Publisher’s note:  Last week, Odessa Headlines published a story about the verdict in a lawsuit brought by Distribution Now (DNOW) against Odessan Toby Eoff and others.  When news of the verdict broke we were, quite frankly, surprised as there had been no local information regarding the case.  In our initial investigation, we obtained the bulk of the information we published from the winning law firm, AZA Law.

After publication, some locals familiar with the case stated that our story was off the mark.  Because we always want to get it right, we started to dig a little deeper to see if our story had indeed been off target and we were able to interview Eoff who also sent us a press release from his law firm.  Based on the additional information provided and Eoff’s statements we felt it was important to take a second look at the facts of this case and the jury’s findings.

In the original information provided by AZA Law in the DNOW/Eoff lawsuit, the verdict was described as being “nearly $9 million.” Originally, DNOW had asked for $42 million in damages but in fact, the jury only awarded $1.7 million for a violation of the Texas Uniform Trade Secret Act (TUTSA).  

Also, not made clear in the AZA information was the fact the verdict apportioned the bulk of the responsibility for the damages on a party that had settled with DNOW before trial.  Eoff’s total responsibility was 1 percent which, according to Eoff, equates to $10,100. 

In fact, the $9 million dollar judgment number heralded by the case victors was based on an expectation they will also recover almost $7 million in attorney’s fees, an issue that has not yet been resolved by the trial judge.

One of the central claims made in the case was that Eoff and the other 12 individuals in the case had stolen or misappropriated a massive amount of confidential DNOW information.  

During our interview, Eoff stated that he was accused of only taking a few documents when he left DNOW.  The first was a listing of the sales for his last month on which he was paid commissions, and which was emailed to him by DNOW.  The second was a financial report for February which also impacted his compensation and was therefore not a trade secret as claimed.  

The final was a batch of regular business correspondence that was in Eoff’s email when he retired from DNOW.   During our conversation Eoff stated “… quite frankly, I mean I’ve got hundreds of pieces of confidential information and DNOW knows it. These just happen to be the ones that resided in my email box when I left. And so that’s what they called basically theft on my part. And, you know it’s a trumped-up deal. I mean for most aspects of, you know [I had the documents but] legitimately though, I had it and I did keep that whenever I left I felt justified in it. And it’s kind of interesting how the jury saw that, too, because they did say that I possessed the trade secret. Right. They didn’t say that I used the trade secret. And so they didn’t ask me for any damages, you know, zero. I mean, if you really look through that whole deal, you’ll notice that I’m zeroed out on everything but one aspect. And that’s damages that they had to give up a little over $1,000,000 and I got 1 percent of that.”

When asked about how the case ended up in Fort Bend County, Eoff explained that DNOW, because of the size of their business in Fort Bend County, had a lot of local pull, and because one of the persons being sued, Justin Cole, lived in Fort Bend County DNOW was able to successfully file suit in Fort Bend County.  

According to Eoff, he had difficulty in obtaining local counsel in Fort Bend County as DNOW had retained seven local firms to be involved in the case and this was reflected in the massive legal fees that DNOW is now asking the court to award.

 It remains to be seen what, if any, legal fees the judge might award to DNOW so the overall dollar amount of the final award is as yet undetermined.  However, according to Eoff, his maximum liability would be limited to one percent of the total.