THE COURT MUST PLAY ITS INTERPRETATIVE ROLE: DEFENDING THE DEFEND TRADE SECRETS ACT’S EXTRATERRITORIAL REACH

The exact reach of the Defend Trade Secrets Act’s extraterritoriality provision has yet to be interpreted by the courts. If United States securities, trademark, and antitrust law serves as any indication of what is to be expected, the Defend Trade Secrets Act may be subject to an inconsistent array of interpretation. When faced with interpreting the extraterritorial scope of the Defend Trade Secrets Act for the first time, the court must set a strong precedent by enacting a single, uniform effects test that will not falter when applied in different circumstances and by different circuits. Courts interpreting United States securities, trademark, and antitrust law have enacted a wide variety of effects tests for interpreting extraterritoriality. Generally, the language of the effects test being applied has such an expansive interpretation, causing the courts to struggle with applying it in a consistent manner. Using trade secret policy, legislative intent, and the history of the Defend Trade Secret Act as a guide, this paper encourages the courts to enact a “misappropriation effects” test when determining the extraterritorial reach of the statute. A “misappropriation effects” test will take away the emphasis on the level of effects necessary to give rise to a showing of effects, and focus the inquiry on the nature of effects necessary to give rise to a showing of effects sufficient to confer extraterritorial reach. The “misappropriation effects” test shifts the focus to the specific misappropriation effects that Congress sought to protect against in proscribing the Defend Trade Secrets Act. It is imperative that the courts interpret the extraterritoriality provision of the Defend Trade Secrets Act with care so that it does not confine within the United States, what Congress intended to reach abroad