Gaskamp v. WSP USA, Inc.

• Decision Date: 20 February 2020
• Docket Number: NO. 01-18-00079-CV,01-18-00079-CV
• Citation: 596 S.W.3d 457
• Parties: Derek GASKAMP, Jonathan Miller, and Andrew Hunter, Appellants v. WSP USA, INC., WSP USA Buildings, Inc. and WSP USA Administration, Inc., Appellees
• Court: Texas Court of Appeals

596 S.W.3d 457

Derek GASKAMP, Jonathan Miller, and Andrew Hunter, Appellants

v.WSP USA, INC., WSP USA Buildings, Inc. and WSP USA Administration, Inc., Appellees

NO. 01-18-00079-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 20, 2020

G. Scott Fiddler, Andrew W. Reed, Fiddler & Associates, P.C., 1004 Congress, 3rd Fl., Houston, TX 77002, for Appellants.

Bradley E. Chambers, Kimberly A. Chojnacki, Baker Donelson, 1301 McKinney St., Ste. 3700, Houston, TX 77010, for Appellees.

Before the court en banc.

OPINION ON EN BANC RECONSIDERATION

Richard Hightower, Justice

Derek Gaskamp, Jonathan Miller, and Andrew Hunter have filed a motion for en banc reconsideration of this Court's December 20, 2018 opinion and judgment. See TEX. R. APP. P. 49.7. The Court grants en banc reconsideration. See TEX. R. APP. P. 41.2, 49.7. We withdraw our opinion and judgment of December 20, 2018, and we substitute this opinion and judgment in their stead.

WSP USA Administration, Inc. ("WSP Administration"), WSP USA Buildings, Inc. ("WSP Buildings"), and WSP USA, Inc. (collectively, "WSP") sued former employees Derek Gaskamp, Jonathan Miller, and Andrew Hunter for conduct related to their alleged misappropriation of WSP's trade secrets and confidential information. Gaskamp, Miller, and Hunter filed a motion to dismiss WSP's claims pursuant to the Texas Citizens' Participation Act ("TCPA").¹ The trial court denied the motion, and Gaskamp, Miller, and Hunter filed this interlocutory appeal, raising three issues challenging the trial court's denial.²

We affirm.

Background

In early October 2017, WSP filed suit against Infinity MEP, a limited liability company, and against WSP's former employees, Derek Gaskamp, Jonathan Miller, Andrew Hunter, and David Sinz.³ A week later, WSP filed its First Amended Petition. The amended petition described WSP as "a leader in civil engineering, fire protection and risk, bridge engineering, analysis and strategy, construction design, environment and sustainability, and ... electrical, IT, telecommunications, automation, and HVAC systems[.]" The petition averred that WSP had "developed several sophisticated, challenging, and substantial projects for clients that include hospitals, universities, corporations, hotels, and other large-scale commercial and residential facilities."

The petition alleged that David Sinz had been an office manager for one of WSP's Houston offices. Sinz's duties included "developing business, contacts, and opportunities for WSP" and "delegat[ing] the work to engineers in the office." Sinz resigned from WSP in late April 2017. WSP stated that, a couple weeks before his resignation, Sinz founded Infinity MEP, a business providing "mechanical, electrical, plumbing, fire protection, commissioning, and low voltage/security/IT services." WSP averred that these "are the very same services provided by WSP."

After Sinz's resignation, Gaskamp, Miller, and Hunter also resigned from WSP. They joined Sinz at Infinity. WSP stated that "Sinz is the managing member and president of Infinity MEP, Gaskamp is the associate principal of Infinity MEP, and Miller is the principal of Infinity MEP. Hunter is an Infinity MEP employee."

After the employees resigned, WSP learned that Infinity's website identified 14 different "featured projects," which Infinity represented were "from [Infinity] staffs' previous career at WSP and other firms." By posting the information on its website, WSP alleged that Infinity was "attempting to leverage WSP's successful projects and WSP's association with high-profile clients—without WSP's consent—into business opportunities, relationships, and contracts of its own."

WSP then conducted an "an internal investigation and a forensic analysis" of the hard drives on Sinz's, Gaskamp's, Miller's, and Hunter's computers "to determine whether ... they had taken any trade secret, confidential, or proprietary information." WSP claimed that the analysis revealed that "seven USB devices were plugged into Sinz's WSP-issued computer between January and April 2017, none of which were WSP-issued devices." WSP noted that the last USB device had been connected to Sinz's hard drive after Sinz had registered Infinity with the Texas Secretary of State.

The investigation revealed that, the afternoon before he had resigned, Sinz had accessed a folder on the computer titled "Potential Projects." The folder contained "files, data, and information regarding projects and customers that WSP is actively pursuing." WSP claimed that "Sinz was retrieving information about prospective customers—without WSP's consent—in order to use it to Infinity, Sinz, Gaskamp, Miller, and Hunter's advantage and in unfair competition with WSP."

WSP stated that its forensic analysis also revealed that, not long before he resigned, Sinz had opened 14 different "project files for projects long-since completed or otherwise inactive and, for most of them, projects with which Sinz had no involvement." WSP claimed that "[t]he folders include customer information, pricing data, and the project Revit files, among other data and information." WSP explained that "Revit is an electronic design software that WSP uses to create architectural designs embellished with its proprietary mechanical, electrical, and plumbing standard details, and any other project requirements per customer specifications."

WSP averred that "the Revit file for each project incorporates WSP's proprietary approach to these services that make it a leader in the field." WSP claimed that was the reason it "protects its Revit files as trade secret, proprietary, and confidential information." It asserted that "unauthorized access to and use of Revit files allows competitors to capitalize on WSP's cache of expertise as competitors can use WSP's Revit data to create as-built drawings and renderings for customers, without the burden of time, expenses, and technical knowhow or experience."

WSP also alleged that Sinz had posted information to Infinity's website to demonstrate Infinity's qualifications "to engage in work identical to that comprising the core of WSP's business." WSP asserted that "Sinz also accessed files relating to projects between WSP and its current and potential clients ... including confidential and proprietary data relating to those projects." WSP claimed that "Sinz also publicly used the information to his, Gaskamp, Miller, Hunter, and Infinity MEP's benefit, advertising the projects as evidence of Infinity's ‘experience’ and ostensibly to attract clients."

WSP further alleged that its internal investigation "showed [the former employees] engaged in off-book projects with WSP resources, in contravention of their fiduciary duties to WSP and the ethical rules applicable to professional engineers." WSP asserted that the "internal investigation also determined that Sinz, Gaskamp, Miller, and Hunter ha[d] interfered with WSP's current contractual relations and have stolen funds from WSP."

Based on its factual allegations, WSP asserted common law and statutory causes of action against the four former employees, including a claim based on the Texas Uniform Trade Secrets Act ("TUTSA").⁴ WSP maintained that the former employees violated TUTSA by using and disclosing WSP's "valuable trade secret, proprietary, and confidential information in competition with WSP" for the former employees' "own financial gain at Infinity MEP." WSP also claimed that former employees had violated the Texas Uniform Fraudulent Transfer Act ("TUFTA").⁵ And WSP alleged that the former employees had fraudulently transferred WSP's trade secret, proprietary, and confidential information to Infinity.

In addition, WSP asserted common-law causes of action against the former employees and against Infinity. Against the former employees, WSP brought claims for breach of loyalty, breach of fiduciary duty, tortious interference with existing contracts and prospective business relations, unjust enrichment, unfair competition, and civil conspiracy.

WSP claimed that the former employees had breached their duty of loyalty "by purposefully obtaining, disclosing, and using the trade secret, proprietary, and confidential information of WSP to establish a competing engineering firm, all while still employed by WSP[.]" WSP asserted that the former employees had breached their fiduciary duties by using and disclosing WSP's confidential and trade secret information to their benefit and to WSP's detriment. With respect to tortious interference with existing contracts, WSP alleged that the former employees had "induced" parties with whom WSP had contracts "to reduce" their business with WSP. WSP also alleged that the former employees' "taking, sharing, and use of WSP's confidential, proprietary, and trade secret information has enabled [the former employees] to purposefully interfere with these prospective contracts and business relationships." WSP further claimed that the former employees' improper conduct had unjustly enriched them and constituted unfair competition.

To support its civil conspiracy claim, WSP alleged that the former employees had "act[ed] in collusion" (1) to "misappropriate WSP's trade secrets, proprietary, and confidential information;" (2) to "fraudulently transfer assets and WSP's trade secrets, proprietary, and confidential information"; (3) to "tortiously interfere with WSP's existing contracts and prospective business relationships;" and (4) "to engage in unfair competition with WSP." WSP also alleged that the former employees had "associated together through a meeting of their minds and for a common purpose of engaging in a course of conduct, and as an ongoing and continuing organization or unit, to conduct the unlawful and tortious conduct[.]" WSP alleged that the former employees had

secretly conspired among themselves, and possibly with others currently unknown to WSP, to devise and implement wrongful and unlawful schemes to misappropriate WSP's trade secrets, proprietary,

...