A female St. John’s University (SJU) student Jane Doe (Doe) filed a complaint with the university that accused the plaintiff, John Roe, of sexually assaulting her while the two were studying abroad in Paris, which was a potential violation of the SJU’s sexual misconduct policy. SJU procedure is that those accused of misconduct undergo a “Conduct Hearing” (Hearing) overseen by a “Conduct Board” (Board), during which the Board will look at the available evidence relating to the accusation. The evidentiary standard at a Hearing is preponderance of the evidence, which is far lower than the one applied to criminal sexual assault charges, and there is no requirement for Hearings to strictly abide by the legal rules of evidence.

A DNA sequencing company in California and a rotary die cutting manufacturer in North Carolina both sued former business partners for stealing trade secrets under the Defend Trade Secrets Act (DTSA). Both complaints described the alleged secrets in general terms: customer databases, proprietary processes, confidential business information. One case moved forward. The other was dismissed at the pleading stage, the threshold at which a court decides whether a complaint states a viable claim. The difference was not the lawyering, the facts, or the statutory text; it was the forum.

The DTSA, enacted in 2016 as an amendment to the Economic Espionage Act (EEA), Pub. L. No. 114-153, 18 U.S.C. § 1836, created the first private civil federal cause of action for trade secret misappropriation. The statute defines “trade secret” broadly under 18 U.S.C. § 1839(3), but says nothing about how specifically a plaintiff must identify those secrets in a complaint. That silence has produced a circuit split that was, in hindsight, predictable from the statute’s design.

In 2017, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of California addressed the issue of specific jurisdiction in class action lawsuits. 582 U.S. 255 (2017). The case involved over 600 plaintiffs, including residents and nonresidents of California, who joined a lawsuit alleging product defects in a medication manufactured by Bristol-Myers Squibb (BMS). In response, BMS filed a motion to dismiss the nonresident plaintiffs’ claims for lack of personal jurisdiction. The Court agreed, holding that because the claims would remain the same with the exclusion of the nonresident plaintiffs, there was no basis for asserting specific jurisdiction over them. This decision reinforced the standard established in International Shoe Co. v. Washington that a defendant must have sufficient minimum contacts with the forum state for the court to assert personal jurisdiction. 326 U.S. 310 (1945).