Plausibility under the Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188 (2017)

With the recent passage of the Defend Trade Secrets Act (DTSA), a federal civil cause of action for trade secret misappropriation is now available. To add some familiarity to the Act, the drafters incorporated definitions similar to those of the Uniform Trade Secrets Act (UTSA). However, even though the provisions may seem familiar, there is a new requirement that is not obvious on the face of the statute- the plausibility requirement for pleading under the federal rules. To understand plausibility; however, one must understand the DTSA.

Unfortunately, there is no guidance from the DTSA that can aid interpretation of the statutory definitions for this purpose. Due to the similarities with the UTSA; however, there is some persuasive guidance in the UTSA comments and in federal cases applying state UTSAs. This article reviews these options as a means of navigating the federal plausibility requirement in DTSA actions.