Note: This page covers information specific to Virginia. See the Trade Secrets overview for more general information.
The Virginia Uniform Trade Secrets Act ("VUTSA") is located at chapter 26 of title 59.1 of the Virginia Code. VUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.
Like the Uniform Trade Secret Act, VUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.
Va. Code § 59.1-336 defines the key terms of VUTSA:
Trade secret means information, including but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that:
- 1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
- 2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
- 1. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
- 2. Disclosure or use of a trade secret of another without express or implied consent by a person who
- a. Used improper means to acquire knowledge of the trade secret; or
- b. At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
- (1) Derived from or through a person who had utilized improper means to acquire it;
- (2) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use;
- (3) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
- (4) Acquired by accident or mistake.
Improper means includes theft, bribery, misrepresentation, use of a computer or computer network without authority, breach of a duty or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
Note that the First Amendment may protect you from civil liability or criminal prosecution for publishing trade secrets, provided you were not engaged in the improper conduct that led to the secrets' misappropriation. This potential protection stems from a case called Bartnicki v. Vopper, 532 U.S. 514 (2001). See Publishing Trade Secrets for more information about this case.
For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.
If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:
- Injunctive Relief: VUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Va. Code § 59.1-337. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
- Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See Va. Code § 59.1-338.
- Attorney's Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. See Va. Code § 59.1-338.1.