If you’re suing under the Defend Trade Secrets Act, you need to allege that the theft or misuse occurred after the law’s enactment
If you want to sue somebody for trade secret theft, you've got two options: the California Uniform Trade Secrets Act and the Defend Trade Secrets Act.
Let's talk about the latter.
It's a relatively new federal law. And if you want to sue under it, you need to allege that the wrongful theft or wrongful use occurred after the Defend Trade Secrets Act's enactment (May 11, 2016).
And in federal court, you’ve got to be specific. You can’t just say that the “misappropriation was ongoing until after the law’s enactment.” Several courts have said that's not good enough.
And this recent decision (Physician's Surrogacy, Inc. v. German) out of San Diego falls in line.
This case involved allegations that the misappropriation began in April 2016—one month before the law's enactment—and continued through 2017.
Yet that’s not good enough.
The court required specific allegations of acts or thefts that occurred after the enactment date, and there were none. There was just the conclusory statement that “misappropriation was ongoing.”
The court gave that plaintiff another chance, and the plaintiff blew that one too.
It still did not identify facts as to when specific acts occurred. It still contained conclusory statements like “willfully and improperly using [the alleged trade secrets],” which is an improper a “legal conclusion couched as a factual allegation,” per Papasan v. Allain, 478 U.S. 264, 286 (1986).
And the plaintiff jumbled all the defendants together so you couldn't tell which defendant did which acts.
So the court dismissed the trade secret claim again.
Doing this right shouldn't be hard. You could allege that the person emailed your customer list (assuming that's a trade secret) to herself on May 12, 2016. Or you could allege that she did business with your customer on May 13, 2016.
Whatever your case is, figure out acts that actually happened after May 11, 2016, and allege that.