Short answer - yes, obviously.
Long answer - also yes, also obviously, but the timing is important.
The issue came to the fore in I-Mab Biopharma v. Inhibrx, Inc., C.A. No. 22-276-CJB (D. Del. Sept. 19, 2024) (Mem. Ord.). I-mAB is a DTSA action alleging the theft of about a dozen separate trade secrets. A few months back, the plaintiff went through a restructuring that resulted in several related entities now owning some or all of the trade secrets. The plaintiff then moved to add these entities as co-plaintiffs. Judge Burke denied the motion due to the potential for delay, given that the case was scheduled for trial int he near future.
Unsurprisingly then, the defendant moved to dismiss under rule 19, arguing that these related corporate entities were indispensable given their undisputed ownership rights in the trade secrets.
In what seems to be an issue of first impression in the district, Judge Burke denied the motion. As to the secrets where I-Mab remained a co-owner:
Defendants seem to suggest that, as a matter of law, a co-owner to a trade secret is a necessary party to a trade secret misappropriation action. However, Defendants have pointed to no legal authority establishing such a bright line rule, and indeed, as Plaintiff explains, the law does not seem to contain such a requirement[.]
Id. at 12 (internal citations omitted).
More interestingly, Judge Burke held that the plaintiff maintained standing to assert damages even for those secrets it no longer had any interest in, as long as it had owned the secrets when it filed the suit:
Plaintiff retorts that standing in trade secret cases is established at the time of filing, and because Plaintiff had ownership of Trade Secrets 2, 4 and 8 at the time of the alleged misappropriation and when it filed this lawsuit, then it has standing to maintain the suit. The Court agrees with Plaintiff, as its position aligns with the express language of the DTSA. The DTSA provides that “[a]n owner of a trade secret that is misappropriated may bring a civil action” pursuant to the DTSA. When used in a federal statute, “bring a civil action” means “to commence” an action. And when it commenced this lawsuit in March 2022 (a time in which the alleged misappropriation it complains of was said to be occurring), Plaintiff owned Trade Secrets 2, 4 and 8. Thus, Plaintiff complied with this ownership provision of the DTSA
Id. at 15-16 (internal citations omitted).
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