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Abstract

Over three years have passed since the Defend Trade Secrets Act (DTSA) was passed by Congress. One of the remarkable and ground-breaking provisions of the act was the ex parte seizure provision. With its inherent expediency and the element of surprise, the ex parte seizure provision found instant appeal among the trade secret owner community. But the opponents saw a provision ripe for abuse and anti-competitive behaviour. In the three years since its enactment, the ex parte seizure provision has been used sparingly. Plaintiffs have found other provisions equally effective or at least “good enough.” Even when plaintiffs sought ex parte seizure, the courts often found other available remedies—such as Rule 65 temporary restraining orders (TRO)— sufficient for the desired protection. This article provides a background and overview of the DTSA and its jurisprudence. The philosophical and policy underpinnings behind the inclusion of the ex-parte seizure provision are described to provide the appropriate context. The article then takes a retrospective look at the concerns raised by (primarily) the academic community highlighting the potential for abuse, and assesses if such concerns played out in reality. Further, the effectiveness of the seizure provision, especially in light of alternative provisions available, is also investigated. Finally, recommendations are made for potential reforms to improve the predictability and probability of success of ex parte seizure requests in future applications. Specifically, a multi-factor test focusing on the defendant’s characteristics is proposed to determine the circumstances where a Rule 65 remedy could be used with the same effect as the seizure provision. A second multi-factor test is then proposed as a framework to analyse the likelihood and propriety of ex parte seizure grants.

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