Evaluating the “Timing Defense” When Fighting DTSA Claims


Jonathan L. Shapiro, an Associate in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Law360, titled “Evaluating the ‘Timing Defense’ When Fighting DTSA Claims.” (Read the full version – subscription required.)

Following is an excerpt:

The Defend Trade Secrets Act — 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. In the past year, federal courts seeing DTSA cases for the first time have parsed its language and clarified its scope. Savvy defendants have now established a viable strategy when faced with DTSA claims — moving to dismiss the claim where the plaintiff has only alleged facts that show acts of misappropriation occurring prior to May 11, 2016 (the enactment date). At least a half-dozen courts have tackled this “timing defense” to DTSA claims, and defendants raising it in motions to dismiss have seen mixed results.