solutions, much less that he misappropriated Trilogy trade secrets in the process. Instead, Liu’s role was limited merely to identifying the issues presented by Aetna’s business environment. Trade secret status does not automatically attach to any information that a company acquires regarding its customers. “[I]f it did, it would amount to a de fact common law non-compete prohibition,” the court writes. Information generally known and readily available is not protectable. There is no evidence that the difficulties encountered when striving to meet Aetna’s requirements were not readily ascertainable to someone with Liu’s knowledge and skills. Aetna, for example, disclosed much of its inner workings to representatives at Callidus and Accenture. The court does, however, agree with Trilogy’s argument that summary judgment for Liu on its claim that he breached the non-disclosure provision. Liu’s motion for summary judgment did not address this cause of action. Although Liu asserted in regard to the trade secret misappropriation claim the ground that no evidence exists that he disclosed confidential information, Liu did not make this argument in regard to the breach of contract claims, nor did he incorporate by reference the grounds he asserted elsewhere. The court also agrees with Trilogy that summary judgment for Callidus on the issue of whether it tortiously interfered with Liu’s obligations under the non-disclosure provision. OPINION:Pemberton, J.; Kidd, B. A. Smith and Pemberton, JJ.

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