The Defend Trade Secrets Act (DTSA) became law earlier this month. As my colleague Josh Horn has noted, the DTSA is a real game changer for the protection of your trade secrets. No longer are you limited to state law for the protection of your trade secrets.

What does this mean? It means that, so long as your trade secret is used or intended to be used in interstate or foreign commerce, you now have the legal right to go to federal court and have that court enforce your rights–no diversity (meaning parties from different states) jurisdiction required. Moreover, the uniformity of the DTSA and the federal courts means that there is no longer any need to worry about disparate state laws and rules regarding discovery and court procedure.

Importantly, while the standards for relief are quite high, in an appropriate case you also now have the option of seeking ex parte relief; that is, relief without providing notice to the party you believe is infringing upon your trade secrets. In order to obtain such relief, you need to prove you meet not only the traditional factors for a preliminary injunction, you also need to demonstrate that the offending party will “destroy, move, hide, or otherwise make [the trade secret] inaccessible to the court.” The law balances this extraordinary right by requiring the moving party to post security and the court to keep possession of the trade secret information until a final court hearing.

The DTSA also provides for damages for a variety of offenses, including actual loss caused by and/or unjust enrichment due to the misappropriation and a reasonable royalty. Willful and malicious misappropriation can result in exemplary damages. Finally, there is the potential for fee shifting if either party has acted maliciously in alleging or causing the misappropriation.

For more details on the DTSA, please review Josh’s detailed Alert.