Schleppenbach: Takeaways from Early Trade Secrets RICO Actions
Since the Defend Trade Secrets Act (DTSA) became law in 2016, plaintiffs have brought dozens of Racketeer Influenced and Corrupt Organizations Act (RICO) claims using trade secret claims as predicates, with varying degrees of success. Shook Partner Jay Schleppenbach discusses key takeaways from these early cases in an article for the Summer 2025 issue of the American Bar Association’s Criminal Justice Magazine titled “The Costs of the Defend Trade Secrets Act and Trade-Secrets-Based RICO Litigation.”
In the article, Schleppenbach says the mixed record of success of DTSA-based RICO claims should come as no surprise because the same can be said of civil RICO claims generally. RICO claims “are technical, with multiple complex elements that have been subject to slightly different legal analyses in different jurisdictions,” he explains, adding that RICO claims should be expected to be challenging to plead and prove.
“Accordingly, DTSA plaintiffs should avoid unnecessarily adding RICO claims to their complaints, but instead conduct a careful cost/benefit analysis, weighing the likely strength of such a claim against its potential impact on the litigation,” he says.
Read the article at the American Bar Association >>
In the article, Schleppenbach says the mixed record of success of DTSA-based RICO claims should come as no surprise because the same can be said of civil RICO claims generally. RICO claims “are technical, with multiple complex elements that have been subject to slightly different legal analyses in different jurisdictions,” he explains, adding that RICO claims should be expected to be challenging to plead and prove.
“Accordingly, DTSA plaintiffs should avoid unnecessarily adding RICO claims to their complaints, but instead conduct a careful cost/benefit analysis, weighing the likely strength of such a claim against its potential impact on the litigation,” he says.
Read the article at the American Bar Association >>
