Searching for Standing: Are Improper Acquisition or Threatened Misappropriation of Trade Secrets Cognizable Injuries Sufficient for Article III Standing?
Trade secret litigation is on the rise. Meanwhile, modern standing cases have forced courts and commentators to reevaluate what sorts of legal injuries bring factual injuries with them, such that federal courts can adjudicate them as a “case” or “controversy” under Article III of the Constitution.
This Comment studies the intersection of Article III standing and federal trade secret law. It is the first piece to provide a taxonomy of trade secret violations and factual injuries in the shadow of standing doctrine’s demand for an injury-in-fact. This Comment submits a bold yet plausible claim: Article III standing should be in question for certain violations of the Defend Trade Secrets Act (DTSA)—improper acquisition and threatened misappropriation. Challenging standing in these cases will ensure that federal courts remain within their constitutional mandate. Moreover, challenging standing in certain trade secret cases will help encourage employee mobility in the marketplace.
While this Comment urges courts to assure themselves of Article III standing in these cases, it acknowledges that plaintiffs will have forceful responses to standing arguments made against them. A back-and-forth rally between plaintiffs and defendants will help courts reach the correct results, as the adversarial process intends. At bottom, this piece challenges what some seem to take as a given: that trade secret plaintiffs who plausibly allege a violation of the DTSA have necessarily suffered an injury-in-fact.