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On May 11, the Defend Trade Secrets Act of 2016 (DTSA), providing a private right of action for trade secret misappropriation, became law. The DTSA amends the Economic Espionage Act of 1996 (EEA), which authorizes criminal prosecution of trade secret theft and creates a national mechanism to combat such theft. The DTSA is intended to coexist with trade secret protections as afforded by state statutes and common law, such as those available in New Jersey. The result is an array of legal recourse for trade secret owners (TSOs) and practitioners. The DTSA took effect immediately.

Before the DTSA was enacted, state law governed civil lawsuits for trade secret theft, with 48 states, including New Jersey, adopting some form of the Uniform Trade Secret Act (UTSA). New Jersey’s Trade Secrets Act (NJTSA), N.J.T.S.A. 56:15-1 et. seq.,was enacted on Jan. 5, 2012.

State law disparities resulted in inconsistent outcomes for TSOs, making it difficult for them (particularly companies with multistate operations) to comply with varying legal requirements and to pursue misappropriation claims against individuals overseas. The DTSA now creates both marked procedural advancements and hurdles subsequent to the NJTSA.

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