18 U.S.C. § 1833

Section 1833(2) does not provide immunity from civil liability for trade secret misappropriation under California law.

MONEX DEPOSIT CO. v. Gilliam · filed 2010-01-25(2)

Jason Gilliam also argues that he has immunity to Monex’s misappropriation claims under 18 U.S.C. § 1833(2). This statute relates to federal criminal law and has nothing to do with civil liability for trade secret misappropriation under California law.

Section 1833(b) protects a person from trade-secret liability for a confidential disclosure to an attorney made solely to report or investigate a suspected legal violation, but the defense cannot support dismissal when the complaint does not establish its facts.

Unum Group v. Loftus · filed 2016-12-06(b)

Section 1833(b) shields individuals from liability under any federal or state trade secret law for disclosure of a trade secret made “in confidence ... to an attorney ... solely for the purpose of reporting or investigating a suspected 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 and declines to dismiss Counts I and II.

Section 1833(b)(1)(A) immunizes an individual from liability under state trade secret law for a confidential disclosure to an attorney made solely to report or investigate a suspected violation of law.

Phonexa Holdings v. O'Connor CA2/5 · filed 2022-08-26(b)(1)(A)

The Defense of Trade Secrets Act provides, in pertinent part, that “[a]n individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that— [¶] (A) is made— [¶] (i) in confidence . . . to an attorney; and [¶] (ii) solely for the purpose of reporting or investigating a suspected violation of law . . . .” (18 U.S.C. § 1833(b)(1)(A).) ... Nothing in the record indicates O’Connor or Halley shared trade secrets as defined in either the state or federal trade secrets statutes with anyone other than O’Connor’s attorney.16 ... On this record, O’Connor and Halley have accordingly defeated Phonexa’s CUTSA claim as a matter of law.

Section 1833(b)(1)(A)(ii) protects a trade-secret disclosure made solely to report or investigate a suspected violation of law.

FirstEnergy Corp. v. Pircio · filed 2021-03-08(b)(1)(A)(ii)

Unlike the authorities on which Plaintiffs rely, the pleadings here contain sufficient information to make a determination at the pleading stage that Mr. Pircio’s actions fall within the statutory protection of Section 1833(b)(1)(A)(ii).

Section 1833(b)(1) can remove liability for a protected act without erasing the fact that the act occurred.

United States of America ex rel. Gill v. CVS Health Corp. · filed 2024-02-02(b)(1)

The plaintiff then adds that the allegation is not legally correct because, as a whistleblower, he is immune from civil and criminal liability for misappropriation or disclosure of such company materials under 18 U.S.C. § 1833(b)(1). Immunity, however, does not erase the deed, it erases liability for the deed.

Section 1833(a)(1) excludes otherwise lawful activity conducted by a state governmental entity from the DTSA's prohibition and private right of action, including an official-capacity suit to enjoin such state activity.

Fast Enterprises, LLC v. Pollack · filed 2018-09-21(a)(1)

The DTSA contains a limitation on that jurisdictional grant, however, as it “does not prohibit or create a private right of action” in regard to “any otherwise lawful activity conducted by a governmental entity of . . . a State.” 18 U.S.C. § 1833(a)(1). ... The Court notes that the “otherwise lawful” language applies only to the activities of governmental entities, not private parties, and thus it appears that Congress specifically intended to circumscribe the DTSA so it would not interfere with the policy choices made by state governments in regard to their own operations. ... Therefore, the Court concludes that the state of Massachusetts is the real party-in-interest, and that the DTSA does not permit a suit against Pollack where the action that FAST is seeking to enjoin is the “otherwise lawful” activity of the state of Massachusetts. ... Thus, based on the plain text of the DTSA and the claims advanced by FAST, the Court must conclude that FAST seeks to enjoin the “otherwise lawful” activity of the state of Massachusetts, and because the DTSA does not create a cause of action in such circumstances, the case is dismissed.

Section 1833(a)(1) provides that the DTSA does not prohibit or create a private right of action concerning otherwise lawful activity by a state governmental entity, including state disclosure authorized by state law.

Pharmaceutical Research and Manufacturers of America v. Stolfi · filed 2024-03-19(a)(1)

But it is not clear that disclosure would be misappropriation under the DTSA. The DTSA defines misappropriation, in part, as disclosure of a trade secret of another without express or implied consent by a person who, at the time of disclosure, knew or had reason to know that the knowledge of the trade secret was acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret. 18 U.S.C. § 1839(5). DCBS is not under an absolute duty to maintain secrecy because HB 4005 permits disclosure in certain circumstances. Because disclosure under the public-interest exception would not constitute misappropriation under the DTSA, then it would be possible to comply with both sets of laws. Likewise, taken on its face, the saving clause in § 1833(a)(1) would prevent PhRMA’s members from bringing a claim under the DTSA for the state’s disclosure of its trade secrets. It is possible to comply with both statutes.

Section 1833(a)(1) exempts otherwise lawful government activity, including authorized searches, from DTSA liability.

Naicom Corporation v. Dish Network Corporation · filed 2024-03-29(a)(1)

The Court concludes that Plaintiffs have not adequately impugned the validity of the warrants and the Federal Defendants’ conduct is thus exempt from DTSA liability as authorized law enforcement activity.

Section 1833(a)(1) excludes otherwise lawful activity conducted by a governmental entity from the DTSA, so a private DTSA claim cannot challenge that activity.

Naicom Corporation v. Dish Network Corporation · filed 2024-03-29(a)(1)

While the DTSA does provide a private right of action for owners “of a trade secret that is misappropriated . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce,” 18 U.S.C. § 1836, this right of action cannot be used to challenge “otherwise lawful activity conducted by a governmental entity of the United States, a State, or a political subdivision of a State.” Id. § 1833(a)(1). The Court dismisses Plaintiffs’ DTSA claim.

Section 1833(b)(1) may immunize a disclosure of trade secrets to the government or an attorney, but the disclosure must be solely for reporting or investigating a suspected violation of law.

Sorensen v. Polukoff · filed 2020-04-07(b)(1)

This provision may immunize Defendants from liability for their disclosure of the hard drive to the Department of Justice and Polukoff’s disclosure to attorneys for possible investigation of False Claims Act violations. However, it cannot be seriously argued that all the allegations in the Complaint demonstrate that the disclosure of the alleged trade secrets was “solely for the purpose of reporting or investigating a suspected violation of law.”

Section 1833(b)(3)(C) bars an employer that failed to include the required notice from recovering exemplary damages or attorney fees.

GARCIA v. VERTICAL SCREEN, INC. · filed 2020-05-22(b)(3)(C)

And to the extent Garcia argues the trade secret counterclaims are barred by the lack of such a notice, this argument fails because a failure to comply with the notice requirement merely prohibits the recovery of punitive damages and attorney’s fees. See 18 U.S.C. § 1833(b)(3)(C) (“If an employer does not comply with the notice requirement in subparagraph (A), the employer may not be awarded exemplary damages or attorney fees . . . .”).

Section 1833(b)(3)(A) provides that an employer who fails to give the required immunity notice in an employee confidentiality agreement may not recover exemplary damages or attorneys’ fees.

Hamilton v. JUUL Labs, Inc. · filed 2020-09-11(b)(3)(A)

To be sure, Juul’s NDA does not contain a DTSA immunity clause. But under the DTSA, failure to include this immunity clause does not make the entire confidentiality agreement unlawful—instead, 18 U.S.C. section 1833(b)(3)(A) states that non-compliance means “the employer may not be awarded exemplary damages or attorneys fees[.]” Thus, failure to include a DTSA immunity clause does not render the agreement unlawful; it waives certain damages.

Section 1833(b)(3)(C) bars an employer from recovering exemplary damages or attorney’s fees from an employee when the required whistleblower notice is absent, subject to the statute’s temporal limitation for contracts entered into or updated after enactment.

Quintara Biosciences, Inc. v. Ruifeng Biztech Inc. · filed 2020-10-16(b)(3)(C), (b)(3)(D)

Indeed, though Subsection 1833(b)(3)(C) states that “employer may not be awarded exemplary damages or attorney fees” if it “does not comply with the notice requirement,” the next subsection, 1833(b)(3)(D), cabins this limitation to “to contracts and agreements that are entered into or updated after the date of enactment of this subsection.” ... Absent any allegation when Wong, Li, and Shao signed Quintara’s NDA, the application of § 1833(b) remains speculative and does not fairly put these defendants on notice of their potential liability. ... On these pleadings, Quintara may not recover exemplary damages and attorney’s fees from defendants Wong, Li, and Shao.

Section 1833(b)(2) provides immunity for certain confidential disclosures of trade-secret information to an attorney or in a retaliation lawsuit, subject to sealing and nondisclosure conditions, and the immunity is an affirmative defense that the defendant must establish; it does not create a private retaliation cause of action.

Ramirez Capital Services, LLC v. McMahan · filed 2021-12-14(b)(2)

The DTSA includes provisions that protect the confidentiality of trade secrets in a DTSA proceeding, for example, the DTSA immunizes individuals from liability under federal and state law for certain confidential disclosures of trade secret information. 18 U.S.C. § 1833(b). Three types of disclosure are protected, but relevant here is: “a disclosure to an attorney or in a court proceeding by an individual who files a lawsuit for retaliation by an employer for the individual’s reporting of a suspected violation of law as long as any court filings are made under seal and the individual does not otherwise disclose a trade secret except pursuant to a court order.” 18 U.S.C. § 1833(b)(2). Such immunity is an affirmative defense, and entitlement to the immunity must be established by the defendant. 7 PATENT LAW PERSPECTIVES § 16.2 DEFEND TRADE SECRETS ACT (collecting cases). McMahan misconstrues this language as recognizing a lawsuit for retaliation by a whistleblower (Dkt. #21 ¶ 22). However, the Court has found nothing in the language of the DTSA or the caselaw to suggest the DTSA creates a private cause of action for retaliation.

Section 1833(b)(3)(A) requires an employer to include notice of whistleblower immunity in an employee agreement governing trade-secret use; failure to give notice bars exemplary damages and attorney’s fees under § 1833(b)(3)(C), while § 1833(b) immunity does not cover using trade secrets against their owner.

Knox Trailers, Inc v. Clark · filed 2022-01-25(b)(3)(A), (b)(3)(C), (b)

Section 1833(b)(3) mandates that employers “provide notice of the [whistleblower] immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” 18 U.S.C. § 1833(b)(3)(A). Failure to do so precludes an award of exemplary damages and attorney’s fees. Id. § 1833(b)(3)(C). ... Furthermore, DTSA only immunizes defendants for their disclosure of trade secrets to the government, not for their use of such trade secrets against the owner. ... Plaintiffs’ complaint is devoid of allegations suggesting that DTSA immunizes Defendants. ... Furthermore, Plaintiffs do not allege that Defendants disclosed trade secrets to the government. Rather, they allege that Defendants misappropriated their trade secrets and used the trade secrets to compete with them—an activity that falls outside the bounds of § 1833(b). See McMahan, 2021 WL 5907791, at *4. As a result, the Court declines to dismiss Plaintiffs’ DTSA claims at this juncture. If Defendants wish to raise this affirmative defense, they may do so at the summary-judgment stage.

Section 1833(b)(3)(A) requires an employer to give employees notice of the whistleblower immunity in an agreement governing the use of a trade secret or other confidential information, and failure to provide that notice bars DTSA exemplary damages and attorney fees.

12 Marketing, LLC v. White · filed 2025-08-07(b)(3)(A), (b)(2)

Finally, the Ashworth Defendants move to dismiss Plaintiff’s request for exemplary damages and attorneys’ fees under DTSA on the grounds that 12 Marketing did not plead that it provided Defendants with the required notice under 18 U.S.C. § 1833(b)(3)(A). ... 18 U.S.C. § 1833(b)(3)(A) requires an employer to “provide notice of the immunity set forth in [18 U.S.C. § 1833(b)(2)]7 in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” Section 1833(b)(3)(C) further provides that “[i]f an employer does not comply with the notice requirement . . . the employer may not be awarded exemplary damages or attorney fees [under DTSA] in an action against an employee to whom notice was not provided.” Plaintiff does not contest that it did not provide the required notice to Ashworth Defendants. Accordingly, its claims for exemplary damages and attorneys’ fees under DTSA are dismissed.

Section 1833(b)(1) protects an individual from federal or state trade-secret liability for confidentially disclosing a trade secret to a government official or attorney solely to report or investigate a suspected legal violation.

Rozdilsky · filed 2026-02-20(b)(1)

An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that— (A) is made . . . (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law[.] ... On its face, if the terms of this provision apply, it bars liability under both the federal DTSA and a state trade secret law such as the MUTSA. ... Thus, where LSI has provided no evidence showing that Rozdilsky retained these documents for some purpose other than to report or investigate a suspected violation of the law, the Court concludes that there is insufficient evidence for a reasonable jury to conclude that Rozdilsky retained the disputed documents in a manner not covered by the DTSA’s immunity provision. ... the Court will grant Rozdilsky’s Motion for Summary Judgment as to the misappropriation of trade secrets claims under both the DTSA and the MUTSA.

Section 1833 does not create a civil discovery privilege that excuses compliance with a forensic imaging order.

MPHASIS Corporation v. Rojas · filed 2025-08-20

Finally, Defendant claims “protected status” under federal whistleblower statutes, inter alia, § 806 of the Sarbane-Oxley Act of 2002, 18 U.S.C. § 1513(e), and the Defend Our Trade Secrets Act, 18 U.S.C. § 1833. ... None of the whistleblower statutes makes any reference to civil discovery protections, nor would they excuse Defendant’s refusal to comply with the Imaging Order.