USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
claim to be established (N. Atl. Instruments, Inc v Haber, 188 F.3d 38, 44 (2d Cir. 1999)). Another option is to bring a claim of trade secret misappropriation in the United States International Trade Commission (ITC) if prod - ucts embodying a misappropriated trade secret are imported into the USA. While the ITC can - not award damages for trade secret misappro - priation, it does have the authority to exclude imported goods that are produced through the exploitation of misappropriated trade secrets as an “ unfair method of competition ” or “ unfair acts ” in violation of the Tariff Act (19 USC Sec - tion 1337). ITC investigations often proceed much faster than district court litigation, and trade secret owners should consider whether the benefit of securing a speedy remedy is offset by the constrained timeline in which to develop the evidence needed to support a finding of misap - propriation. 5.4 Jurisdiction of the Courts A trade secret claim may be initiated in feder - al court under the DTSA if the court is capa - ble of exercising personal jurisdiction over the defendant in the chosen forum and if the venue is proper. State law claims may be appended to a DTSA claim or brought on their own in federal court if there is complete diversity of citizen - ship between parties (ie, no plaintiff shares the citizenship of any defendant and vice versa) and the plaintiff alleges an amount in controversy 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 defendant lives, is incorporated or has significant business operations, and where the alleged acts of misappropriation occurred. A trade secret owner faced with acts of misappro - priation by a foreign corporation may need either to sue a local subsidiary of the foreign corpora - tion or to be prepared to show that the foreign corporation has sufficient minimum contacts with the chosen forum state, such as transact - ing business within the state or competing with the trade secret owner in that state. Prospective trade secret claimants should also analyse any relevant contracts in order to be aware of any agreements related to specific jurisdictional requirements or admissions or the applicability of any arbitration clauses. 5.5 Initial Pleading Standards In federal courts, the pleading standards for trade secret misappropriation claims are expressly governed 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 pro - tectable trade secret, the information derives value from being secret and the owner took rea - sonable 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 particularity before proceeding to discovery – eg, Torsh, Inc v Audio Enhance - ment, Inc, 2023 WL 7688583 (E.D. La. Nov. 15, 2023). While only California (Cal. Civ. Proc. Sec - tion 2019.210) and Massachusetts (M.G.L. c. 93 Section 42D(b)) impose statutory reasonable particularity requirements, the growing consen -
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