Ex Parte Seizures Under the DTSA and the Shift of IP Rights Enforcement

The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision—which is not incorporated into any state trade secret law—relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a lawsuit. The effect of this cost shifting results in anticompetitive behavior, is ripe for abuse, and offers no added benefit to what is provided via state trade secret causes of action and remedies.