The DTSA at Ten: Lessons From a Decade of DTSA Litigation

The Defend Trade Secrets Act (DTSA) was signed into law on May 11, 2016, creating a federal civil cause of action for the misappropriation of trade secrets occurring from that date forward. The DTSA was passed with the express purpose of creating a “single, national standard for trade secret misappropriation with clear rules and predictability for everyone involved.”¹ It was intended to “equip companies with the additional tools they need to protect their proprietary information, to preserve and increase jobs and promote growth in the United States, and to continue to lead the world in creating new and innovative products, technologies, and services.”² The DTSA’s 10th anniversary provides an opportunity to reflect on certain trends and lessons learned in the 10 years of litigation since the law was passed and explore whether there is a single, national standard for trade secret claims.

Ten Takeaways From 10 Years of DTSA Litigation

1. The DTSA has led to an increase in trade secret litigation. Of just over 13,000 trade secret matters filed in federal courts between 2016 and 2025, 9,500 included DTSA claims.³ Prior to the passage of the DTSA, trade secret case filings were relatively steady at around 900 cases per year, but such filings rose by over 30% in 2017, the first full year following the passage of the DTSA.⁴ While federal trade secret matters declined from 2020 to 2022, they have since rebounded; more than 1,500 complaints with trade secret misappropriation claims were filed in federal courts in 2025, the highest on record.⁵
2. State law still has an outsized influence in trade secret cases. While the DTSA empowered plaintiffs to bring trade secret civil actions in federal court, it does not preempt state law, so plaintiffs often assert state-law claims alongside DTSA claims. While there are some exceptions,⁶ federal courts rely heavily on state law involving common law or Uniform Trade Secrets Act claims.
3. There is a circuit court split as to how much specificity is required in identifying the alleged trade secrets at the pleading stage. Some courts reject broad, sweeping claims about confidential information and dismiss DTSA claims pre-discovery if a trade secret is not identified with sufficient particularity to enable defendants to delineate what they are accused of misappropriating.⁷ Other courts have held that the “DTSA does not require a plaintiff to identify with particularity its alleged trade secrets from the start,” instead finding the question of “whether a plaintiff has sufficiently particularized a trade secret under DTSA [as] usually a matter for summary judgment or trial.”⁸ Pleading standards must be considered and assessed when determining in which jurisdiction to assert a DTSA claim.
4. There is a circuit court split on whether unjust-enrichment damages for avoided costs are recoverable. The Second Circuit concluded that unjust-enrichment damages are only recoverable if the compensable harm to a plaintiff extends beyond their actual losses, finding the award of damages for avoided costs to be punitive.⁹ In contrast, the Fifth Circuit held that unjust-enrichment damages are appropriate for the costs that a defendant avoided in development by misappropriating trade secrets and that separate proof of a compensable, quantifiable injury suffered by the trade secret holder is not necessary.¹⁰ The Supreme Court denied certiorari on the issue, leaving the question of recoverability of avoided costs even without proof of a compensable harm to a plaintiff as another factor to consider in determining where to file.
5. Standing to sue requires ownership under the DTSA. While lawful possessors can sue for misappropriation of trade secrets under many state laws,¹¹ the DTSA is explicit that only an “owner” of a trade secret that is misappropriated may bring a civil action.¹²
6. The DTSA made extraterritorial enforcement more practical. In Motorola Solutions, Inc. v. Hytera Communications Corporation Ltd., the Seventh Circuit ruled that Congress intended the DTSA to cover misappropriation with limited ties to the United States.¹³ The Court found that the DTSA overcame an ordinary presumption against extraterritorial application because the statue expressly states that it applies to conduct outside of the United States as long as “an act in furtherance of the misappropriation was committed in the United States.”¹⁴ No other circuit court has weighed in on the issue. State trade secret laws generally have not had extraterritorial reach, so the Seventh Circuit’s interpretation of the extraterritorial reach of the DTSA filled an important gap regarding trade secret misappropriation committed by foreign actors.
7. The DTSA has proven to be more permissive of employee mobility than some state laws. While there is no consensus on whether the DTSA universally prohibits the application of the “inevitable disclosure” doctrine, the statute is explicit that injunctive relief to prevent misappropriation can be granted only if it would not “prevent a person from entering into an employment relationship, and that conditions placed on such employment shall be based on evidence of threatened misappropriation, and not merely on the information the person knows.”¹⁵ A court could still potentially create limits on the type of work a former employee may do for a new employer, but it cannot enjoin the employee from working for a competitor under the DTSA.
8. Companies should have an understanding about what “reasonable measures” are taken to protect trade secrets. What constitutes a “reasonable measure” is dependent on the nature of a trade secret. Simply requiring an NDA or employment contract with a confidentiality provision tailored to the trade secret at issue can be sufficient in some cases,¹⁶ while others may require multiple layers of protection — for example, labeling the protected information as confidential, password protection, and other efforts to internally identify information as secret within a company.¹⁷ While no single measure is dispositive in and of itself, clear documentation of how a company protects its information is the easiest way to demonstrate reasonable measures taken to protect a trade secret.
9. The DTSA is silent as to whether artificial intelligence (AI) output can be a trade secret without a human creator. While courts have found that human authorship is a “bedrock requirement of copyright” under the Copyright Act¹⁸ and that an inventor named in a patent must be an “individual” or natural person under the Patent Act,¹⁹ there is no codified human authorship or inventorship required under the DTSA.
10. AI is changing the nature of what information may be “readily ascertainable by proper means.” The number of claims related to AI technology is steadily increasing. AI has enabled faster — and sometimes more cost-effective — development of software, which may be relevant to what constitutes “readily ascertainable by proper means” in the context of a trade secret and defenses to misappropriation claims such as independent development. Large language models also may be susceptible to certain types of attacks or other hacking efforts, raising questions about what protections are “reasonable” in the age of AI.

Ten years in, the DTSA has clearly made federal court the preferred forum for trade secret disputes, but it has not yet produced the “single, national standard” promised by Congress. With the rise of AI, the next decade will test the statute against facts its drafters likely never contemplated.