Whistle-blower immunity and notice by employers The DTSA provides employees immunity against criminal and civil liabilities under any federal and state trade secret laws, for disclosures made to government officials or to an attorney for the sole purpose of reporting or investigating a violation of the law or if it is filed under seal in a lawsuit. 16 The law also requires employers to notify employees of such immunity in any contract or agreement that governs the use of a trade secret or confidential information. 17 Employees include individuals working as consultants or contractors. 18 If the employer fails to provide notice, then it may not recover exemplary damages or attorney’s fees in an action against the employee.

19The employer may comply with the notice provision by cross-referencing policy documents concerning such protections that have been provided to the employee. Conclusion The DTSA provides a long-awaited federal forum and remedy for trade secret disputes. It likely will have farreaching consequences, and companies should evaluate their policies and litigation options in light of the new law. One immediate step is for companies to give notice of the whistle-blower immunity provisions to employees and contractors who currently are subject to nondisclosure obligations. In theory, this encompasses employees who do not have direct access to the trade secrets, but nonetheless have entered into nondisclosure agreements with the trade secret holder.

While the DTSA does not specify the precise content of such notices, failure to provide them ultimately may limit the trade secret owner’s ability to recover the full range of remedies available under the DTSA. White & Case LLP 1155 Avenue of Americas New York, New York 10036-2787 United States T +1 212 819 8200 In this publication, White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities. This publication is prepared for the general information of our clients and other interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice. 16 17 18 19 Id.

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