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Ex Parte Seizures and the Defend Trade Secrets Act

25 Pages Posted: 1 Dec 2015  

Eric Goldman

Santa Clara University - School of Law

Date Written: November 30, 2015

Abstract

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

Goldman, Eric, Ex Parte Seizures and the Defend Trade Secrets Act (November 30, 2015). Washington and Lee Law Review, Vol. 72, No. 284, 2015. Available at SSRN: https://ssrn.com/abstract=2697361

Eric Goldman (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-4369 (Phone)

HOME PAGE: http://www.ericgoldman.org

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