U.S. Senators Chris Coons (D-Del.) and Orrin Hatch (R-Utah) have introduced the Bipartisan Defend Trade Secrets Act in Congress. The Act would create the first federal private right of action for the theft of trade secrets.
Although the Economic Espionage Act of 1996 made trade secret theft a crime, it does not provide for a private right of action. Moreover, the Justice Department brought only twenty-five trade secret theft cases last year.
The Defend Trade Secrets Act would:
1. Provide for an owner of a trade secret to bring a civil action for violation of the Economic Espionage Act of 1996 or “a misappropriation of a trade secret that is related to a product or service used, or intended for use in, interstate or foreign commerce.”
2. Provide for original jurisdiction in the federal courts.
3. Provide for various remedies including injunctions and damages. It would also provide for exemplary damages in an amount not more than three times the amount of damages awarded, as well as for an award of attorneys’ fees if a claim of misappropriation is made in bad faith or if a trade secret is willfully or maliciously misappropriated.
4. Provide for an ex parte order for preservation of evidence and seizure.
5. Provide for a five-year statute of limitation.
Benjamin Fink is known for his work in noncompete, trade secret and competition-related disputes. A shareholder at Berman Fink Van Horn, Ben concentrates his practice in business and employment litigation.