October 18, 2016
Partners Jordan Altman (New York-Intellectual Property Transactions) and Doreen Lilienfeld (New York-Compensation, Governance & ERISA) and associate Mark Pereira (New York-Intellectual Property Transactions) wrote an article, titled “License to Leak: The DTSA and the Risks of Immunity,” that was published in the October issue of Intellectual Property & Technology Law Journal.
In this article, the authors discuss the implications of the recently enacted Defend Trade Secrets Act of 2016 (DTSA), a landmark piece of legislation that has significantly expanded the scope of federal intellectual property law. The DTSA creates a civil right of action for victims of trade secret misappropriation, allowing them to bring claims in federal court against misappropriators. It also grants immunity to individuals who disclose trade secrets within the context of a governmental investigation, which could extend to well-intentioned but harmful disclosures by employees of trade secret owners. “[B]y increasing the opportunity of employees to disclose trade secrets with impunity,” the authors say, “the immunity provisions of the DTSA may make the misappropriation of trade secrets more likely.” As a result, practitioners should “advise their clients to mitigate these increased risks to the fullest extent possible, even as trade secret owners take greater care in securing access to their intellectual property.”