USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Josh Berlowitz and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
5.4 Jurisdiction of the Courts A trade secret claim may be initiated in federal court under the DTSA if the court is capable of exercising personal jurisdiction over the defendant in the cho - sen forum and if the venue is proper. State law claims may be appended to a DTSA claim or they may be brought on their own in federal court if there is com - plete diversity of citizenship between parties (ie, no plaintiff shares the citizenship of any defendant and vice versa) and the plaintiff alleges an amount in con - troversy of more than USD75,000. State law claims may also be brought in the state in which the claims arose. The choice of forum (either the state court or federal courts within the forum state) available to a plaintiff will depend on factors such as where the defend - ant lives, is incorporated or has significant business operations, and where the alleged acts of misappro - priation occurred. A trade secret owner faced with acts of misappropriation by a foreign corporation may need either to sue a local subsidiary of the foreign corporation or to be prepared to show that the for - eign corporation has sufficient minimum contacts with the chosen forum state, such as transacting business within the state or competing with the trade secret owner in that state. Prospective trade secret claimants should also ana - lyse any relevant contracts in order to be aware of any agreements related to specific jurisdictional require - ments or admissions or the applicability of any arbitra - tion clauses. 5.5 Initial Pleading Standards In federal courts, the pleading standards for trade secret misappropriation claims are expressly gov - erned by the pleading requirements of FRCP 8. Under those pleading requirements, a trade secret plaintiff will be able to survive a motion to dismiss in federal court if it alleges sufficient specific facts to plausibly demonstrate that the information misappropriated constitutes a protectable trade secret, the informa - tion derives value from being secret and the owner took reasonable measures to keep it secret. An increasing number of state and federal courts have imposed a heightened standard for initial disclosures
in trade secret cases, which requires that the plaintiff identify the asserted trade secret with reasonable par - ticularity before proceeding to discovery – eg, Torsh, Inc v Audio Enhancement , Inc, 2023 WL 7688583 (E.D. La. Nov. 15, 2023). Other courts, however, have rejected this requirement, holding that identifying a trade secret with particularity is a factual matter for resolution after discovery – eg, Quintara Biosci., Inc v Ruifeng Biztech, Inc , 149 F.4th 1081,1087-88 (9th Cir 2025). While only California (Cal. Civ. Proc. Sec - tion 2019.210) and Massachusetts (M.G.L. c. 93 Sec - tion 42D(b)) impose statutory reasonable particularity requirements, the growing consensus among courts towards demanding greater detail in pre-discovery pleadings may expose a plaintiff to unique strategic challenges in terms of specifically articulating the trade secrets that it believes have been misappropri - ated. In the growing number of jurisdictions where the plain - tiff must identify the misappropriated trade secrets with reasonable particularity before the commence - ment of discovery, a defendant may argue that the plaintiff’s identification is insufficiently particular, such that the defendant cannot defend against the allega - tions of trade secret misappropriation and the court will be unable to determine the appropriate scope of discovery. In such circumstances, a defendant may be able to extract increasingly specific disclosures that narrow the scope of the trade secrets asserted, while staying discovery into the trade secret claims as well as other causes of action based on the same factual allega - tions. In some jurisdictions, a plaintiff may be able to proceed well into discovery with a trade secret identi - fication that is more general, but courts that follow the reasonable particularity standard will generally require a narrative description that provides the defendant with sufficient detail to investigate how, if at all, the alleged trade secret differs from information that is publicly known or well-known within the relevant industry. The degree of particularity required is highly context-specific and fact-dependent, and courts have discretion to require a more exacting level of particu - larity for more complex technologies.
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