Only two states, New York and Massachusetts, have yet to adopt some form of the Uniform Trade Secrets Act (UTSA). Those states are commercial and biotechnology hubs that account for a significant amount of trade secrets litigation. As such, practitioners who handle trade secrets litigation should be aware of the key differences between the UTSA and the common law of Massachusetts and New York.
In Massachusetts and New York, trade secret protections are a mix of common law and limited statutory law. This means that there are significant differences between the familiar UTSA and trade secrets law in Massachusetts and New York. First, and most importantly, the types of information that qualify for trade secret protection differ. One key distinction is that Massachusetts and New York both require "continuous use" of a trade secret to qualify for protection. Second, Massachusetts and New York common law does not allow for the liberal cost-shifting provisions of the UTSA. Third, Massachusetts and New York are hesitant to apply the "inevitable disclosure" doctrine to enjoin the threatened misappropriation of trade secrets held by a former employee.