The Defend Trade Secrets Act grants immunity from any federal or state trade secret law to anyone who discloses a trade secret to an attorney or government official “solely for the purpose of reporting or investigating a suspected violation of law.”

A recent district court decision holds that a defendant must present evidence justifying the immunity. This means the defense likely will not be available on a motion to dismiss when the court may consider only the complaint and facts subject to judicial notice.

In Unum Group v. Loftus, 2016 WL 7115967 (D. Mass. Dec. 6, 2016), a defendant caught on video removing company trade secrets moved to dismiss the complaint, and opposed a motion for a preliminary injunction, by invoking the DTSA immunity provision. The defendant gave all the trade secrets to his attorney and alleged he removed them solely to investigate company wrongdoing.

The district court in Massachusetts deemed the DTSA immunity to be an affirmative defense and held that, “[a]s a general rule, a properly raised affirmative defense can be adjudicated on a motion to dismiss so long as (i) the facts establishing the defense are definitively ascertainable from the complaint and the other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.”

Thus, the court denied the motion to dismiss and granted the preliminary injunction, finding that “the record lacks facts to support or reject his affirmative defense at this stage of litigation. There has been no discovery to determine the significance of the documents taken or their contents . . . . Further, it is not ascertainable from the complaint whether Loftus turned over all of Unum’s documents to his attorney, which documents he took and what information they contained, or whether he used, is using, or plans to use, those documents for any purpose other than investigating a potential violation of law. Taking all facts in the complaint as true, and making all reasonable inferences in favor of Unum, the court finds the complaint states a plausible claim for trade secret misappropriation . . . .”

What evidence would be sufficient upon summary judgment to support the immunity defense remains to be seen.