In Seyfarth’s third installment in its 2019 Trade Secrets Webinar Series, Seyfarth attorneys Katherine Perrelli, Justin K. Beyer, and Amy Abeloff focused on the key provisions of the Defend Trade Secrets Act, how the DTSA has evolved since it was passed three years ago, and what to expect in the future.

As a conclusion to this well-received webinar, we compiled a summary of takeaways:

  • The Defend Trade Secrets Act of 2016 created a federal civil cause of action for owners of trade secrets that have been misappropriated. While the DTSA is very similar to the UTSA, there are a few key differences to be aware of—such as the DTSA’s ex parte seizure option, which may be brought by a plaintiff without notice to an adversary, and the DTSA’s whistleblower immunity.
  • If an employer does not include the statutory whistleblower notice language in its employment (and consultant) agreements and employment policies that include provisions protecting against the disclosure of trade secret and confidential information, the employer may not be awarded exemplary damages or attorney’s fees in a misappropriation action against an employee (or consultant) to whom the notice was not provided.
  • As courts continue to consider DTSA cases, it is important to track how courts around the country interpret the DTSA against its state law counterparts to better understand the interplay between the two. While there are a number of overlapping provisions between the DTSA and the UTSA, understanding the differences can help practitioners better predict outcomes when evaluating whether to bring state-law, DTSA, or DTSA and UTSA claims.