Universal Plant Services, Inc. v. Adams et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNIVERSAL PLANT SERVICES, INC., §
INC., NOW KNOWN AS UNIVERSAL §
PLANT SERVICES, LLC, and §
JONES INDUSTRIAL HOLDINGS, §
INC., §
§
Plaintiffs, §
§
v. § CIVIL ACTION NO. H-22-2364
§
DAVID MEIER; MARCUS KEENAN; §
JEFF WESTER; GREG ADAMS; §
ERIC MONROE; MELINDA BARRY; §
PRECISION MACHINERY §
CONTRACTORS, LLC; CARL ALAN §
SWINDOLL; KELLY LYNN CLARK; §
ALS ASSOCIATES, INC.; §
PRECISION INVESTMENT GROUP, §
LLC; TIGER MANAGEMENT GROUP, §
LLC; and TURNAROUND SERVICES, §
LLC, §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Pending before the court are Defendants’ Memorandum of Law for
Jury Trial (Docket Entry No. 301), in which Defendants assert that
the Texas Uniform Trade Secrets Act (“TUTSA”) preempts most of
Plaintiffs’ common-law tort theories, and Plaintiffs’ Motion for
Clarification of the Court’s February 11, 2026 Minute Entry Order
Excluding Head Start Advantage Damages Evidence (Plaintiffs’ Motion
for Clarification”) (Docket Entry No. 307), in which Plaintiffs
move the court to “vacate the portion of Docket Entry No. 304
excluding head start advantage damages evidence and permit [them]
1
United States District Court
Southern District of Texas
ENTERED
May 27, 2026
Nathan Ochsner, Clerk
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to present such evidence at trial.”1 Also pending before the court
are Plaintiffs’ Response to Defendants’ Preemption Arguments in
Defendants’ Memorandum of Law for Jury Trial (“Plaintiffs’ Response
to Preemption Arguments”) (Docket Entry No. 310), Defendants’ Reply
Brief Regarding TUTSA Preemption (Docket Entry No. 316),
Defendants’ Response to Plaintiffs’ Motion for Clarification
(Docket Entry No. 315), and Plaintiffs’ Reply in Support of Motion
for Clarification of the Court’s February 11, 2026 Minute Entry
Order Excluding Head Start Advantage Damages Evidence (“Plaintiffs’
Reply in Support of Motion for Clarification”) (Docket Entry
No. 317). For the reasons stated below, the court concludes that
TUTSA preempts Plaintiffs’ state law tort claims for breach of
fiduciary duty, knowing participation in breach of fiduciary duty,
tortious interference with contract, and civil conspiracy to the
extent that those claims are premised on alleged misappropriation
of Plaintiffs’ confidential information, the court amends the
February 11, 2026, Hearing Minutes and Order to reflect that
Plaintiffs may not present expert testimony in support of the claim
for head start advantage damages, and denies without prejudice the
request for an order permitting Plaintiffs to elicit testimony on
head start advantage damages from their executives.
1Plaintiffs’ Motion for Clarification, Docket Entry No. 307,
p. 6. See also Id. at 17 (“Plaintiffs respectfully request that
the Court grant this Motion for Clarification, vacate the portion
of the February 11, 2026, Minute Entry Order (Docket Entry No. 304)
excluding head start advantage damages evidence, and enter an order
permitted Plaintiffs to present such evidence at trial.”). Page
numbers for docket entries refer to the pagination inserted at the
top of the page by the court’s electronic filing system, CM/ECF.
2
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I. Factual and Procedural Background
A. Factual Background
Plaintiff, Universal Plant Services, Inc., now known as
Universal Plant Services, LLC and Jones Industrial Holdings, Inc.
(“Plaintiffs” or “UPS”), is an industrial services company.
Plaintiffs allege that Defendants, Alan Swindoll, Kelly Clark, ALS
Associates, Inc. (“ALS”), Turnaround Services, LLC (“Turnaround”),
Tiger Management Group, LLC (“Tiger”) Precision Machinery
Contractors, LLC (“PMC”), Precision Investment Group, LLC
(“Precision”), and former UPS employees Greg Adams, Melinda Barry,
Marcus Keenan, David Meier, Eric Monroe, and Jeff Wester, conspired
to misappropriate Plaintiffs’ confidential information, trade
secrets, and property to form and operate PMC, a direct competitor
offering similar services to the same customers in the same
geographic markets.
B. Procedural Background
This action was initiated on July 15, 2022, against PMC and
former UPS employees Adams, Barry, Keenan, Meier, Monroe, and
Wester for their involvement in the creation of PMC and
misappropriation of confidential information and trade secrets
(Docket Entry No. 1). On November 3, 2023, the court entered a
Memorandum Opinion and Order (Docket Entry No. 179) granting
Plaintiff’s Motion for Leave to File Third Amended Complaint and
3
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adding six defendants: Clark, Swindoll, ALS, Precision, Tiger, and
Turnaround. Plaintiff’s Third Amended Complaint (Docket Entry
No. 180) asserts violations of the federal Defend Trade Secrets
Act, TUTSA, and the Texas Theft Liability Act, as well as common
law claims under Texas law, for breach of contract, breach of
fiduciary duty, knowing participation in breach of fiduciary duty,
tortious interference with a contract, conversion, and civil
conspiracy.
On February 2, 2026, Defendants submitted their Memorandum of
Law for Jury Trial arguing, inter alia, that “TUTSA preempts most
of [Plaintiffs’] common-law tort theories.”2 At Docket Call held
on February 11, 2026, the court ordered the parties to submit
additional briefing on the TUTSA preemption issue.3 Plaintiffs
have since agreed to dismiss claims premised on misappropriation of
trade secrets,4 but argue that other tort claims are not preempted.5
Pursuant to the parties’ stipulations,6 the court has dismissed
(1) claims for breach of fiduciary duty premised on
misappropriation of trade secrets asserted against Adams, Barry,
2Defendants’ Memorandum of Law for Jury Trial, Docket Entry
No. 301, p. 16.
3Hearing Minutes and Order, Docket Entry No. 304, p. 2.
4See Plaintiffs’ Federal Rule of Civil Procedure 41(a)(2)
Motion of Voluntary Dismissal of Certain Caims Without Prejudice,
Docket Entry No. 311.
5Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 7.
6See Joint Rule 41(a)(1)(A)(ii) Stipulation of Partial
Dismissal of Claims (Docket Entry No. 312).
4
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Keenan, Meier, Monroe, and Wester; (2) claims for conversion
asserted against Adams, Barry, Keenan, Meier, Monroe, Wester, and
PMC; and (3) claims for civil conspiracy asserted against Adams,
Barry, Keenan, Meier, Monroe, Wester, and PMC.7
II. TUTSA Preemption
Asserting that the gravamen of most of Plaintiffs’ tort claims
is the alleged misappropriation of trade secrets, Defendants argue
that TUTSA preempts most of Plaintiffs’ claims for breach of
fiduciary duty and knowing participation in breach of fiduciary
duty, Plaintiffs’ claims for tortious interference with contract,
most of Plaintiffs’ claims for conversion, and Plaintiffs’ claims
for civil conspiracy.8 Plaintiffs do not dispute that TUTSA
preempts their claims for breach of fiduciary duty, participation
in breach of fiduciary duty, conversion, and civil conspiracy to
the extent that they are premised on alleged misappropriation of
trade secrets,9 and those claims have all been dismissed by
agreement of the parties.10 However, citing Trinseo Europe GmbH v.
7Partial Order of Dismissal of Certain Claims, Docket Entry
No. 314.
8Defendants’ Memorandum of Law for Jury Trial, Docket Entry
No. 301, pp. 16-22.
9Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, pp. 7-12 (failing to dispute Defendants’ contention that
its claims for conversion are all preempted).
10See Joint Rule 41(a)(1)(A)(ii) Stipulation of Partial
(continued...)
5
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Kellogg Brown & Root, L.L.C., et al., 165 F.4th 399, 422 (5th Cir.
2026), Plaintiffs argue that the tort claims that have not been
voluntarily dismissed are not preempted because they “are not based
on the same alleged conduct as the TUTSA claim[s].”11 Defendants
urge the court to hold that the tort claims premised on
misappropriation of Plaintiffs’ confidential information are also
preempted.12 Defendants explain that
[a]llowing UPS to submit common law tort theories based
on information UPS itself contends is a trade secret is
a recipe for jury confusion. For the common law tort
claims, the jury would have to be instructed to consider
only information that it finds is confidential but not a
trade secret. Furthermore, UPS has no damage theory
based on misappropriation of non-trade secret
confidential information. Its entire damage theory is
built on the premise that the information at issue
constitutes trade secrets. This is reflected in the
report of UPS’s damages expert, [Walter] Bratic. See
Report at ECF No. 244-1.13
A. Applicable Law
TUTSA governs claims for trade secret misappropriation in
Texas. Tex. Civ. Prac. & Rem. Code §§ 134A.001 et seq. TUTSA
10(...continued)
Dismissal of Claims, Docket Entry No. 312, p. 2 (seeking to strike
¶¶ 143-47 of the Complaint), and Partial Order of Dismissal of
Certain Claims, Docket Entry No. 314, p. 2 (dismissing Plaintiff’s
conversion claims).
11Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 7.
12Defendants’ Memorandum of Law for Jury Trial, Docket Entry
No. 301, pp. 17-18.
13Id. at 18.
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defines “misappropriation” as:
(A) acquisition of a trade secret of another by a
person who knows or has reason to know that the
trade secret was acquired by improper means; or
(B) disclosure or use of a trade secret of another
without express or implied consent by a person who:
(i) used improper means to acquire knowledge of
the trade secret;
(ii) at the time of disclosure or use, knew or had
reason to know that the person’s knowledge of
the trade secret was:
(a) derived from or through a person who used
improper means to acquire the trade
secret;
(b) acquired under circumstances giving rise
to a duty to maintain the secrecy of or
limit the use of the trade secret; or
(c) derived from or through a person who owed
a duty to the person seeking relief to
maintain the secrecy of or limit the use
of the trade secret; . . .
Tex. Civ. Prac. & Rem. Code §§ 134A.002(3). See Trinseo, 165 F.4th
at 421 (“TUTSA preempts claims premised on misappropriation of a
trade secret.”).
TUTSA defines “trade secret” to mean “all forms and types of
information” that the owner “has taken reasonable measures . . . to
keep . . . secret,” and which “derives independent economic value,
actual or potential, from not being generally known to, and not
being readily ascertainable through proper means by, another person
who can obtain economic value from the disclosure or use of the
information.” Tex. Civ. Prac. & Rem. Code § 134A.002(6).
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TUTSA’s preemption provision states that
(a) [e]xcept as provided by Subsection (b), this
chapter displaces conflicting tort, restitionary,
and other law of this state providing civil
remedies for misappropriation of a trade secret.
(b) This chapter does not affect:
(1) contractual remedies, whether or not based
upon misappropriation of a trade secret;
(2) other civil remedies that are not based upon
misappropriation of a trade secret; or
(3) criminal remedies, whether or not based upon
misappropriation of a trade secret.
Tex. Civ. Prac. & Rem. Code § 134A.007. Observing that “Texas
intermediate courts have consistently held that a common law claim
is preempted by TUTSA when the gravamen of the claim duplicates a
TUTSA claim,” Trinseo, 165 F.4th at 421, the Fifth Circuit held
that “TUTSA ‘preempts claims that rely on the same facts as a
trade-secret-misappropriation claim.’” Id. at 422 (quoting Coe v.
DNOW LP, 718 S.W.3d 338, 353 (Tex. App. — Houston [14th Dist.]
2025, pet. denied)). The Fifth Circuit explained that
[i]n determining whether a claim is preempted, Texas
courts look to “the substance of the facts alleged rather
than to the way a claim is pleaded.” [Coe, 718 S.W.3d
at] 355. For instance, even where a claim is premised on
“confidential information” rather than trade secrets,
that claim is preempted if “as pleaded” by the
plaintiffs, “the confidential and proprietary information
at issue . . . falls within TUTSA’s definition of a trade
secret.”
Trinseo, 165 F.4th at 422. See Coe, 718 S.W.3d at 353 (“if proof
of some other theory of liability would also prove misappropriation
of a trade secret, then the claim is preempted.”).
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B. Application of the Law to the Facts
1. Plaintiffs’ Claims for Breach of Fiduciary Duty are
Preempted to the Extent They are Premised on Alleged
Misappropriation of Plaintiffs’ Confidential Information
Asserting that Plaintiffs’ claims for breach of fiduciary duty
against its former employees, Adams, Barry, Keenan, Meier, Monroe,
and Wester, fall into one of two categories: (1) misappropriation
of confidential information and trade secrets; and (2) other
conduct, e.g., misappropriation of tangible property, diversion of
UPS customers, failure to perform work obligations, and beginning
employment with PMC before ending employment with UPS, Defendants
argue that “[t]he first category is clearly preempted by TUTSA.”14
“Defendants do not contend that the second category of other
conduct is preempted by TUTSA.”15
Plaintiffs argue that their “confidential information is
entirely separate from [its] trade secrets. Specifically, the
documents at issue are not the same and the claims address distinct
factual allegations supported by distinct specific factual evidence
and expert testimony.”16 Plaintiffs explain that
the instant matter is distinguishable from Trinseo,
because the claims at issue, as UPS’s pleadings and the
record before the court establishes, were not pled “in
the ‘alternative’ and based [] entirely on information
14Id. at 19. See also Defendants’ Reply Brief Regarding TUTSA
Preemption, Docket Entry No. 316, pp. 5-6.
15Defendants’ Reply Brief Regarding TUTSA Preemption, Docket
Entry No. 316, p. 5.
16Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 8.
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that [Plaintiffs] alleged constituted a trade secret.”
Trinseo, 165 F.4th at 422. In fact, Plaintiffs’ Third
Amended Complaint explicitly defines “Confidential
Information” and “Trade Secrets” separately and does not
allege any claim in the alternative (See Docket Entry
No. 180 at p. 2 fns. 1, 2). . . As such, these claims are
not preempted by TUTSA as a matter of law.17
Plaintiffs argue that this case is distinguishable from
Trinseo because their claims for misappropriation of confidential
information and misappropriation of trade secrets are not based
entirely on information that they allege constitute trade secrets,
but review of Plaintiffs’ pleadings and the report of their expert,
Bratic, persuade the court that both Plaintiffs’ claims for
misappropriation of confidential information and trade secrets are,
in fact, premised entirely on information that Plaintiffs allege
constitute trade secrets.
In an attempt to distinguish their confidential information
from their trade secrets, Plaintiffs refer the court to notes 1 and
2 in their Third Amended Complaint. Note 1 says that
“Confidential Information” shall mean, per the Non-
Disclosure Agreements executed by each of the Individual
Defendants, any data, materials, products, tooling,
technological data, computer programs, specifications,
manuals, business plans, client performance, labor
relation, marketing plans, client lists, financial
information, billing rates, pending projects, outage
workbooks, proposals, and other information obtained from
[UPS] or other information which relates to past,
present, or future business activities of [UPS] or its
customers.18
17Id. at 8-9.
18Plaintiff’s Third Amended Complaint, Docket Entry No. 180,
p. 2 n.1.
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In pertinent part note 2 says that
“Trade Secrets” shall mean: (1) all forms and types of
[UPS] information . . .; (2) UPS business information and
business methodologies; (3) categories to include UPS
business information, methodologies, and customer lists:
billing rates, customer lists, financial data, pricing,
and service strategies; and (4) the aggregation of the
categories of UPS’s confidential information that
includes business information, methodologies, and
customer lists: proposals, contracts, purchase orders,
and customer contracts.19
Because Plaintiffs’ definition of “confidential information”
expressly includes “information which relates to past, present, or
future business activities of [UPS] or its customers,”20 and because
Plaintiffs’ definition of “trade secrets” expressly includes “all
forms and types of [UPS] information,” and “the aggregation of the
categories of UPS’s confidential information that includes business
information,” Plaintiffs’ definition of their “trade secrets”
subsumes their “confidential information.” This conclusion finds
support in the report of Plaintiffs’ expert, Bratic. The first
sentence of Bratic’s damages analysis states that he was “asked to
assume that the UPS Trade Secrets and Confidential Information are,
in fact, trade secrets.”21
19Id. n. 2.
20Id. n.1.
21Amended Bratic Report, Docket Entry No. 244-1, p. 18 ¶ 38.
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Despite Plaintiffs’ assertion that their “confidential
information is entirely separate from [their] trade secrets,”22
neither Plaintiffs’ pleadings nor Plaintiffs’ briefing discuss how
their allegedly misappropriated “confidential information” is to be
distinguished from their allegedly misappropriated “trade secrets.”
The court concludes, therefore, that as pled, Plaintiffs’ claims
for misappropriation of confidential information and trade secrets
are based entirely on information that Plaintiffs allege constitute
“trade secrets.” Plaintiffs’ claims for breach of fiduciary duty
based an the alleged misappropriation of confidential information
asserted against former employees, Adams, Barry, Keenan, Meier,
Monroe, and Wester, are therefore preempted by TUTSA because “TUTSA
preempts claims that rely on the same facts as a trade-secret-
misappropriation claim.” Trinseo, 165 F.4th at 422.
2. Plaintiffs’ Claims for Knowing Participation in Breach of
Fiduciary Duty are Preempted to the Extent that They are
Premised on Alleged Misappropriation of Plaintiffs’
Confidential Information
Defendants argue that Plaintiffs’ claims for knowing
participation in breach of fiduciary duty are preempted by TUTSA to
the extent that they are based on alleged participation in
misappropriation of trade secrets for the same reasons that
22Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 8.
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Plaintiffs’ claims for breach of fiduciary duty are preempted.23
Plaintiffs respond that because they have asserted claims for
breach of fiduciary duty that “are not based on the
misappropriation of trade secrets, no part of the claims for
knowing participation in a breach of fiduciary duty is preempted.”24
Plaintiffs’ claims for knowing participation in breach of
fiduciary duty are asserted against four defendants: ALS, Precision
PMC, and Tiger.25 In pertinent part Plaintiffs allege that
[t]he Individual Defendants breached fiduciary duties to
UPS, including by disclosing UPS’s Confidential
Information and Trade Secrets to PMC, accepting offers of
employment at PMC before leaving UPS, and assisting in
the diversion of customers from UPS to PMC.26
“Knowing participation in breach of fiduciary duty is a
derivative claim, requiring an underlying breach of fiduciary duty,
in which the defendant knowingly participates.” Dockside Marine,
L.L.C. v. Walker, No. 09-23-00047-CV, 2024 WL 3220404, at *8 (Tex.
App.—Beaumont June 27, 2024, no pet.) (quoting Straehla v. AL
Global Services, LLC, 619 S.W.3d 795, 804 (Tex. App.—San Antonio
2020, pet. denied)). Because the court has already concluded that
23Defendants’ Memorandum of Law for Jury Trial, Docket Entry
No. 301, p. 19. See also Defendants’ Reply Brief Regarding TUTSA
Preemption, Docket Entry No. 316, pp. 6-7.
24Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 10.
25Plaintiff’s Third Amended Complaint, Docket Entry No. 180,
p. 32.
26Id. at ¶ 115.
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Plaintiffs’ claims for breach of fiduciary duty based an the
alleged misappropriation of confidential information asserted
against former employees, Adams, Barry, Keenan, Meier, Monroe, and
Wester, are preempted, Plaintiff’s claims for knowing participation
in those alleged breaches of fiduciary duty are also preempted.
3. Plaintiffs’ Claims for Tortious Interference with
Contract are Preempted
Citing ¶¶ 121-22 of Plaintiff’s Third Amended Complaint,
Defendants argue that Plaintiffs’ claims for tortious interference
with contract are preempted because they are expressly based on
allegations that defendants ALS, Precision, PMC, and Tiger
participated in the misappropriation of Plaintiffs’ trade secrets.27
These paragraphs of the Complaint allege:
121. ALS, PMC, Precision, and Tiger are willfully and
intentionally interfering with the UPS
Confidentiality/Non-Disclosure Agreements by
employing Adams, Barry, Keenan, Meier, Monroe,
Rivera, Villalpando, and Wester in positions in
which they are disclosing and will continue to
disclose and/or use UPS’s Confidential Information,
Trade Secrets, or property.
122. ALS, PMC, Precision, and Tiger are willfully and
intentionally interfering with the UPS
Confidentiality/Non-Disclosure Agreements by using
UPS’s Confidential Information, Trade Secrets, or
property to unlawfully compete with UPS. The
fundamental basis of the creation of PMC, which
includes ALS, Precision, and Tiger, is to use UPS’s
27Defendants’ Memorandum of Law for Jury Trial, Docket Entry
No. 301, p. 20. See also Defendants’ Reply Brief Regarding TUTSA
Preemption, Docket Entry No. 316, pp. 7-8.
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Confidential Information, Trade Secrets, and
property to directly compete with UPS in the
marketplace.28
Citing Texas Civil Practice and Remedies Code
§ 134A.007(b)(1), Plaintiffs respond that
[i]n this case, [their] claim is that ALS, PMC,
Precision, and Tiger intentionally interfered with the
UPS/Confidentiality/Non-Disclosure Agreements. As the
initial proposed unified jury charge demonstrates, the
underlying claims and the damages associated with those
claims arise solely from those contracts. TUTSA cannot
preempt [its] claims for tortious interference with
contract . . . as a matter of law because [those claims]
sounds only in contract.29
Quoting S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA,
315 F.3d 533, 538 (5th Cir. 2003), Plaintiffs argue that “in Texas,
‘if damages arise solely from the loss of the contract benefit, the
claim sounds only in contract.’”30
Section 134A.006(b)(1) of the Texas Civil Practices and
Remedies Code states that “[t]his chapter does not affect . . .
contractual remedies, whether or not based upon misappropriation of
a trade secret.” Plaintiffs’ reliance on S&W Enterprises, 315 F.3d
at 538, to argue that their claims for tortious interference are
not preempted by TUTSA is misplaced because TUTSA preemption was
not at issue in that case. At issue was whether a party’s refusal
28Plaintiff’s Third Amended Complaint, Docket Entry No. 180,
p. 33.
29Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 11.
30Id.
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to consent to assignment of a contract could be an “independent
tort.” Id. at 537. Citing Texas cases on the economic loss rule,
which provides that a party to a contract cannot pursue a tort
claim for loss of the benefit of the contract, the Fifth Circuit
held that refusal to consent to assignment of a contract could not
be an independent tort. Id. Although the basic measure of damages
for tortious interference with an existing contract may be the same
as the measure of damages for breach of the contract interfered
with in order to put the plaintiff in the same economic position it
would have been in had the contract been performed, see American
National Petroleum Co. v. Transcontinental Gas Pipe Line Corp., 798
S.W.2d 274, 278 (Tex. 1990), the “majority position in Texas courts
appears to be that tortious interference with contract is not a
contractual remedy and that the TUTSA can therefore preempt such
claims.” El Paso Disposal, LP v. Ecube Labs Co., 766 F. Supp. 3d
692, 721 (W.D. Tex. 2025) (collecting cases). The rationale for the
majority position is that Texas “courts generally view tortious
interference with contract under Texas common law as a ‘tort claim
requiring the existence of a contract as an element,’ as opposed to
as a ‘claim in contract’ itself.” Id. (quoting Avenu Insights &
Analytics, LLC v. Azavar Government Solutions, Inc., No. 6:18-cv-
00422-JDK-KNM, 2023 WL 3035363, at *4 (E.D. Tex. February 24,
2023)). See also Wilkerson v. University of North Texas By and
Through Board of Regents, 878 F.3d 147, 162 (5th Cir. 2017)
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(“tortious interference (as its name suggests) is a tort”).
Because Plaintiffs have failed to cite any case holding that a
tortious interference claim is a contract claim for purposes of
TUTSA preemption, the court is not persuaded that § 134A.006(b)(1)
of the Texas Civil Practices and Remedies Code precludes preemption
of Plaintiffs’ claims for tortious interference with contract.
Plaintiffs’ claims for tortious interference with contract are
premised on allegations that Defendants intentionally interfered
with confidentiality agreements UPS had with its employees “by
using UPS’s Confidential Information, Trade Secrets, or property to
unlawfully compete with [them].”31 Proof of Plaintiffs’ claims for
tortious interference with contract would also prove
misappropriation of a trade secret. These claims are therefore
preempted. See Trinseo, 165 F.4th at 422 (“TUTSA ‘preempts claims
that rely on the same facts as a trade-secret-misappropriation
claim’”). See also Coe, 718 S.W.3d at 353 (“if proof of some other
theory of liability would also prove misappropriation of a trade
secret, then the claim is preempted”).
4. Plaintiffs’ Claims for Civil Conspiracy are Preempted
Citing ¶ 153 of Plaintiffs’ Third Amended Complaint,
Defendants argue that Plaintiffs’ claims for civil conspiracy
asserted against all the defendants are preempted because they are
31Plaintiff’s Third Amended Complaint, Docket Entry No. 180,
p. 33 ¶ 122.
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expressly based on an alleged conspiracy to “steal and
misappropriate UPS’s [c]onfidential [i]nformation and [t]rade
[s]ecrets.”32 Paragraph 153 of Plaintiffs’ Third Amended Complaint
alleges that all “Defendants, in combination with one another,
conspired to intentionally and unlawfully steal and misappropriate
UPS’s Confidential Information and Trade Secrets.”33 Since
Defendants filed their Memorandum of Law for Jury Trial, the
parties have entered an agreed stipulation regarding the conversion
claims asserted against Defendants Adams, Barry, Keenan, Meier,
Monroe, Wester, and PMC,34 and the court has entered an Order
dismissing those claims.35
Civil conspiracy is a theory of derivative liability. Agar
Corp., Inc. v. Electro Circuits International, LLC, 580 S.W.3d 136,
140-42 (Tex. 2019). Therefore, proof of an underlying tort is
required to show a civil conspiracy. Id. See also Tilton v.
Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Acknowledging that
“[u]nder Texas law, ‘a defendant’s liability for conspiracy depends
on participation in some underlying tort for which the plaintiff
32Defendants’ Memorandum of Law for Jury Trial, Docket Entry
No. 301, p. 21. See also Defendants’ Reply Brief Regarding TUTSA
Preemption, Docket Entry No. 316, pp. 8-9.
33Plaintiff’s Third Amended Complaint, Docket Entry No. 180,
p. 38 ¶ 153.
34See Joint Rule 41(a)(1)(A)(ii) Stipulation of Partial
Dismissal of Claims, Docket Entry No. 312, p. 2.
35See Partial Order of Dismissal of Certain Claims, Docket
Entry No. 314, p. 2.
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seeks to hold at least one of the named defendants liable,’”36
Plaintiffs state that “consistent with that requirement, [they]
seek to submit a conspiracy claim to the jury against only
defendants Turnaround Services, LLC, Clark, and Swindoll.”37
Plaintiffs also state that
[t]he conspiracy claim rests on the independent
underlying torts of breach of fiduciary [duty] by the
former UPS employees. . . . [T]hese torts do not depend
on the existence of a trade secret and therefore support
a non-pre-empted conspiracy claim, or the alternative
derivative claim of knowing participation in a breach of
fiduciary duty, and therefore the conspiracy claim
against Clark, Swindoll, and Turnaround Services, LLC is
not preempted by another cause of action.38
Although Plaintiffs argue that their civil conspiracy claims
rest on the underlying torts of breach of fiduciary duty or
participation in breach of fiduciary duty, the civil conspiracy
allegations in Plaintiffs’ Third Amended Complaint do not mention
breach of fiduciary duty or participation in breach of fiduciary
duty, but instead, expressly allege that “Defendants . . .
conspired to intentionally and unlawfully steal and misappropriate
UPS’s Confidential Information and Trade Secrets.”39 Plaintiffs’
civil conspiracy claims are preempted because as alleged they rely
36Plaintiffs’ Response to Preemption Arguments, Docket Entry
No. 310, p. 11.
37Id.
38Id. at 11-12.
39Plaintiff’s Third Amended Complaint, Docket Entry No. 180,
p. 38 ¶ 153.
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on the same facts as Plaintiff’s trade-secret misappropriation
claims. Trinseo, 165 F.4th at 422 (“TUTSA preempts claims that
rely on the same facts as a trade-secret-misappropriation claim”).
See also Coe, 718 S.W.3d at 353 (“[I]f proof of some other theory
of liability would also prove misappropriation of a trade secret,
then the claim is preempted.”).
III. Plaintiffs’ Motion for Clarification
On February 11, 2026, the court held a hearing at which it
ruled, inter alia, that “Plaintiff will not be allowed to present
evidence on Head Start Advantage damages,” and that Plaintiffs’
expert witness, “Bratic[,] will have thirty (30) days to supplement
his report on the following three damages theories: lost profits,
disgorgement, and avoided development costs.”40 Asserting that as
worded, the minute entry order “appears to prohibit Plaintiffs from
presenting any evidence on head start advantage damages at trial,”41
and that they “should be given the opportunity to present their
head start advantage theory through fact witnesses,”42 Plaintiffs
move the court to “vacate the portion of Docket Entry No. 304
excluding head start advantage damages evidence and permit [them]
40Hearing Minutes and Order, Docket Entry No. 304, p. 1.
41Plaintiffs’ Motion for Clarification, Docket Entry No. 307,
p. 5.
42Id. at 6.
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to present such evidence at trial.”43 Plaintiffs explain that
Magistrate Judge Bray issued a Memorandum and
Recommendation (”M&R”) (Docket Entry No. 284) in which he
held only that Plaintiffs’ expert, Walter Bratic, could
not offer a head start advantage theory of damages as
part of his expected testimony at trial, which the Court
adopted. (Docket Entry No. 289.) Plaintiffs objected to
this portion of the M&R and continue to object to
Bratic’s testimony being so limited, as the Court’s
ruling deprives Plaintiffs of a core, legally recognized
remedy for their unjust enrichment claims under both
state and federal trade secret law.
However, even without Mr. Bratic, Plaintiffs’ lay
witnesses — specifically the executives who helped build
UPS — can and should be permitted to testify about the
time and effort that went into creating the company, time
and effort the Defendants avoided through their
misdeeds. In other words, at a minimum, Plaintiffs
should be given the opportunity to present their head
start advantage theory through fact witnesses.44
Defendants respond that
UPS’s Motion for “Clarification” . . . is really asking
the Court to do two things. First, UPS wants the Court
to change its ruling excluding Bratic’s opinion on “head
start advantage.” This issue was already extensively
briefed, and UPS identifies no new reason for the Court
to change its ruling. . .
Second, UPS is asking the Court for an advance
advisory ruling on whether four of its executives can
testify to “lay witness” opinions on Precision’s
purported “head start advantage.” This request should be
rejected as premature; the Court can rule during trial
43Id. See also Id. at 17 (“Plaintiffs respectfully request
that the Court grant this Motion for Clarification, vacate the
portion of the February 11, 2026, Minute Entry Order (Docket Entry
No. 304) excluding head start advantage damages evidence, and enter
an order permitting Plaintiffs to present such evidence at
trial.”).
44Id. at 5-6.
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when Defendants object. . .45
Plaintiffs reply that although they believe Bratic’s opinions
are sound and based on facts and data, they are not asking the
court to reconsider prior rulings barring his testimony on head
start advantage damages. Asserting that a jury may synthesize a
rational head start damages model from lay testimony, Plaintiffs
seek an order pursuant to Federal Rule of Evidence 701 allowing
their executives to offer lay testimony on development timelines
concerning their own company’s operations.46
The Court’s February 11, 2026, ruling that “Plaintiff[s] will
not be allowed to present evidence on Head Start Advantage
damages,” related only to the testimony of expert witness, Bratic.
Therefore, the court will vacate the second paragraph on the first
page of the February 11, 2026, Hearing Minutes and Order, and amend
that Order to state that Plaintiff will not be allowed to present
expert testimony from Mr. Bratic on Head Start Advantage Damages.
However, because the court’s practice is to rule on the
admissibility of witness testimony during trial, and because
Defendants cogently argue that the opinions of Plaintiffs’
executives are not lay witness opinions but, instead, expert
45Defendants’ Response to Plaintiffs’ Motion for Clarification,
Docket Entry No. 315, p. 1.
46Plaintiffs’ Reply in Support of Motion for Clarification,
Docket Entry No. 317, pp. 3-6.
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opinions,47 Plaintiffs’ request for an order permitting them to
elicit testimony at trial from their executives on head start
advantage damages will be denied without prejudice. Before
Plaintiffs’ executives will be allowed to testify at trial on head
start advantage damages, Plaintiffs must satisfy the court that
their testimony is admissible under Federal Rule of Evidence 701.
IV. Conclusions and Order
For the reasons stated in § II.B.1, above, Plaintiffs’ claims
for breach of fiduciary duty premised on alleged misappropriation
of confidential information asserted against defendants Adams,
Barry, Keenan, Meier, Monroe, and Wester, are PREEMPTED.
For the reasons stated in § II.B.2, above, Plaintiffs’ claims
for knowing participation in breach of fiduciary duty based on
alleged disclosure of confidential information asserted against
defendants ALS, Precision, PMC, and Tiger, are PREEMPTED.
For the reasons stated in § II.B.3, above, Plaintiffs’ claims
for tortious interference with contract asserted against defendants
ALS, Precision, PMC, and Tiger, are PREEMPTED.
For the reasons stated in § II.B.4, above, Plaintiffs’ claims
for civil conspiracy asserted against Clark, Swindoll, Precision,
ALS, Tiger, and Turnaround Services are PREEMPTED.
47Defendants’ Response to Plaintiffs’ Motion for Clarification,
Docket Entry No. 315, pp. 3-7.
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For the reasons stated in § III, above, the second paragraph
on the first page of the February 11, 2026, Hearing Minutes and
Order, Docket Entry No. 304, is VACATED and that order is AMENDED
to state that Plaintiffs will not be allowed to present expert
testimony from Mr. Bratic on the theory of Head Start Advantage
Damages. Plaintiffs’ request for an order permitting them to
elicit testimony at trial from their executives on head start
advantage damages is DENIED WITHOUT PREJUDICE. Plaintiffs’ Motion
for Clarification of the Court’s February 11, 2026 Minute Entry
Order Excluding Head Start Advantage Damages Evidence, Docket Entry
No. 307, is therefore GRANTED in PART and DENIED in PART.
Since the court held Docket Call on February 11, 2026, the
causes of action in this case have been greatly narrowed. Although
the causes of action in this case have been narrowed, the court has
already set a number of cases for trial and will not be able to try
this case before late fall at the earliest. Moreover, Plaintiffs
seek various forms of relief that cannot be awarded in a jury
trial. Therefore, the court will refer this case to the Honorable
Nancy F. Atlas (ret.) for mediation. If Judge Atlas declares an
impasse, the court will enter an order setting a new date for
Docket Call. Because Judge Atlas will not be able to mediate this
case before late July, the parties are ORDERED to submit by the
close of business on Friday, June 26, 2026, an Amended Joint
Pretrial Order with Proposed Jury Instructions and Questions
revised to reflect the court’s rulings and narrowing of the
disagreements on the remaining issues.
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As 	this 	case 	involves 	a 	number 	of 	claims 	asserted 	against 	a
number 	of 	parties, 	the 	court 	has 	prepared a 	summary 	chart 	showing
each claim, 	the parties 	against whom each claim has been asserted,
and 	whether 	each 	claim 	has 	been 	resolved 	or 	remains 	live. 	The
summary chart is attached to the end of this Memorandum Opinion and
Order.
SIGNED 	at 	Houston, 	Texas, 	on 	this 	27th 	day 	of May, 	2026.
SIM LAKE
SENIOR UNITED 	STATES 	DISTRICT 	JUDGE
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UPS’S CLAIMS
(Plaintiff’s Third Amended Complaint, Docket Entry No. 180, filed on November 3, 2023)
Causes of Action
De fendants
Greg
Adams
Melinda
Barry
Kelly
Lynn
Clark
Marcus
Keenan
David
Meier
Eric
Monroe
Carl
Alan
Swindoll
Jeff
Wester
ALS
Assoc.
Precision
Invst.
Group
Precision
Mach.
Conts.
Tiger
Mngmt.
Group
Turnaround
Services
1 Permanent Injunction Live Live Live Live Live Live Live Live Live Live Live Live Live
2 Breach of Contract Live Live Live Live Live Live
3 Breach of Fiduciary Duty
Misappropriation of Trade Secrets D/A D/A D/A D/A D/A D/A
Misappropriation of Conf. Info. Pre-E Pre-E Pre-E Pre-E Pre-E Pre-E
Misappropriation of Property Live Live Live Live Live Live
Diverting of Customers Live Live
Failure to Perform Work Obligations Live
Beginning Employment with PMC
Prior to Leaving UPS
Live Live Live Live
4 Knowing Participation in Breach
of Fiduciary Duty
Disclosing Confidential Information Pre-E Pre-E Pre-E Pre-E
Diverting Customers Live Live Live Live
Beginning Employment with PMC
Prior to Leaving UPS
Live Live Live Live
5 Tortious Interference w/ Contract Pre-E Pre-E Pre-E Pre-E
6 Actual and Threatened
Misappropriation of Trade Secrets
-Defend Trade Secrets Act
Live Live Live Live Live Live Live
7 Actual and Threatened
Misappropriation of Trade Secrets
- TUTSA
Live Live Live Live Live Live Live
8 Conversion D/A D/A D/A D/A D/A D/A D/A
9 Texas Theft Liability Act Live Live Live Live Live Live Live
10 Civil Conspiracy D/A D/A Pre-E D/A D/A D/A Pre-E D/A Pre-E Pre-E D/A Pre-E Pre-E
Abbreviations:
D/A—Dismissed by Agreement, Docket Entry Nos. 312 and 314; Pre-E—Preempted by TUTSA, May 27, 2026, Memorandum Opinion and Order
Case 4:22-cv-02364 Document 318 Filed 05/27/26 in TXSD Page 26 of 26