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Brooklyn Law Review

Abstract

With foreign economic espionage and national security concerns thrust to the forefront of the discussion, Congress nearly unanimously passed the Defend Trade Secrets Act after a concerted effort by the executive branch, federal law enforcement, and intellectual property scholars. While this landmark legislation provides the long sought-after grounds of original federal jurisdiction for trade secret misappropriation claims, the statute also offers litigants a powerful remedy—the ex parte seizure provision. This unprecedented provision in trade secrets law allows a plaintiff, with no notice to the defendant, to file an application with the court requesting that U.S. Marshals seize and hold the defendant’s property containing the allegedly wrongfully acquired or disclosed trade secrets until a hearing is set on the matter. Although subject to numerous procedural safeguards and with an order in favor of ex parte seizure only to be granted in “extraordinary circumstances,” this potent provision all but assures that litigants with deep pockets (and in businesses wholly unrelated to national security) will be able to silence a less financially robust competitor—more often than not, a former employee—who may be especially vulnerable to unexpected seizures at precarious moments for a newly launched start-up such as on the eve of an initial public offering or product release. Trade secrets should be considered as a viable property interest, yet are materially distinct from established forms of federally registerable intellectual property (e.g., copyrights, trademarks, patents) and as a result, the vast majority of ex parte proceedings in the trade secrets context will needlessly violate the defendant’s due process rights. This note proposes that the “extraordinary circumstances” language of the ex parte seizure provision should be narrowed to comport with basic constitutional tenets, and further suggests that as a matter of policy, employers should be fostering launchpad and knowledge-sharing environments, rather than punishing top talent and restricting innovation.

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