Ex Parte Seizures and the Defend Trade Secrets Act
25 Pages Posted: 1 Dec 2015
Date Written: November 30, 2015
Congress is considering the Defend Trade Secrets Act, which would create a new federal trade secret civil cause of action. The Act includes a quirky and unprecedented ex parte procedure for trade secret owners to obtain a seizure order. The seizure provision applies in, at best, a narrow set of circumstances, and it oddly attempts to protect intangible trade secrets by seizing chattels. Despite procedural safeguards, the seizure provision also enables anti-competitive misuse.
More generally, the fact-based disputes that inevitably must be resolved in trade secret litigation make trade secrets an especially poor basis for ex parte actions. As a result, we should be nervous about the proposed seizure provision in the Defend Trade Secret Act — and all other ex parte seizure procedures in trade secret cases.
Keywords: intellectual property, trade secrets, ex parte actions, seizures, TRO, employee mobility, competition, remedies
JEL Classification: K19, K42, L4, J23
Suggested Citation: Suggested Citation