On December 16, 2020, the U.S. Court of Appeals for the Ninth Circuit held for the first time in Attia v. Google LLC that a misappropriation claim under the Defend Trade Secrets Act of 2016 (“DTSA”) may be brought for a misappropriation that started prior to the enactment of the DTSA as long as the claim also arises from post-enactment misappropriation or from the continued use of the same trade secret. The decision further expands the reach of the DTSA and provides a blueprint for other courts to rule along the same lines.
The case, which was originally filed in the Northern District of California in 2014, was brought by an architect and his firm against Google under the DTSA, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state trade secret and contract laws for alleged misappropriation of the plaintiff’s “Engineered Architecture” technology. Although the Ninth Circuit affirmed the District Court’s dismissal of the DTSA claim on the grounds that the architect lacked standing under the DTSA because Google’s 2012 patent applications based on the “Engineered Architecture” technology placed the contested information in the public domain, extinguishing any trade secret claims over it, the Ninth Circuit’s ruling was significant for other reasons, namely the expansion of the DTSA’s potential applicability.
The DTSA, enacted in 2016, allowed plaintiffs to bring a federal claim for any trade secret misappropriation that occurred on or after May 11, 2016. With its decision in Attia v. Google LLC, however, the Ninth Circuit confirmed that the continued use doctrine under DTSA could apply to trade secret misappropriation that first occurred prior to May 11, 2016 but continued after that date.
The Ninth Circuit explained that the Uniform Trade Secrets Act (“UTSA”), on which many states have based their trade secrets laws, includes an anti-continued use provision, but the DTSA does not have a similar provision despite the legislature’s awareness of the UTSA. This court held that the apparently intentional omission of an anti-continued use provision indicates that the DTSA was not intended to be limited in this way. The Ninth Circuit also reasoned that the DTSA’s statement that “a continuing misappropriation constitutes a single claim of misappropriation” only relates to the statute of limitations and does not determine that a misappropriation claim cannot be brought based on a continued use.
This decision potentially expands liability under the DTSA for defendants. For one, it affirmatively provides for federal liability in the Ninth Circuit for misappropriation that occurred prior to the DTSA’s enactment as long as that misappropriation continued until after May 11, 2016. Additionally, its concise and pragmatic reasoning offers a guide for federal district and circuit courts that have not yet considered the applicability of the continued use doctrine to the DTSA.
 See Opinion at 2 and 5.
 See Opinion at 2. The Ninth Circuit also affirmed the Northern District’s dismissal of the RICO claims, reasoning that the plaintiff did not “identify two sufficiently related predicate acts” as required to establish a pattern of racketeering. See Opinion at 3.
 With its enactment, the DTSA also added trade secret misappropriation to the list of predicate acts under criminal laws like RICO.
 See Opinion at 8-9.
 See id.
 See id.