The Defend Trade Secrets Act: Lessons for Employment Counsel From DTSA Filings and Court Rulings

The DTSA was heralded by corporations and business groups as a much-needed weapon for stamping out trade secret misappropriation by employees when it was enacted in May 2016. The law gives federal courts original jurisdiction over civil trade secret claims, provides employees immunity from liability for certain confidential disclosures to the government or attorneys, and allows employers to seek ex parte orders to seize misappropriated trade secrets from employees.

The DTSA also requires employers to provide notice of the whistleblower protection provision to employees or lose their right to seek attorneys’ fees and exemplary damages under the Act.

Since the DTSA went into effect, more than 300 DTSA claims have been filed in federal court. Employment litigators need to understand the case law trends that are emerging as courts begin to interpret the Act and adjust their trial strategies in trade secret cases accordingly. In addition, employers should ensure their employment contracts and nondisclosure agreements comply with the DTSA’s new requirements.

Listen as our authoritative panel reviews lessons for employment attorneys for litigating trade secret cases and/or advising employers on compliance strategies more than one year after the enactment of the DTSA.

1. DTSA Background, Statistics, and Notable Provisions
   1. Brief History / General Information
   2. Statistics
   3. DTSA Elements & Remedies
   4. Goals / Purpose of the DTSA
   5. Notable Provisions
      1. Ex Parte Seizure Provision
         1. Practice Pointers
      2. Whistleblower Immunity Provision
2. Other Trends, Interesting Developments, and Significant Issues
   1. Federal Courts have Looked to State Law for Guidance
   2. Pre-Enactment Conduct
   3. Inevitable Disclosure Doctrine
      1. Practice Pointers
3. Additional Practice Pointers and Lessons
   1. Litigation
      1. General practice tips for asserting a DTSA claim
   2. Advisory
      1. Non-disclosure agreements
      2. Implementing “Reasonable Measures” to Keep Information Secret
      3. Updating and Revising Employment Agreements and Contracts to Include Notice of Whistleblower Immunity Provisions

The panel will review these and other key issues:

• To what types of trade secret misappropriation does the DTSA apply?
• What should employment counsel consider when evaluating whether to file a trade secret misappropriation action in state or federal court?
• How should employment contracts and nondisclosure agreements be updated in light of the DTSA's requirement to provide notice of whistleblower protections to employees?
• What factors should employment counsel evaluate when weighing whether to request an ex parte civil seizure order to seize misappropriated trade secrets?