Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 134 of 139 judgment record that the defendants’ competition against Rimkus, use of Rimkus’s business information, or solicitation of Rimkus clients resulted in that client giving business to the defendants that it would otherwise have given to Rimkus. Summary judgment is granted dismissing Rimkus’s claim for tortious interference with prospective bubusiness relations. 6. Unfair Competition and Civil Conspiracy Civil conspiracy is defined as “a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means.” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996); Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex. 1968). “Unfair competition under Texas law ‘is the umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters.’” Taylor Publ’g Co. v. Jostens, Inc., 216 F.3d 465, 486 (5th Cir. 2000) (quoting Am. Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 14 (5th Cir.1974)). This tort requires a plaintiff to show that the defendants engaged in an illegal act that interfered with the plaintiff’s ability to conduct its business. Id. “Although the illegal act need not necessarily violate criminal law, it must at least be an independent tort.” Id. The defendants argue that Rimkus’s claims for unfair competition and civil conspiracy fail as a matter of law because there is no underlying tort liability. Unfair competition and civil conspiracy are derivative torts. See Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir. 2007) (civil conspiracy); Taylor Publ’g Co., 216 F.3d at 486 (unfair competition). Because Rimkus’s claim for misappropriation of trade secrets survives 134
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 135 of 139 summary judgment, the defendants’ argument is moot. The defendants also argue that the civil conspiracy claim fails because “there is no evidence of any collusion or agreement between Mr. Cammarata, Mr. Bell and/or U.S. Forensic.” (Docket Entry No. 309-2 at 61). This argument is unpersuasive. The record raises fact issues as to whether the defendants agreed to take confidential information from Rimkus to use on behalf of U.S. Forensic. Summary judgment is denied on the conspiracy and unfair competition claims. VI. The Cross-Motions for Summary Judgment on the Defendants’ Counterclaims for Attorneys’ Fees Cammarata and Bell counterclaimed for attorneys’ fees under § 15.51 of the Texas Business and Commerce Code. See TEX. BUS. & COM. CODE § 15.51(c). Under this provision, a court may award costs and attorneys’ fees incurred by an employee in defending an action to enforce covenants not to compete and covenants not to solicit clients if: (a) (b) (c) (d) the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services; the employer knew, at the time the agreement was executed, that the agreement did not contain reasonable limitations as to time, geographical area, and scope of activity to be restrained; the limitations were unreasonable; and the employer sought to enforce the agreement to a greater extent than necessary to protect its goodwill or business interests. See id. Rimkus has moved for summary judgment on both counterclaims. Cammarata has also moved for summary judgment on his counterclaim for attorneys’ fees. 135
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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