On May 11, 2016, the Defend Trade Secrets Act, 18 U.S.C. Section 1836, et. seq., was signed into law. At the time, the DTSA was hailed for ­providing federal protection against the growing problem of corporate espionage. For the most part, the first year of the DTSA unfolded as expected. Federal trade secret filings increased and many litigants attempted to utilize the unique remedies offered by the DTSA. However, the relative infancy of the DTSA leaves many issues open to interpretation. Below, we briefly review some of the major developments during the first year of the DTSA.

Ex Parte Seizures

The DTSA provides plaintiffs with the unprecedented ability to seek an ex parte seizure of misappropriated materials. If granted, this remedy authorizes federal law enforcement agents to enter one's premises and seize property. Many were anxious to see how such extreme relief would affect trade secret cases. One year in, the effect remains unclear.

To obtain an ex parte seizure, a plaintiff must satisfy a rigorous eight-factor test. The most demanding of these factors r­equires a plaintiff to demonstrate that other equitable relief would be insufficient. In practical terms, a plaintiff must show that an ­injunction (or TRO) prohibiting further dissemination or destruction of evidence would not do the job. Unsurprisingly, this exacting standard has proven difficult to meet.

In one of the few instances where an ex parte seizure was granted, the plaintiff demonstrated that the defendant actively avoided being served with a prior TRO, see Mission Capital Advisors v. Romaka, No. 16-05787 (S.D.N.Y. July 29, 2016). Because the plaintiff actually tried and failed to protect itself through less severe equitable relief, the court granted an ex parte seizure.