There is a new and potentially powerful tool available to protect trade secrets – ex parte seizures. The Defend Trade Secrets Act (DTSA), enacted May 11, 2016, implements a federal civil cause of action for trade secret misappropriation. Among its remedies, the DTSA permits injunctive relief, the recovery of damages for misappropriation, attorney’s fees for willful conduct and ex parte seizures under extraordinary circumstances. The ability to obtain ex parte seizures related to trade secrets, although controversial both prior to and after enactment of the DTSA, is a tool that had not previously been available under federal law or among the vast majority of state trade secrets laws. This tool could have a potentially significant impact on the fight against corporate espionage, hacking and domestic and international theft for small and large businesses.
Under the DTSA, federal courts may seize any “property necessary to prevent the propagation or dissemination” of trade secrets without notice to the alleged perpetrator. These orders, of course, will not be handed out like candy. Plaintiffs are required to establish “extraordinary circumstances” and must satisfy other criteria, including, showing that immediate and irreparable injury will occur if the seizure is not ordered, a likelihood of success on the merits and that “the person against whom seizure would be ordered, or persons acting in concert with such person, would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person.”
The DTSA sets forth many nuances and features in addition to the ex parte seizure provision, e.g., the DTSA includes a provision which requires employers to provide notice of whistle-blower immunity in order to access DTSA remedies. However, the ex parte seizure provision is a potentially game-changing tool.
Renzulli Law Firm attorneys can assist clients in establishing cost-effective strategies to protect and preserve trade secrets, understanding the nuances and features of the DTSA, state trade secret laws and other laws which relate to the protection of trade secrets, and evaluating pre-litigation and litigation strategies when trade secrets are threatened, in jeopardy or stolen.