Trade secret misappropriation has increasingly international scope with expanding cross-border activity and wrongdoing. Indeed, when Congress passed the Defend Trade Secrets Act (DTSA) in 2016, the “Sense of Congress” portion of the Act indicated Congress had concern over trade secret theft “around the world.” Case reports, press accounts, and trade secret owners’ experiences increasingly describe disputes that span several jurisdictions and cross international borders. Litigating a trade secret dispute abroad and in multiple jurisdictions can prove extremely challenging or impracticable, so parties often seek redress in U.S.-based forums. A variety of U.S. forums adjudicate trade secret disputes, including federal courts, state courts, the International Trade Commission, arbitral forums, and administrative tribunals. When at least some of the parties, disputed actions, evidence, or harms are outside the United States, the issue of the extraterritorial reach of these forums and causes of action is implicated. In a number of respects, the law regarding extraterritorial reach of trade secret law is still developing. For example, when this drafting team began its work in 2018, uncertainty existed as to the extraterritorial reach of the DTSA, largely because the case law on the issue was limited at the time. Since then, courts have decided cases on the issue, and this WG12 Framework now reports those developments. Still, no appellate court has addressed extraterritorial reach under the DTSA as of this writing. Similarly, we describe other recent developments, including the use of novel administrative remedies. Given the breadth and relative newness of this topic, the Sedona Conference and the drafting team identified a Framework for Analysis as the proper way to address it. The Framework is designed to help practitioners and the judiciary identify the key means by which conduct abroad is reached by U.S. law. With respect to each of these means, the Framework identifies areas of agreement and disagreement or ambiguity and puts into the appropriate context the types of issues that frequently arise with respect to extraterritorial reach. Please note that this version of the Framework is open for public comment through July 31, 2021, and suggestions for improvements are welcome. |
