Defend Trade Secrets Act of 2016
May 24, 2022
Defend Trade Secrets Act of 2016
Until now, trade secret law in the United States was left to the individual states. The Uniform Trade Secrets Act, or variations thereof, had been adopted by 47 states and the District of Columbia.
Now, for the first time, federal civil protection exists for trade secrets after President Obama signed the Defend Trade Secrets Act of 2016 (DTSA), effective May 11. 2016, which provides for federal jurisdiction and a civil action for misappropriation of trade secrets in interstate or foreign commerce. The DTSA provides:
An owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.
Employers should review their employment contracts, and any contracts dealing with confidentiality or non-disclosure of trade secrets.
The following provisions of the DTSA are of particular note:
- Employers or other trade secret owners can file a civil suit in federal court for trade secret misappropriation, without diversity of citizenship.
- The trade secret owner may seek an ex parte application in extraordinary circumstances for an order providing for the seizure of property necessary to prevent propagation or dissemination of the trade secret at issue. To do so, the court must find that (1) a preliminary injunction or temporary restraining order would be inadequate, (2) immediate and irreparable injury will occur if seizure is not ordered, (3) the harm to the applicant outweighs the harm to the legitimate interests of the Defendant and other parties who may be harmed by the seizure, and (4) the applicant is likely to succeed in showing trade secret misappropriation.
- Damages may be recovered for actual loss and for unjust enrichment. The DTSA allows for an award of exemplary damages, up to twice the amount of damages otherwise awarded, for willful and malicious misappropriation.
- Whistleblowers are entitled to civil and criminal immunity if they disclose trade secrets in confidence to a Federal, State or local government official, or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or if the trade secret disclosure is made in a complaint or other documents filed in a lawsuit or proceedings under seal.
- An employer is required to provide notice of the immunity provision "in any contract or agreement with an employee that governs the use of a trade secret or other confidential information." A cross reference to a separate policy document provided to the employee setting forth the employer's reporting policy for a suspected violation of law, may be used as an alternative.
- Failure to comply with the immunity notice requirement will prevent an employer from receiving exemplary damages or attorneys' fees in an action against an employee who was not provided such notice.
- The DTSA does not preempt existing state law.
- Injunctive relief may be sought to prevent any actual or threatened misappropriation, but an injunction may not "prevent a person from entering into an employment relationship," but may place restrictions upon such employment.
Grant Konvalinka & Harrison, P.C. is pleased to announce that two (2) of its attorneys and counselors are named to the 2024 Mid-South Super Lawyers Edition. In addition, three (3) attorneys were recognized in the Rising Stars category this year. The selected attorneys are recognized for this achievement of professional excellence and peer recognition. Each year, the Super Lawyers research team recognizes no more than 5% of Tennessee attorneys for this distinction and selects no more 2.5 % of attorneys in a state for the Rising Stars category based upon eligible candidates who are in practice for 10 years or less or 40 years old or younger.
The Grant, Konvalinka & Harrison Law firm is pleased to announce that Amanda Williams and Zachary Atchley have joined the firm as an Associates. Amanda comes from the Golden State of California, specifically San Diego. Amanda attended Boston College and received a Bachelor of Arts degree in Political Science and Economics. Amanda then attended the University of Tennessee College of Law, where she was a student-attorney in the Domestic Violence Clinic and the Expungement Clinic. She was also the Pro Bono Director during her third year of law school. Amanda was previously a summer associate with Grant, Konvalinka & Harrison during law school and joined the firm after her graduation in May 2024. Amanda handles primarily domestic relations issues. In her practice, she addresses a variety of topics such as divorce, child custody, child support, and paternity issues. Amanda strives to give zealous yet efficient representation while helping clients navigate one of the most emotional and challenging periods of their lives. When not in the office, Amanda can be found kayaking the rivers of Tennessee, running along the Tennessee Riverwalk, reading a great book, or cheering for the Tennessee Vols. Zachary Atchley is the second fourth-generation attorney on his father's side who benefitted greatly from the mentorship he received from both his father, Fielding H. Atchley, and brother Trevor F. Atchley, with whom he practiced law before joining Grant, Konvalinka & Harrison P.C. Zachary practices in the areas of General Civil & Commercial Litigation, Financial and Estate Planning, Probate Administration, and Business and Corporate Law. Zachary received his B.A. from Appalachian State University Graduate in 2006. While at Appalachian State, Zachary graduated from Watauga Residential College, an alternative honors program focused on writing, discussion, complex thinking, creativity, community, and curiosity. He received a Master of Public Administration with a Nonprofit Management Concentration from the University of Tennessee at Chattanooga in 2010 and his J.D. from Lincoln Memorial University's Duncan School of Law in 2022. Law is Zachary's second-career as he has over 10 years' experience in nonprofit management, where he specialized in program development, grant writing and administration, organizational planning, and fundraising for nonprofits serving Chattanooga's disinvested neighborhoods and underserved populations. Throughout his life, Zachary has been an active volunteer, involved in both church and civic activities. As a boy scout, he earned the rank of Eagle Scout. His law school emphasized the importance of engaging in community service and pro bono work is an important part of his practice. Zachary regularly volunteers at Chattanooga School for the Arts and Sciences and Center for Creative Arts. where his daughters attend, serves as a Deacon. Sunday School Facilitator, and Worship Leader at First Christian Church Chattanooga, serves as co-president of Barking Legs Theater's Board of Directors, and serves the Citv of Chattanooga as a member of its Beer Board.
Grant, Konvalinka and Harrison congratulates one of their own, David Higney, on being invited to join the Alumni Board of Directors of the University of Tennessee Chattanooga. The University of Tennessee Chattanooga is excited to introduce the new board members. Each member brings a wealth of experience, a deep commitment to our community and a passion for supporting and advocating for UTC. The new board members include: Marla Cobb, David Higney, Joyce Lloyd, Lessie Lyttle, Walker Rhodes, Taylor Rowell, Victor Sims, and Brian Wright.
The Grant, Konvalinka & Harrison, P.C. law firm is pleased to announce that Melissa Weitzel has joined the firm as an associate. Melissa will be practicing in Business and Corporate Law, Financial Services and Transactions, Governmental and Administrative Law, Litigation, and Labor and Employment. Melissa is a Gulfport, Mississippi native and graduate of Vanderbilt University’s Law School. Prior to joining the firm, Melissa worked as a Law Fellow in Vanderbilt University’s Office of the General Counsel where she assisted with a range of higher education matters including finance, labor and employment, intellectual property, and student affairs. During law school, Melissa participated in the Intellectual Property & the Arts Clinic where she represented small businesses in trademark filings and disputes. She completed a full-semester externship with the Office of the Staff Judge Advocate at Arnold Air Force Base in Tullahoma, Tennessee, and a summer internship with USAID’s Justice for All Activity Ukraine. She served on the executive boards of the Space Law Society, the Entertainment & Sports Law Society, and OutLaw. Prior to law school, Melissa attended Mississippi State University where she graduated summa cum laude with degrees in Political Science and History. During her time as an undergraduate, she studied internationally at the University of Oxford and with Cornell University in Turin, Italy. At Mississippi State, Melissa worked as a Student Office Assistant for the Shackouls Honors College, served as Secretary-General of Mississippi Model Security Council, and as Vice-President of the College of Arts & Sciences’ Dean’s Student Advisory Council. Melissa is a member of the Chattanooga Bar Association, the Tennessee Bar Association, Young Lawyers Division, and the Southeastern Tennessee Lawyers' Association for Women (SETLAW). In her free time, Melissa enjoys practicing her (very underwhelming) Russian language skills, being active, and traveling with her loved ones.
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The Board of Directors of Grant, Konvalinka & Harrison ("GKH"), a Chattanooga law firm, are pleased to announce the election of Kane Shepherd as Director at the firm. Kane guides clients in all aspects of real estate matters, financial and lending transactions, and mergers & acquisitions. Kane represents clients ranging from startups to businesses with large international footprints. Kane is a native of Montana who joined the firm in 2019. He received his undergraduate degree from the University of Montana, and received his J.D. with a concentration in business transactions from the University of Tennessee in 2018. Prior to joining GKH, Kane clerked at the Hamilton County Chancery Court for the Honorable Pamela A. Fleenor and the Honorable Jeffrey M. Atherton, and previously worked as a wildland firefighter for the U.S. Forest Service. To learn more about Mr. Shepherd, please visit his webpage at http://www.gkhpc.com . Contact him at 423-756-8400 or by email at kshepherd@gkhpc.com .
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