Defend Trade Secrets Act

In First Western Capital Management Co. v. Malamed, Case Nos. 16-1434, 16-1465 & 16-1502 (10th Cir. Oct. 30, 2017), the Tenth Circuit Court of Appeals held that a district court erred in issuing a preliminary injunction to a party under federal and state trade secret law where the court presumed that the party would be irreparably harmed absent the injunction.

Ordinarily, in order to obtain a preliminary injunction, a moving party needs to establish, among other things, that it will suffer irreparable harm if the injunction is denied. This requires the party to show that there is a significant risk that it will experience harm that cannot be compensated by money damages.  In First Western Capital Management, however, the district court held that the plaintiff (First Western) was not required to establish irreparable harm because both the Defend Trade Secrets Act (“DTSA”) and the Colorado Uniform Trade Secrets Act (“CUTSA”) provide for injunctive relief to prevent misuse of trade secrets, and the evidence showed that the defendant was misusing or threatening to misuse trade secrets regarding First Western’s clients.  Thus, the district court held that irreparable harm “presumptively exists and need not be separately established.”  Had First Western not been excused from showing irreparable harm, the district court would have denied its request for injunctive relief because evidence was presented that showed that monetary damages could be reasonably quantified and would adequately make First Western whole.

The Tenth Circuit explained that courts may presume irreparable harm only when a party is seeking an injunction under a statute that mandates injunctive relief as a remedy for a violation of the statute.  When Congress or a state legislature passes such a statute, it effectively has withdrawn the court’s discretion to determine whether such relief is appropriate.  By contrast, when a statute merely authorizes injunctive relief, courts may not presume irreparable harm, as doing so is contrary to equitable principles.  Because DTSA and CUTSA only authorize, but do not require, injunctive relief, and because the evidence presented to the district court showed that monetary damages could be quantified in order to compensate First Western, the Tenth Circuit reversed the district court’s grant of the injunction to First Western.  Legal practitioners thus should carefully review the applicable statute to determine whether it mandates or merely permits injunctive relief; where such relief is not required, they should make a fulsome showing that their client will suffer irreparable harm without an injunction.

Epstein Becker Green attorneys Peter A. Steinmeyer, Robert D. Goldstein, and Brian E. Spang are pleased to be presenting 2017 Year in Review: Trade Secrets and Non-Compete Developments webinar on Wednesday, December 6, 2017 from 1:00 p.m. — 2:15 p.m. with Practical Law.

This webinar will provide insights into recent developments and expected trends in the evolving legal landscape of trade secrets and non-competition agreements. This webinar will focus on how to navigate this continually developing area and effectively protect client relationships and proprietary information.

Topics will include:

  • A review of recent developments and litigation trends under the Defend Trade Secrets (DTSA) since its enactment in 2016.
  • Newly passed state statutes addressing restrictive covenants, including who can enter into them, industry restrictions, and temporal restrictions.
  • Increased usage of “garden leave” clauses in lieu of non-competes.
  • Recent decisions regarding restrictive covenants, including whether a LinkedIn “invitation to link” is an improper solicitation.
  • Significant recent trade secret cases, including the level of detail required when pleading the existence of a trade secret.
  • Administrative agency developments regarding confidentiality clauses, including shifting agency trends under the Trump administration.
  • When are employers actually filing suit against former employees?

Click here for more information and to register for the webinar.

Plaintiff Art & Cook, Inc., a cookware and kitchenware company, brought suit in New York federal court against a former salesperson, Abraham Haber, when a search of his work computer revealed that he had emailed to his personal email account two categories of documents alleged by Art & Cook to be trade secrets: (i) its customer contact lists and (ii) its designs and branding/marketing strategies. Although the court already had issued a temporary restraining order, in Art & Cook, Inc. v. Haber, No. 17-cv-1634, 2017 U.S. Dist. LEXIS 164366 (E.D.N.Y. Oct 3, 2017), the court denied Art & Cook’s motion for a preliminary injunction brought exclusively under the Defend Trade Secrets Act (“DTSA”) because the company failed to demonstrate a likelihood of success on the merits of a DTSA cause of action.

First addressing the customer lists at issue, the court noted that the Second Circuit has long held that, under certain circumstances, a customer list may be deemed a trade secret – particularly where the customer list contains individual customer preferences or represents the list owner’s work to create a market for a new service or good. Where the list contains little more than publicly available information, even if it takes considerable effort to compile, it is not accorded protection under DTSA. The customer lists at issue in this case fell into the latter category, as they contained nothing more than a compilation of publicly available information including emails and phone numbers. The court said that that the fact that it took the company “tens if not hundreds of hours” of research to compile those lists was insufficient under DTSA.

Turning next to the company’s designs and branding/marketing strategies, the court noted that such material was exactly the kind of business information that DTSA was designed to protect because they derive independent economic value from not being generally known. However, the company failed to show that it took “reasonable measures” to keep the information secret. For example, the company’s president testified that he spoke to Haber many times about confidentiality, but the company did not require him to sign a non-disclosure agreement. In fact, the company asked him to sign a non-disclosure agreement three years into his employment and, when he refused to sign, nevertheless gave him access to what it contended was confidential information. The court found that the company’s other steps to secure its information, such as utilizing a password-protected server and folders, were inadequate given such circumstances.

Given the lack of a likelihood of success on the merits as to the DTSA claim, the court denied Art & Cook’s motion for a preliminary injunction and advised that the claim was susceptible to a motion to dismiss. The court’s decision provides companies with insight into what kinds of information are trade secrets under DTSA and how they should protect their trade secrets.

Consider the following scenario that was the premise of the book Charlie and the Chocolate Factory (1964), and later adapted into the classic film Willy Wonka & the Chocolate Factory (1971): your company (Willy Wonka Chocolates) is in the candy business and develops an idea for an everlasting gobstopper (a sucking candy that never gets smaller).  Anticipating substantial profits from the product, the company designates the everlasting gobstopper formula as a trade secret.  As in the book and film, a rival chocolate company (Slugworth Chocolates) seeks to steal the trade secret formula in order to develop and market a competing gobstopper.

While Charlie and the Chocolate Factory is premised on a local competitor seeking to steal trade secrets for its own business, this post focuses on an adaptation to the story based in today’s global economy, and more specifically, the actions a company may take within the United States and abroad to protect against trade secret misappropriation.

Most U.S. companies are now aware of the protections afforded by the Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1836, et seq. (the “DTSA”).  Of most importance is that the DTSA created a uniform legislation that provides companies with a private civil cause of action for trade secret misappropriation.  As a result of enactment of the DTSA, a company that is the victim of trade secret theft has standing to file a civil suit in federal court.  The company may also report the theft to the United States Department of Justice because, in certain cases, the theft of trade secrets constitutes a crime under the federal Economic Espionage Act, 18 U.S.C. §§ 1831, et seq. (the “EEA”).

Due to jurisdictional limitations, however, the DTSA and EEA may not provide adequate protection when there has been a misappropriation of trade secrets in the international arena. Companies should, therefore, be aware of other methods to protect against trade secret misappropriation abroad.  One method is through the United States International Trade Commission (the “ITC”), an independent, quasi-judicial federal agency with broad investigative responsibilities on matters of trade. Pursuant to the Smoot-Hawley Tariff Act of 1930 (the “Act”), the ITC has jurisdiction to investigate and can render unlawful, the importation of goods stemming from “unfair methods of competition and unfair acts in the importations of articles … in the United States.”  The ITC has determined that trade secret misappropriation is a form of unfair competition that is protected under Section 337 of the Act, and the United States Courts of Appeals for the Federal Circuit has affirmed this interpretation in two separate cases. See Sino Legend Chemical Co. v. ITC, 623 Fed. Appx. 1016 (Fed. Cir. 2015), cert. denied, 196 L. Ed. 2d 517 (2017); TianRui Group Co. Ltd. v. ITC, 661 F.3d 1322, 1327 (Fed. Cir. 2011).

In Sino Legend Chemical Co., employees had been working for a U.S.-based company at a facility in China.  The employees stole trade secrets from the company and brought them to Sino Legend Chemical Co., a competitive Chinese company that began developing a competitive product and sought to sell it in the United States.  The U.S. company filed a complaint with the ITC, and after investigation, the ITC instituted a 10-year ban on the importation of products resulting from trade secret misappropriation that had occurred entirely outside the United States.  On appeal, Sino Legend urged the Federal Circuit to overturn the ITC’s decision, arguing that Section 337 of the Act should not apply because the trade secret misappropriation occurred entirely outside the United States.  The Federal Circuit disagreed and affirmed the 10-year ban instituted by the ITC, and in 2017, the United States Supreme Court declined review.

A company should be aware that even if a theft of trade secrets occurs abroad, the company may seek relief through the ITC to prevent the importation of competitive products into the United States that are developed as a result of the stolen trade secrets. Of course, relief through the ITC is limited because the ITC cannot stop the offending company that stole the trade secrets from marketing a competitive product in countries outside the U.S.  There remain, however, other methods to protect against the misappropriation of trade secrets abroad.

Similar to the DTSA, the European Union (“EU”) enacted its own framework for the protection of trade secrets via a directive that went into effect on June 8, 2016. The EU directive provides protection of “undisclosed know-how and business information against their unlawful acquisition, use and disclosure.”  Although the EU directive does not establish criminal sanctions, it does provide for civil means through which victims of trade secret misappropriation can seek protections, such as: (i) allowing for temporary restraining orders and injunctive relief; (ii) removal from the market of goods manufactured based on stolen trade secrets, and (iii) monetary damages.  Pursuant to the EU directive, each member country must incorporate the required provisions into its laws by June 9, 2018.  Importantly, the EU directive contains only the minimum requirements for the protection of trade secrets; however, each EU member country may elect to enact stronger protections.  It remains to be seen whether the EU countries will enact provisions more stringent than the EU directive.

Companies need to protect themselves from the Slugworths of the world. In Charlie and the Chocolate Factory, Slugworth was a local competitor that sought to steal Willy Wonka’s trade secrets, but in today’s global economy, Slugworth can steal trade secrets from anywhere and can also market competitive products throughout the globe.  As a result, companies need to be well versed in the various global protections against misappropriation of trade secrets.  Use of counsel knowledgeable of these various protections is critical to ensure that all avenues of relief are considered.

With the law’s first anniversary in the rear view mirror, defendants have established a viable defense to claims arising under the Defend Trade Secrets Act (“DTSA”) – a plaintiff may be precluded from bringing a claim under DTSA if it only alleges facts that show acts of misappropriation occurring prior to May 11, 2016 (the date of DTSA’s enactment).   In the last few months, four different courts have tackled this “timing defense,” and defendants raising it in motions to dismiss DTSA claims have encountered mixed results.

In Brand Energy & Infrastructure Servs. v. Irex Contr. Grp., No. 16-cv-2499, 2017 U.S. Dist. LEXIS 43497 (E.D. Pa. Mar. 23, 2017), a Pennsylvania federal court rejected the defendants’ attempt to invoke the timing defense because the plaintiff’s amended complaint alleged various times after the enactment of the DTSA that the defendants “used” the plaintiff’s alleged trade secrets.  The court also noted the plaintiff’s inclusion of allegations in the amended complaint showing that “to this day, the defendants continue to ‘obtain access to [its] confidential and proprietary business information ….”  Based on this pleading, the court held that the plaintiff could pursue its DTSA claim.  Similarly, in AllCells, LLC v. Zhai, Case No. 16-cv-07323, 2017 U.S. Dist. LEXIS 44808 (N.D. Cal. Mar. 27, 2017), a California federal court denied the defendants’ motion to dismiss a DTSA claim because “even if [defendants] copied and thus acquired the alleged trade secrets before May 11, 2016, [the plaintiff] has sufficiently alleged that there was at least use of the trade secrets after that date.  Hence, the Act applies.”

In Molon Motor & Coil Corp. v. Nidec Motor Corp., No. 16-cv-03545, 2017 U.S. Dist. LEXIS 71700 (N.D. Ill. May 11, 2017), a plaintiff’s DTSA claim survived dismissal, overcoming the defendant’s argument that “no acts occurred after the effective date of the Act.”  The court held that the plaintiff’s allegations regarding the inevitable post-enactment disclosure of its trade secrets to the defendant by its former employee were sufficient to state a plausible DTSA claim:  “[i]f it is plausible that some of the alleged trade secrets maintain their value today, then it is also plausible that [defendant] would be continuing to use them.”  The court noted, however, that further discovery would be needed to determine whether post-enactment disclosure of the trade secrets was in fact inevitable.

By contrast, a California federal court granted a defendant’s motion to dismiss where a complaint lacked sufficient allegations regarding the timing of the alleged appropriation in Cave Consulting Grp., Inc. v. Truven Health Analytics Inc., No. 15-cv-02177, 2017 U.S. Dist. LEXIS 62109 (N.D. Cal. Apr. 24, 2017).  In Cave, the plaintiff alleged that the defendant acquired trade secrets and used them in a 2014 client meeting, but that conduct predated the enactment of the DTSA.  The court held that plaintiff had failed to make any “specific allegations that defendant used the alleged trade secrets after the DTSA’s May 11, 2016 enactment.”  Because the plaintiff failed to allege that any “postenactment use occurred,” the plaintiff had not stated a plausible DTSA claim.

These decisions illustrate that the likelihood of success of the timing defense largely is a matter of drafting, and provide an important takeaway for both sides of a trade secrets dispute. A plaintiff should be mindful in drafting its pleading to include factual allegations showing that the defendant’s misappropriation occurred (or inevitably will occur) after DTSA’s enactment.  The defendant, on the other hand, should carefully scrutinize the complaint to determine whether a timing defense applies.

Before the Defend Trade Secrets Act (“DTSA”) became federal law in the spring of 2016, Supreme Court watchers would likely care little about prospective justices’ approach to trade secrets matters.  Such matters were the province of state law, and the phrase “trade secret” might be avoided, even in passing, in the opinions of the Supreme Court for entire terms or more.  But with DTSA cases being reported with increasing regularity, differences in interpretation are beginning to emerge.  Supreme Court attention may follow.

Because DTSA says that “misappropriation of a trade secret” can involve unlawful acquisition of a trade secret, or improper disclosure of a trade secret, or unauthorized use of a trade secret, the impact of the statute’s May 11, 2016 “effective date” has been the subject of some debate.  For instance, should the act apply to a trade secret unlawfully acquired on May 10, 2016 but improperly used or disclosed on May 12, 2016 or thereafter?  Likewise, what if a trade secret unlawfully acquired and used before May 10, 2016 is used again after May 11, 2016?  These issues have come up in cases in March and January 2017 in the Northern District of California, in March 2017 in the Eastern District of Pennsylvania, and earlier in the Middle District of Florida.  The answers and analysis found in these opinions is not always entirely consistent, which suggests that this issue under DTSA  as well as others will continue to be litigated.

Should differences arise between circuits, the Supreme Court might be called upon to interpret the reach of DTSA. In that vein, one might wish to look at the Court’s newest member, Neil Gorsuch, and his opinions while a 10th Circuit judge in Storagecraft Technology Corp. v. Kirby, 744 F. 3d 1183 (10th Circuit 2014), and in Russo v. Ballard Medical Products, 550 F. 3d 1004 (10th Circuit 2008). Each reveal interesting elements of Judge — now Justice — Gorsuch’s approach to trade secrets matters.

Storagecraft proves interesting opinion on several levels.  That case involved the Utah trade secrets act in a case coming to the 10th Circuit after being brought in the federal district court as a matter of diversity jurisdiction.  In addressing one of the appealing defendant’s arguments, the Gorsuch opinion rejected the notion that one need show that a defendant facilitated another’s commercial gain to recover under the statute:

Continue Reading Court’s Newest Member Has Trade Secret Protecting Track Record

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As the law’s first anniversary approaches, federal courts continue to adjudicate claims arising under the Defend Trade Secrets Act (“DTSA”).  Enacted on May 11, 2016, DTSA provides the first private federal cause of action for trade secret misappropriation, allowing parties to sue in federal court for trade secret misappropriation.  Although the law is in its infancy, employers and legal practitioners filing complaints that assert DTSA claims must nevertheless adhere to longstanding rules of pleading set forth by the Supreme Court and the Federal Rules of Civil Procedure (“FRCP”).  Two recent decisions address this fundamental concept and serve as reminders that all complaints must follow basic pleading precepts.

Rules of Pleading Under DTSA

Rule 8(a)(2) of the FRCP requires a pleading to contain a “short and plain statement of the claim showing facts that the pleader is entitled to relief.” A complaint must contain sufficient factual matter, accepted as true, “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  A claim becomes plausible if its “factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  Should the well-pleaded facts support no “more than the mere possibility of misconduct,” then dismissal pursuant to FRCP 12(b)(6) is warranted.  Applying these standards to claims brought under the DTSA, a plaintiff must allege facts demonstrating that it is the owner of a trade secret that was misappropriated.  18 U.S.C. § 1836(b)(1).  Generally speaking, a “trade secret” is information that the owner “has taken reasonable measures to keep . . . secret” and that “derives independent economic value . . . from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” Id. § 1839(3).  Thus, a plaintiff asserting a DTSA claim bears the burden of alleging sufficient facts to demonstrate that it took reasonable steps to maintain the secrecy of the protected information.

Two Recent DTSA Decisions Reach Opposite Results

In Raben Tire Co. v. Dennis McFarland, Case No. 16-CV-00141, 2017 U.S. Dist. LEXIS 26051 (W.D. Ky. Feb. 24, 2017), a Kentucky federal court dismissed with prejudice a claim for misappropriation of trade secrets under DTSA for failure to state a claim. The plaintiff Raben Tire (a seller and installer of tires for commercial vehicles and construction equipment) sued two of its former employees and their new employer because, prior to resigning, the former employees allegedly transferred “confidential and proprietary information” to their new employer, including sales commission reports and the names of the individuals responsible for tire purchases.  Other than labeling that information as “confidential” in its complaint, Raben Tire did not allege any facts showing that it took any steps to protect the information from disclosure.  This omission was fatal to Raben Tire’s claim for misappropriation of trade secrets under the DTSA.

By contrast, a North Dakota federal court denied a motion to dismiss such a DTSA claim in Aggreko, LLC v. Guillermo Barreto & Elite Power, LLC, Case No. 16-cv-00353, 2017 U.S. Dist. LEXIS 35573 (D.N.D. Mar. 13, 2017), finding that the complaint satisfied the pleading standards. Just like in Raben Tire, the plaintiff Aggreko (a company that rents generators to customers) sued a former employee and his new employer because, prior to resigning, the employee allegedly downloaded Aggreko’s trade secrets and confidential information relating to Aggreko’s operations, customers, business proposals, and pricing strategies onto his personal hard drive for the benefit of his new employer. Aggreko’s complaint included one critical allegation missing from the complaint in Raben Tire:  the former employee was bound by confidentiality and employment agreements intended to protect Aggreko’s confidential information and to ensure that the information was not removed from the workplace or used by former employees and competitors.  In light of these allegations, the court denied the former employee’s motion seeking dismissal of Aggreko’s trade secret claim because it was “certainly plausible.”

Raben Tire and Aggreko confirm that claims brought under DTSA must be pleaded with the longstanding federal pleading principles in mind.  Employers and practitioners must take care to allege facts asserting plausible claims that not only describe the trade secrets at issue but also detail what measures the employer took to protect them.  Otherwise, like the plaintiff in Raben Tire, the complaint may be subject to dismissal on a motion to dismiss pursuant to Rule 12(b)(6).

shapiroAs we have written about and discussed extensively on this blog over the past year, the Defend Trade Secrets Act (“DTSA”) – enacted on May 11, 2016 – provides the first private federal cause of action for trade secret misappropriation, allowing parties to sue in federal court for trade secret misappropriation regardless of the dollar value of the trade secrets at issue.  Given that the law is less than a year old, federal courts seeing DTSA cases for the first time are still parsing through its language and clarifying its scope.  Although it is still a developing issue, two recent decisions reveal a limitation and viable defense to DTSA claims:  a plaintiff asserting a DTSA claim must allege facts showing that acts of misappropriation occurred after DTSA came into effect.

The first case is a September 27, 2016 decision from the Middle District of Florida, Tampa Division: Adams Arms, LLC v. Unified Weapons Sys., No. 16-cv-01503, 2016 U.S. Dist. LEXIS 132201 (M.D. Fla. Sep. 27, 2016).  Plaintiff Adams Arms, LLC, a manufacturer of military rifles, sued defendant Unified Weapons (and other affiliates and individuals) in federal court – asserting a misappropriation claim under DTSA – for allegedly using Adams Arms’ own trade secrets to enter into an agreement to supply rifles to a foreign country’s military after the companies had agreed to work together to supply the rifles.  The defendants moved to dismiss the DTSA claim relying solely on DTSA’s statute-of-limitations provision, which provides that:

A civil action under [18 U.S.C. § 1836(b)] may not be commenced later than 3 years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered. For purposes of this subsection, a continuing misappropriation constitutes a single claim of misappropriation.

18 U.S.C. § 1836(d) (emphasis added). The defendants argued that because some of the alleged conduct at issue occurred before the effective date of DTSA, there was a single continuing misappropriation and therefore, none of the conduct was actionable.  The Florida court was not persuaded, noting that the sub-section addresses only when a claim accrues for statute of limitations purposes, but does not address the critical question:  whether an owner may recover under DTSA when the misappropriation occurs both before and after the effective date, assuming the entire misappropriation is within the 3-year limitations period.  The court looked to Section 2(e) of DTSA, which applies to “any misappropriation . . . for which any act occurs” after the effective date.  Pub. L. No. 114-153, § 2(e).  According to the court, this language suggests that when an “act” occurs after the effective date, a partial recovery is available on a misappropriation claim.  Based on that reading of Section 2(e) of the DTSA, the court found that a plaintiff may state a plausible claim for relief so long as it sufficiently alleges a prohibited “act” that occurred after May 11, 2016.  Because Adams Arms’ complaint alleged that Unified Weapons disclosed Adams Arms’ trade secrets to the Peruvian military in or about late May or early June of 2016, the court held that Adams Arms articulated a viable misappropriation claim premised on a disclosure theory.  However, the court held that the complaint failed to state a viable claim based on an acquisition theory after the effective date of DTSA because the alleged facts indicated that Unified Weapons acquired all of Adams Arms’ trade secret information well prior to May 2016.  Accordingly, the court denied Unified Weapons’ motion to dismiss the DTSA claim, but limited the DTSA claim to a disclosure theory and held that Adams Arms could not proceed under an acquisition theory.

The second case comes from the Northern District of California and was decided on January 31, 2017: Avago Techs. United States Inc. v. NanoPrecision Products, No. 16-cv-03737, 2017 U.S. Dist. LEXIS 13484 (N.D. Cal. Jan. 31, 2017). In this decision, the California court considered Avago’s motion to dismiss a DTSA counterclaim asserted by nanoPrecision Products, Inc. (“nPP”) contending that Avago  had misappropriated its trade secrets by acquiring its confidential business information and disclosing it in three U.S. patent applications and subsequent prosecution of those applications.  Avago argued that the counterclaim should be dismissed because all of the actionable conduct occurred before the DTSA came into effect.  The court agreed.

nPP did not dispute that the original wrongful acquisition of its confidential information (i.e., Avago’s receipt of nPP’s confidential information in the course of the parties’ business discussions that ended in 2012) occurred before the DTSA came into effect. But nPP nevertheless argued that Avago’s continued use of its confidential information in the prosecution of the three patent applications allowed it to seek a partial recovery for misappropriation from the date the DTSA came into effect.  nPP specifically did not suggest that any new information was disclosed in the course of the patent prosecutions that had not been disclosed prior to DTSA’s effective date.

Significantly, nPP relied on the Adams Arms decision in support of its position, but to no avail.  Noting that the Adam Arms court had found that DTSA’s statute of limitations provision applies only to determinations of the timeliness of a DTSA claim and does not preclude a DTSA claim based on acts that occurred after the effective date of the statute, the California court distinguished Adams Arms, stating that the situation in Avago was “entirely different.”  Whereas in Adams Arms there were allegations that specific information had been disclosed after DTSA’s effective date,  the confidential information at issue in Avago was disclosed when the three patent applications were published before the DTSA came into effect.  The court therefore held that nPP’s DTSA counterclaim failed on the pleadings because nPP had failed to allege any facts showing acts of misappropriation that occurred after DTSA came into effect.

From these two decisions emerges a temporal limitation on the reach of the DTSA. While this issue is still open for further judicial interpretation, Adams Arms and Avago Techs. indicate that a plaintiff may be precluded from bringing a claim under DTSA if it only alleges facts that show acts of misappropriation occurring prior to May 11, 2016.  Defendants facing such DTSA claims should carefully analyze the alleged facts and consider raising this as a defense.