NewYorkUniversity
LawReview
Current Issue

Volume 93, Number 4

October 2018

To Seize the Initiative: Assessing Constitutional Due Process Challenges to the Defend Trade Secrets Act’s Ex Parte Seizure Provision

Stephen D. Levandoski

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.