The DTSA - A Powerful Tool
Trade secret cases are emergencies. On the the plaintiff side, $1 million, $10 million, or even $100 million+ worth of trade secrets may have just walked out your door. The Defend Trade Secrets Act provides a powerful tool for companies to defend their trade secrets. But that tool is worthless unless placed in the right hands. Experienced trade secret lawyers can utilize the DTSA to:
- Secure federal court jurisdiction over complex trade secret claims.
- Avoid state-court obstacles to trade secret claims (e.g. UTSA preemption).
- Seek preliminary injunctions to prevent further use of stolen trade secrets.
- Seek ex-parte injunctions (without notice) in extraordinary circumstances.
- Seek extensive damages, including lost profits and/or disgorgement.
On the defense side, DTSA cases are equally as urgent. Often, the plaintiff is seeking an injunction that will disrupt your business, seize your property or even shut your company down. In many trade secret cases, the plaintiff’s claimed damages are astronomical. Experienced DTSA defense lawyers must be prepared to:
- Immediately defend emergency injunction proceedings.
- Immediately pursue an appeal and emergency stay of injunction in enjoined.
- Attack the value of the claimed trade secrets and the plaintiff’s damages model.
- Conduct extensive discovery to prove the claimed trade secret was not protected.
- Defend against numerous related claims, including fraud, breach of fiduciary duty, breach of contract, and tortious interference.
Meet the Team
Jonathan Pollard
Founder & Attorney
Boies Schiller & Flexner alum. Georgetown Law. Law review. Phi Beta Kappa & Magna Cum Laude from Cornell University. Competition lawyer. Appearances on PBS News Hour and in the New York Times, Wall Street Journal, FundFire, Digital Guardian, Law360, Litigation Commentary & Review and Inc. Magazine.
Chris
Prater
attorney
Magna Cum Laude & Order of the Coif, University of Miami School of Law. Podhurst Oresk alum. Competition lawyer. Keywords: Trade secrets, antitrust, non-compete, trademark, Lanham Act, false advertising, class actions, medical malpractice.
Alex
Gil
attorney
Magna Cum Laude, University of Miami School of Law. Podhurst Orsek alum. Competition lawyer. Keywords: Trade secrets, non-compete, arbitration, class actions. Also an LLM in taxation and a tax guru.
David
Yaffe
attorney
Individualized Strategic Guidance
Whether prosecuting or defending a trade secret case, we utilize our extensive knowledge and expertise on trade secret litigation to craft an individualized strategy for every single client. We don’t do boilerplate.
Factual Assessment
We start with the facts. Cases are all about facts. Law is just a tool. You are the expert on your business and your industry. Educate us on your business and your market. Tell us what happened. Tell us your concerns. We will take those inputs and do a comprehensive factual assessment.
litigation blueprint
Lots of lawyers jump into litigation without ever considering the road-map, the next move, the risks, the costs. Not us. We give you a litigation blueprint. We map out your options, our recommended strategy, case phases, next steps, risks, and costs.
Aggressive implementation
Upon completion of a factual assessment and an agreed upon litigation blueprint, we aggressively implement our litigation strategy. Whether plaintiff or defendant, the rule is a simple one: Always play offense. If we accept your case, we are all in and committed.
Frequently Asked Questions
Most frequent questions and answers
Does the Firm represent plaintiffs or defendants in trade secret cases?
IWe represent both plaintiffs and defendants in trade secret litigation. Unlike many large law firms (and many law firms generally), our biggest considerations are: (1) Are we on the right side? (2) Do we like the client? (3) Can we bring value to the case and client? If all of those questions are answered in the affirmative, then — and only then — do we consider (4) Can we monetize the case? We are not just hired guns who are willing to represent any client who can afford to pay us. We turn away millions of dollars worth of litigation every year. Why? Because we don’t believe that cause is just, we don’t believe the client is on the side of what is morally, legally or ethically right; or, because we do not consider the client a good fit.
Does the DTSA apply to misappropriation prior to its passage?
It depends. If misappropriation or use of the trade secret continued after the DTSA was passed into law, then the DTSA still applies. See e.g., Syntel Sterling Best Shores Mauritius Ltd v. Trizetto Group, Inc., Case No. 15-CV-211 (S.D.N.Y. Sept. 23, 2016) (The United States District Court for the for the Southern District of New York refused to dismiss the defendants’ counterclaims of trade secret misappropriation under the DTSA, because even though the initial acts of alleged misappropriation took place before the enactment of the DTSA, the plaintiff continued its alleged wrongful use of the defendant’s intellectual property after the date of the DTSA’s enactment).
Does the Firm take DTSA cases on a contingency fee?
In certain instances, the Firm will accept plaintiff-side misappropriation of trade secret cases on a contingency fee. Prior to accepting any trade secret matter as contingency fee litigation, the Firm will charge a significant flat fee for an investigation and evaluation of the potential claims. We cannot and will not undertake such an evaluation without payment for that specific service. If, upon evaluation, we believe the case is strong enough, we may offer the client contingency fee based representation. Generally, we will not accept theft of trade secret cases on a contingency fee basis unless the damages are quite significant (i.e. $10 million+). To state the obvious: We do not defend trade secret cases on a contingency fee, but certain alternative fee arrangements are possible.
Does the Firm offer flat fee trade secret litigation defense?
For complex DTSA litigation defense and sophisticated clients, the Firm is sometimes able to provide a flat fee proposal or other alternative fee proposals. The client must first retain the Firm for an analysis of the claims at issue and possible defense strategy. At the client’s option, the Firm can provide proposed alternative fee arrangements as part of that analysis. Flat fee arrangements generally cover only defense of the asserted claims in the specific action and generally run through summary judgment. Trial is priced separately, as are other related matters (e.g. Appeals). Such arrangements cover only attorneys’ fees and do not cover litigation costs, which are to be paid entirely and directly by the client. For most complex DTSA cases, litigants should expect a minimum flat rate of at least $300,000. Flat rate means certainly and predictability. It does not mean cheap.
Does the DTSA preempt any other claims?
Anybody who litigates trade secret cases has heard about UTSA preemption. Defendants in trade secret cases use UTSA preemption to defeat other, related claims (e.g. fraud, tortious interference, etc.). This is one significant benefit of the DTSA. The DTSA explicitly states that it does not preempt any other laws or causes of action. As such, plaintiffs can run DTSA claims in tandem with other tort claims. This can be particularly useful, because certain tort claims (e.g. Fraud) open the door for punitive damages.
What sorts of damages are available under the DTSA?
The DTSA is relatively new and DTSA damages law is still evolving. But as a general rule, parties should anticipate that the same types of damages available under the UTSA are also available under the DTSA (e.g. actual damages, disgorgement of unjustly earned profits, or reasonable royalty). Election of remedies under the DTSA (i.e. forcing the party to choose which type of damages it seeks) remains an open question subject to debate.
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Experienced Trade Secret Lawyers
We prosecute and defend complex theft of trade secret claims in federal courts throughout the country. To speak with one of our experienced trade secret lawyers, please contact our office at 954-332-2380.