Why the Burden of Proving Causation Should Shift to the Defendant Under the New Federal Trade Secrets Act

For years courts in trade secret misappropriation cases have filled up a graveyard with claims that did not account for every possible alternative cause of the Plaintiff’s losses. The result is perverse: the more disruptive the Defendant’s misappropriation, the less likely the Plaintiff will be able to show the jury a clear picture of what happened and prove “but for” causation. But the new federal law frees courts from those cases and from the state misappropriation statutes that produced them. What is needed now is a shift in thinking, and a shift in a burden.