In our previous post, we began looking at the newly passed Defend Trade Secrets Act, which creates a federal cause of action for businesses wanting to enforce trade secrets in federal court. As we pointed out last time, the law will certainly be beneficial to businesses looking to protect confidential information from misappropriation, but it will also require businesses to think carefully about which forum will be best for each case.
In addition to the procedural considerations mentioned last time, there are other legal considerations that could determine the desirability of pursuing a trade secret case in federal court. For one thing, there is the fact that the specific language used in the Defend Trade Secrets Act is slightly different than the language used in many state statutes. While the basic protections are similar, the differences that do exist in language could give rise to different outcomes.
Then there is also the relative predictability of case outcomes in state court to consider. The fact that there is not a preceding body of law guiding outcomes for cases under the Defend Trade Secrets Act means it is relatively uncharted territory. On the other hand, because it is a federal law, courts applying the law are not as bound to public policy considerations as state courts. This could be a good or bad thing.
Protecting confidential business information from misappropriation is an important task for any business, especially businesses in fast-moving industries. This is why it is so important for businesses to work with an experienced attorney not only to enforce trade secrets when they are violated, but also to come up with policies and procedures to prevent misappropriation from occurring in the first place.