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1. (1) Are you in favor of a federal, statutory, private, civil cause of action for trade secret misappropriation?

 Yes
 26 (90%) 
 
 No
 (10%) 
 
 Abstain
 (0%)  

Total: 29

2. (2) Were you in favor of PATSIA as originally drafted, i.e., the version that was introduced on July 17, 2012 (S. 3389), which died in Committee?

 Yes
 (23%) 
 
 No
 11 (42%) 
 
 Abstain
 (35%) 
 

Total: 26

3. (3) Would you be in favor of PATSIA (or similar legislation) if appropriate amendments were made to the originally drafted version of PATSIA and that amended statute was introduced?

 Yes
 20 (77%) 
 
 No
 (0%)  
 Abstain
 (23%) 
 

Total: 26

4. (4) Should PATSIA (or similar legislation) establish a trade secret misappropriation cause of action based on conduct occurring outside the United States, but directed at a U.S. entity?

 Yes
 23 (88%) 
 
 No
 (12%) 
 
 Abstain
 (0%)  

Total: 26

5. (5) Should PATSIA (or similar legislation) establish a trade secret misappropriation cause of action where the trade secret was transmitted to a foreign country, government, entity or individual or to an entity or individual  located outside of the United States?

 Yes
 25 (96%) 
 
 No
 (4%) 
 
 Abstain
 (0%)  

Total: 26

6. (6) Should PATSIA (or similar legislation) establish a private cause of action for only those situations involving international trade secret misappropriation (i.e., excluding a private cause  of action for domestic trade secret misappropriation)?

 Yes
 (12%) 
 
 No
 19 (73%) 
 
 Abstain
 (15%) 
 

Total: 26

7. (7) Should PATSIA (or similar legislation) shift to the defendant the burden of proving (as an affirmative defense) that an alleged trade secret is readily ascertainable by proper means, rather than requiring the prosecutor (or plaintiff) to prove that the alleged trade secret is not readily ascertainable by proper means?

 Yes
 12 (46%) 
 
 No
 11 (42%) 
 
 Abstain
 (12%) 
 

Total: 26

8. (8) Should a party be able to bring a PATSIA (or similar legislation)-based cause of action in state court?

 Yes
 (35%) 
 
 No
 16 (62%) 
 
 Abstain
 (4%) 
 

Total: 26

9. (9) If you answered yes to question # 8, should a seizure order be a form of relief available to a party who has brought a PATSIA (or similar legislation)-based cause of action in state court?

 Yes
 (56%) 
 
 No
 (13%) 
 
 Abstain
 (31%) 
 

Total: 16

10. (10) Should obtaining a seizure order under PATSIA (or similar legislation), regardless of the court from which it is being sought, require satisfaction of the court’s preliminary injunction standard and establishment of the additional element that there is a significant risk that the defendant, if notified in advance, will spoliate, otherwise destroy or remove or fail to preserve relevant evidence?

 Yes
 19 (76%) 
 
 No
 (16%) 
 
 Abstain
 (8%) 
 

Total: 25

11. (11) Should a seizure order under PATSIA (or similar legislation), regardless of the court from which it is issued, require the appointment of a judicial officer to oversee execution of the order and to retain possession of any evidence that is seized until the defendant has an opportunity to challenge the seizure?

 Yes
 15 (58%) 
 
 No
 (27%) 
 
 Abstain
 (15%) 
 

Total: 26

12. (12) Should PATSIA (or similar legislation) preclude objections to venue, such as a challenge on the ground of forum non conveniens, when the action satisfies the venue requirements of 28 U.S.C. § 1391?

 Yes
 10 (40%) 
 
 No
 11 (44%) 
 
 Abstain
 (16%) 
 

Total: 25

13. (13) Should a bond have to be posted in order for the party, who has brought a PATSIA-based cause of action, to obtain a seizure order?

 Yes
 25 (96%) 
 
 No
 (0%)  
 Abstain
 (4%) 
 

Total: 26

14. (14) If you answered yes to question # 1 or # 3, should PATSIA (or similar legislation) include a requirement that the party asserting a trade secret(s)  identify the trade secret(s) with reasonable particularity before that party may take any discovery?  (See, e.g., California Code of Civil Procedure § 2019.210.)

 Yes
 21 (84%) 
 
 No
 (12%) 
 
 Abstain
 (4%) 
 

Total: 25

15. (15) If you answered yes to question # 1 or # 3, should PATSIA (or similar legislation) include a clause expressly stating that PATSIA (or similar legislation) does not preempt any state law-based, trade secret misappropriation cause of action?

 Yes
 18 (69%) 
 
 No
 (19%) 
 
 Abstain
 (12%) 
 

Total: 26

16. (16) If you answered yes to question # 1 or # 3, should PATSIA (or similar legislation) be consistent with the Trade Secret Clarification Act of 2012 insofar as it applies to a trade secret “that is related to a product or service that is used or intended for use in interstate or foreign commerce”?  (For context, § 2(a) of PATSIA (i.e., the “In General” section) would need to be amended to be consistent with the Trade Secret Clarification Act of 2012.)

 Yes
 16 (62%) 
 
 No
 (8%) 
 
 Abstain
 (31%) 
 

Total: 26

17. (17) With respect to the definition of “improper means” set forth in the originally drafted version of PATSIA (i.e., § 2(b)(3) of PATSIA), should “independent derivation” be changed to “independent development”?

 Yes
 18 (69%) 
 
 No
 (8%) 
 
 Abstain
 (23%) 
 

Total: 26

18. CFAA Survey


Total: 0

19. (1) Do you believe that the CFAA should be amended in any way?

 Yes
 23 (85%) 
 
 No
 (0%)  
 Abstain
 (15%) 
 

Total: 27

20. (2) Are you in favor of amending the CFAA such that an express, statutory definition of “without authorization” (or “authorization”) is set forth in the CFAA?

 Yes
 23 (82%) 
 
 No
 (0%)  
 Abstain
 (18%) 
 

Total: 28

21. (3) Are you in favor of amending the CFAA so that the Circuit split regarding the scope and meaning of “without authorization” is legislatively resolved?

 Yes
 26 (96%) 
 
 No
 (0%)  
 Abstain
 (4%) 
 

Total: 27

22. (4) Are you in favor of amending the CFAA so that the Circuit split regarding the scope and meaning of “exceeds authorized access” is legislatively resolved?

 Yes
 25 (89%) 
 
 No
 (4%) 
 
 Abstain
 (7%) 
 

Total: 28

23. (5) Are you in favor of amending the CFAA such that “without authorization” and “exceeds authorized access” expressly encompass, or expressly do not encompass, a situation where an employee (a) violates an applicable agreement with, contractual obligation to or duty to his or her employer or an applicable company policy (e.g., an agreement, obligation, duty or policy relating to computer or internet use) and (b) in so doing (or in connection with so doing), commits an act of trade secret misappropriation (i.e., unauthorized acquisition, disclosure or use of a trade secret)?   If you favor such an amendment, do you favor the CFAA encompassing or not encompassing such a situation?

 Yes
 19 (70%) 
 
 No
 (7%) 
 
 Abstain
 (22%) 
 

Total: 27

24. (6) Are you in favor of amending the CFAA such that “without authorization” and “exceeds authorized access” expressly encompass, or expressly do not encompass, a situation where a person (a) violates an agreement with or contractual obligation to an Internet service provider or Internet website (e.g., as set forth in an acceptable use policy or terms of service agreement) and (b) in so doing (or in connection with so doing), commits an act of trade secret misappropriation (i.e., unauthorized acquisition, disclosure or use of a trade secret)?   If you favor such an amendment, do you favor the CFAA encompassing or not encompassing such a situation?

 Yes
 15 (56%) 
 
 No
 (15%) 
 
 Abstain
 (30%) 
 

Total: 27

25. (7) If your answer to question # 5 or # 6 was for the CFAA not to encompass such a situation, then would your answer change if the actor’s (i.e., employee’s or person’s) conduct was undertaken for commercial advantage or private financial gain?

 Yes
 (9%) 
 
 No
 (22%) 
 
 Abstain
 16 (70%) 
 

Total: 23

26. Comments...

 
 18 (90%) 
 
 In response to Question 4, I believe the "exceeds authorized access" language should be deleted from the statute. I am in favor of Professor Orin Kerr's proposal, which available here: http://www.volokh.com/2013/01/20/proposed-amendments-to-18-u-s-c-1030/ For Question 5, I oppose criminal liability under the CFAA based upon violation of an internal company policy, which many employees do not read or fully comprehend. In addition, for Question 6, I oppose criminal liability based on violation of an ISP or website's terms of service agreement. Many people just click the "I Agree" button without reading or understanding the fine print in the ToS. While civil remedies are appropriate for this conduct, imposing criminal liability with the threat of up to 10 years imprisonment for a first offense is grossly excessive in my opinion.
 (5%) 
 
 
Happy to involved in future efforts on this front.
 
Robert Milligan Seyfarth Shaw 310-201-1579
 (5%) 
 

Total: 20

27. Thank you for your time. Please click the submit button below to have your vote counted. Thanks again!


Total: 0