The Defend Trade Secrets Act of 2016 created a federal civil cause of action without preempting state law. An owner may bring a claim if the trade secret "is related to a product or service used in, or intended for use in, interstate or foreign commerce." 18 U.S.C. § 1836(b)(1). Federal courts have original jurisdiction under § 1836(c). Because nearly all commercially meaningful trade secrets satisfy the commerce nexus, the DTSA functions in practice as a jurisdictional election rather than a substantive expansion.
Four features distinguish the federal statute from WUTSA:
- Ex parte seizure. Section 1836(b)(2) permits a court, on ex parte application "but only in extraordinary circumstances," to order seizure of property necessary to prevent propagation or dissemination of the trade secret. The prerequisites are demanding: Rule 65 relief or comparable equitable relief must be inadequate; immediate and irreparable injury must be shown; and the balance of harms must favor the applicant. The statute provides for a special master, confidentiality protections for unrelated seized material, security posted with the court, and a wrongful-seizure cause of action modeled on § 34(d)(11) of the Lanham Act, 15 U.S.C. § 1116(d)(11).
- Whistleblower immunity and the notice requirement. Section 1833(b)(1) immunizes an individual from criminal or civil liability under any federal or state trade secret law for disclosing a trade secret in confidence to a government official or attorney solely to report or investigate a suspected violation of law, or in a sealed court filing. Section 1833(b)(3)(A) requires employers to give notice of this immunity in any contract or agreement governing the use of trade secrets or confidential information. An employer that fails to provide the notice "may not be awarded exemplary damages or attorney fees" against an employee who did not receive it. § 1833(b)(3)(C). This is a recurring and easily avoided trap in agreement drafting.
- Express limits on employment injunctions. The DTSA constrains injunctions that would prevent a person from entering an employment relationship; such conditions must be based on evidence of threatened misappropriation and not merely on the information the person knows. 18 U.S.C. § 1836(b)(3)(A)(i). This is a statutory rejection of the inevitable disclosure doctrine as a basis for federal injunctive relief.
- Explicit carve-outs from "improper means." Section 1839(6) expressly excludes reverse engineering and independent derivation. WUTSA reaches the same result by construction rather than by text; Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 53–54, 738 P.2d 665 (1987) treats reverse engineering as a proper means of acquisition.