Major Questions that the DTSA Brings

Technological developments have made it easier for employees to download confidential work-related information for uses both legitimate and illegitimate. One consequence of that can be the theft of trade secrets. Last year, Congress passed the Defend Trade Secrets Act, which elevated trade secret misappropriation issues from the state to the national level.

Courts nationwide have begun to hone in on various preemption issues related to trade secrets misappropriation statutes. One of those issues is whether a state uniform trade secrets act preempts common law claims. Because each state’s trade secrets misappropriation statute is different, and because the state courts have interpreted such statutes in different ways, companies should be aware of what preemption analysis the courts within their jurisdiction use.

Other issues that arise around misappropriation include potential Anti-Slapp law defenses, the question of seizing electronic devices, whistleblower protection and, notably, damages. With the elevation of trade secrets misappropriation issues to the national level, damages theories from other federal intellectual property infringement matters will likely be applied to DTSA claims.

Companies must continue to improve their trade secrets protection measures and be prepared to act quickly in order to prevent their trade secrets from falling into the hands of competitors. Understanding what remedies are available, how to obtain them and how damages are assessed can help with the decision-making process when deciding whether, and how, to pursue a particular misappropriation case.