Defend Trade Secrets Act Immunization For Whistleblowers: More Effective Than The Average Flu Shot?

A unique feature of the Defend Trade Secrets Act (DTSA)—the federal statute opening federal courthouse doors to civil claims for trade secret misappropriation—is that it gives immunity from civil or criminal liability to whistleblowers under federal or state trade secret laws for disclosing a trade secret in confidence to a government official or an attorney "solely for the purpose of reporting or investigating a suspected violation of law."

Although the overall purpose of the DTSA was to enhance trade secret protection, Congress also did not want that protection to deter informants from tipping off law enforcement to illegal activity. When the DTSA was enacted two years ago, employers were deluged with advice to update their employee Nondisclosure Agreements (or policy handbooks) to include notice of this immunity, particularly because Congress conditioned the availability of exemplary damages and attorneys' fees for a successful DTSA misappropriation claim against