The new federal private right of action for
misappropriation of trade secrets
Join the Intellectual Property Practice Group's FREE moderated panel
discussion of benefits/burdens to your clients and your litigation and
counseling practice.
Citing annual losses of $300 billion and 2.1 million jobs to foreign
trade-secret thieves, Congress unanimously passed and, in early May, the
president signed the Defend Trade Secrets Act of 2016 (DTSA) --
establishing a federal private right of action under the Economic Espionage Act
of 1996 for “misappropriation” of trade secrets.
Although the private right of action is substantively similar to the Uniform
Trade Secrets Act (UTSA), the DTSA also provides access to federal courts with
no jurisdictional amount requirement and expressly permits ex parte seizure of
contraband and evidence subject to due process and anti-abuse limits. While
leaving state trade secret laws in place, the DTSA expressly precludes
injunctions preventing a person from “entering into an employment relationship,”
requires that any conditions on such employment be based on “evidence of
threatened misappropriation and not merely on the information the person knows,”
and expressly does not preempt state law protecting employee mobility
(particularly paraphrasing California’s). Because, unlike 48 other states,
Massachusetts has not adopted the UTSA, it may be in greater conflict with DTSA
and yet be weaker against so-called “inevitable disclosure” of proprietary
information.
The faculty includes: Jerry Cohen, Esq., Burns &
Levinson; Russell Beck, Esq., Beck Reed Riden LLP; and
Stephen Y. Chow, Esq., Burns & Levinson.