Pursuant to 19 U.S.C. § 1337, an employer may adopt, before the ITC and via a Section 337 investigation, the DTSA (Defend Trade Secrets Act) as the statute of choice to address and remedy misconducts of trade secret loss or misappropriation. Including the mandate to prohibit the importation of articles into the U.S., the ITC is tasked with addressing import-related unfair trade practices as a quasi-judicial administrative agency. Pursuant to 19 U.S.C. § 1337(a)(1)(A), when making a Section 337 complaint regarding the misappropriation of trade secrets, the complainant is generally required to demonstrate that:
- A domestic industry related to the imported article has been injured-
- A trade secret has been misappropriated as issue-and-
- An article was imported into the U.S. in relation to unfair business acts such as theft and/or misappropriation of trade secrets or unfair competition techniques.
Ideally, a complainant is not required to show that an alleged act of trade secret misappropriation took place in the U.S. in a Section 337 investigation. Furthermore, while a final adjudication is reached within 16 months after the investigation was initiated, Section 337 investigations are known to move very fast. It is recommended that an employer should consider bringing a DTSA action before the ITC where a theft/loss/misappropriation of trade secrets relates to articles being imported into the U.S. and the employer (a permanent resident or citizen of the U.S.) has been such a victim overseas.
In Part IX of this series, we will move the discussion forward by providing you with an overview of the “Trade Secret Misappropriation Claims under State & Common Law.”
As usual, while you should strive to be #UnusuallyMotivated, stay tuned for more education, training, and legal guidance. In the interim, reach out to us with questions and/or comments on our website at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.