there was sufficient evidence that the employee intended to use the customer list information he had taken. 6. Would the DTSA’s whistleblower provisions have a significant impact on trade secrets litigation? It is too early to tell. The DTSA has “whistleblower” provisions that provide a sort of safe harbor from claims of misappropriation. These provisions can protect an employee who provides trade secrets to the government or his lawyer. The statute also provides an incentive to disclose these rights to employees: Employers who do not disclose these rights in writing cannot recover punitive damages or attorneys’ fees under the DTSA. It seems the chief effect of the whistleblower provisions has been to give lawyers an opportunity to charge their clients for revising employee agreements and handbooks to add the required disclosure. The effect on trade secrets lawsuits, on the other hand,
seems minimal so far. Claiming whistleblower status as a defense to a trade secret claim may become more common, but it has not been a major issue in the first year of case law under the DTSA.12 7. Would the DTSA foster “uniformity” in trade secrets law? Not really. There has been a lot of talk about the DTSA promoting uniformity in US trade secrets law, but this is largely a myth. The DTSA does not preempt state trade secrets law.13 So, before the DTSA, we had 50 states with their own similar—but not identical—versions of trade secrets law. And now, we have 50 states with their own similar—but not identical—versions of trade secrets law, plus a federal version. If anything, the DTSA has created more opportunities for conflict in trade secrets law. Zach Wolfe is a trial lawyer with Fleckman & McGlynn, PLLC. His practice
focuses on non-compete and trade secret litigation. He often writes about trade secrets issues at his weekly blog www. fiveminutelaw.com. Endnotes
1. See 18 U.S.C. § 1836(b)(2)(A)(ii)(I) (requiring finding that “an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate...”). 2. “Sealed Order,” Dkt. No. 10, in Balearia Caribbean v. Calvo, No. 16-23300 (S.D. Fla. Aug. 5, 2016) 3. Magnesita Refractories Co. v. Mishra, No. 2:16-CV524, 2017 WL 655860 (N.D. Ind. Feb. 17, 2017). 4. Seizure Order, Dkt No. 7, in Mission Capital Advisors LLC v. Ramaka, No. 1:16-cv-05878-LLS (S.D.N.Y. July 29, 2016). 5. Henry Schein, Inc. v. Cook, 191 F.Supp.3d 1072, 1074-75 (N.D. Cal. 2016). 6. First Western Capital Mgmt. Co. v. Malamed, No. 16-cv-1961-WJM-MJW, 2016 WL 8358549 (D. Colo. Sept. 30, 2106). 7. Waymo LLC v. Uber Technologies, Inc., No. C 1700939 WHA, 2017 WL 2123560 (N.D. Cal. May 15, 2017). 8. See Order Denying Plaintiffs’ Application for Preliminary Injunction, Dkt. No. 52, in OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017EJD (N.D. Cal. Jan. 20, 2017). 9. Gold Medal Prods. Co. v. Bell Flavors & Fragrances, Inc., No. 1:16-CV-00365, 2017 WL 1365798, at *1-3 (S.D. Ohio Apr. 14, 2017). 10. 18 U.S.C. § 1839(3); TEX. CIV. PRAC. & REM. CODE § 134A.002(6). 11. 18 U.S.C. § 1836(b)(3)(A)(i)(I). 12. 18 U.S.C. § 1833. 13. 18 U.S.C. § 1833 note (f).
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