Criminal Considerations In Trade Secrets Disputes

In 2016, with the Defend Trade Secrets Act (DTSA), Congress amended the EEA to include (among other things) civil liability for misappropriation in 18 U.S.C. §1836. Prior to the availability of a federal civil remedy under the DTSA, victims of trade secret theft typically sought civil relief through a mix of state common law and statutory claims.

In the immediate years following the enactment of the EEA, it was relatively uncommon for aggrieved trade secrets owners to pursue criminal relief (as compared to civil relief) by seeking the assistance of U.S. authorities. But when the international theft of U.S. trade secrets escalated and became a higher priority for domestic entities (the annual cost to the U.S. economy of intellectual property theft is estimated to approach $600 billion annually. See, The 2017 Update to the IP Commission Report, The Commission on the Theft of American Intellectual Property), trade secrets owners faced difficult challenges in collecting evidence, pursuing civil actions against overseas actors, and successfully obtaining worthwhile and meaningful relief from civil actions alone. These challenges ultimately resulted in increased referrals, investigations, and prosecutions of trade secrets theft under the EEA by federal authorities. Thus, while EEA prosecutions were rare at the turn of the 21st century, today they are abundant.