The Defend Trade Secrets Act (DTSA), currently proposed and considered substantively identical via Senate Bill 1890 and H.R. 3326, respectively, would create a federal civil cause of action for trade secret misappropriation, whereas currently, only such a state law cause of action, described in some circles as “robust,” is recognized. Further, the DTSA would incorporate provisions of the federal Economic Espionage Act of 1996 (EEA) pertaining to the definition of a trade secret, which is broader than the Uniform Trade Secrets Act (UTSA) adopted thus far by 47 states (of which New York is the most notable exception).
Some of the most notable provisions include, inter alia: (1) under certain circumstances, the authorization for a trade secret owner to, via an ex parte court order, seize property that contains alleged trade secret information (proposed for codification at 18 U.S.C. §1836(b)(2)); (2) permitting injunctive relief to remedy any “actual or threatened misappropriation” associated with a defendant’s new employment, thereby indirectly recognizing the inevitable disclosure doctrine (to be codified at 18 U.S.C. §1836(b)(3)); and (3) a grant of original (albeit not exclusive) jurisdiction to federal courts over civil trade secret claims (to be codified at 18 U.S.C. §1836(c)). Such jurisdiction would necessitate that a prospective plaintiff establish that the alleged trade secret is “related to a product or service used in, or intended for use in, interstate or foreign commerce” so as to comport with the strictures of the Commerce Clause of the Constitution (to be codified at 18 U.S.C §1836(b)(1)).
