A new day has dawned for trade secrets practitioners. In a fleeting moment of bipartisanship this spring, Congress passed the Defend Trade Secrets Act (DTSA), which President Barack Obama swiftly signed into law on May 11, 2016. The DTSA adds a federal civil claim for trade secret misappropriation to go along with the criminal penalties already available under federal law. Its goal of preventing the theft of U.S. trade secrets by foreign governments prompted a nearly unanimous vote in its favor. But the act is also bound to reshape trade secret litigation across the country by creating a federal private right of action in an area of law that long has been the exclusive purview of the states.
The DTSA opens up a whole new set of considerations for California plaintiffs and their lawyers in trade-secret cases: Should you sue under both the DTSA and the California Uniform Trade Secrets Act (CUTSA)? Do you still need a CUTSA claim at all? Do you want to be in federal court, where the law will be emerging, or in the more familiar confines of state court? And so on.
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