USA – DELAWARE Trends and Developments Contributed by: Travis S. Hunter, Richards, Layton & Finger PA
Delaware’s Growing Role as a Forum for Trade Secret Disputes Delaware continues to serve as a leading forum for complex commercial disputes, and trade secret liti - gation is no exception. In recent years, trade secret filings in Delaware have increased across both state and federal courts, with annual filings doubling in both venues over the past decade. That growth outpaces broader national trends, suggesting that Delaware is playing an increasingly prominent role in trade secret disputes. This trend reflects not only broader changes in how companies protect proprietary information, but also Delaware’s ability to accommodate those disputes quickly and efficiently. As trade secret claims have become more central to business litigation, particu - larly considering increased scrutiny of restrictive cov - enants and the availability of federal claims under the Defend Trade Secrets Act, Delaware’s established courts have become a natural forum for resolving them. Delaware’s appeal as a forum for trade secret dis - putes stems from the flexibility of its court system in addressing different types of claims and remedies. The Court of Chancery offers a path to expedited equitable relief, making it attractive in cases involving threatened or ongoing misappropriation. The Complex Commercial Litigation Division of the Superior Court provides a specialised forum for damages claims. And federal courts in Delaware allow parties to bring trade secret claims under the Defend Trade Secrets Act alongside related state law claims, enabling over - lapping issues to be resolved in a single proceeding rather than across multiple courts. Equally important is the depth of judicial experience in handling complex business disputes. Delaware judges, particularly in the Court of Chancery, regularly address issues involving employee mobility, restrictive covenants, and proprietary information. That experi - ence contributes to a high degree of predictability, enabling parties to assess litigation risk more confi - dently when deciding where to file. In contrast to jurisdictions where expedited relief may be less predictable or commercial dockets less
specialised, Delaware offers a combination of speed, expertise, and procedural flexibility that is especially well-suited to trade secret disputes. Erosion of Restrictive Covenants and the Rise of Trade Secret Claims The increase in trade secret litigation is tied to broad - er developments in the law governing restrictive covenants. Courts across the country have shown increasing reluctance to enforce broad non-compete and similar agreements that are not narrowly tailored to protect legitimate business interests. In Delaware, that scrutiny has, in some instances, resulted in courts declining to enforce restrictive covenants altogether or limiting their scope. From a practical perspective, this has changed how businesses approach the protection of their proprie - tary information. Employers can no longer assume that a restrictive covenant will prevent a former employee from joining a competitor. Instead, they must be pre - pared to rely on trade secret law to protect the infor - mation that gives them a competitive advantage. As a result, trade secret claims are now frequently at the centre of disputes involving departing employees. In many cases, those claims are asserted alongside breach of contract claims based on restrictive cov - enants. See, eg, Arxada Holdings NA Inc. v Harvey , 351 A.3d 519 (Del. Ch. 2026) (suit for breach of restric - tive covenants and misappropriation of trade secrets against former employee); Imagine Grp., LLC v Bis- canti , No CV 25-1137-RGA, 2025 WL 3268486 (D. Del. 24 Nov 2025) (same). This “belt and braces” approach reflects a recognition that even where a restrictive covenant exists, its enforceability is not guaranteed. Imagine Grp., LLC v Biscanti , No CV 25-1137-RGA, 2025 WL 3268486 at *3-5 (D. Del. 24 Nov 2025) (dis - missing restrictive covenant claim for failure of consid - eration but retaining trade secret claim). Trade secret claims provide an additional basis for relief when there is evidence that the employee had access to sensitive information and may use that information in a com - peting role. The Defend Trade Secrets Act has also driven greater reliance on trade secret causes of action. By creating a uniform federal claim and allowing plaintiffs to sue
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