# Mission Capital Advisors v. Romaka: The First DTSA Seizure, and Why It Took a TRO to Fail First

> The earliest civil seizure order under the Defend Trade Secrets Act issued only after a temporary restraining order failed, modeling seizure as the remedy of last resort rather than first resort.

Topic: Trade Secrets  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/mission-capital-advisors-v-romaka-first-dtsa-seizure/


When Congress armed trade-secret plaintiffs with the power to summon the U.S. Marshals through an ex parte order, observers braced for a flood of seizures. The first one came quickly, and its facts have shaped expectations ever since. In *Mission Capital Advisors LLC v. Romaka*, No. 1:16-cv-05878-LLS, the United States District Court for the Southern District of New York entered what is widely regarded as the first civil seizure order under the Defend Trade Secrets Act of 2016. The case was assigned to Judge Louis L. Stanton, but the emergency applications ran through the court's Part I: Judge Ronnie Abrams issued the initial restraining order, and Judge Lorna G. Schofield signed the seizure order on July 29, 2016. It issued only after the court had first tried the ordinary tool the statute prefers, and watched it fail.

## At a glance

- **Case:** *Mission Capital Advisors LLC v. Romaka*, No. 1:16-cv-05878-LLS
- **Court:** U.S. District Court for the Southern District of New York
- **Judges:** Louis L. Stanton (assigned judge); Ronnie Abrams (Part I, July 22 restraining order); Lorna G. Schofield (Part I, July 29 seizure order)
- **Complaint filed:** July 22, 2016
- **Seizure order:** July 29, 2016; seizure hearing set for August 5, 2016 before Judge Stanton
- **Relief sought:** Ex parte seizure under 18 U.S.C. § 1836(b)(2); a temporary restraining order; and an order to show cause on a preliminary injunction
- **What happened:** The court first denied seizure and issued a TRO; the defendant evaded personal service five times and failed to appear; the court then authorized seizure of the misappropriated contact-list data
- **Significance:** The first DTSA seizure order, and proof that the remedy surfaces only when Rule 65 relief demonstrably cannot reach the defendant

Mission Capital Advisors, a real estate finance advisory firm, alleged that a former employee, Christopher D. Romaka, its director of debt and equity finance, had downloaded the firm's confidential materials before his departure: internal financial and deal documents and, most damaging, the firm's entire client and contact list, said to run to more than 65,000 entries. A trade-secret plaintiff rarely has a cleaner story: a single, discrete, demonstrably copied data set, and a defendant who first claimed to have deleted it and then, after a forensic vendor found a trove of the files, stopped responding. That combination is what eventually justified the marshals' involvement. But the sequence by which the court got there is the case's enduring lesson.

## The court started with a TRO, not a seizure

Mission Capital did not walk out of court on day one with a seizure order. Although the firm applied for ex parte seizure under § 1836(b)(2) on July 22, the court did not grant it that day. Instead, Judge Abrams, sitting in Part I, issued a temporary restraining order, set an order to show cause why a preliminary injunction should not enter, directed that the trade-secret materials not be accessed, disclosed, or copied, and prescribed how the defendant was to be served: by both personal service and email.

That choice is the through-line of the DTSA's early case law. Section 1836(b)(2)(A)(ii) bars a court from granting a seizure application unless it finds, among a battery of other things, that "an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate to achieve the purpose of this paragraph because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order." The statute thus front-loads an adequacy inquiry: before a court reaches for the marshals, it must satisfy itself that a restraining order will not do the job. At the outset of *Mission Capital*, a restraining order looked adequate. The data was identified; the defendant was a known former employee; an order barring him from touching the files, backed by the threat of contempt, appeared sufficient to preserve the status quo while the case proceeded to a hearing.

This is precisely the analysis other courts would soon make explicit. The same inadequacy gate is what led the Northern District of California to deny seizure in *OOO Brunswick Rail Management v. Sultanov* and the Southern District of Florida to deny it in *Balearia Caribbean Ltd. v. Calvo*. In each, a TRO appeared capable of neutralizing the dissemination risk, so the extraordinary remedy was withheld. *Mission Capital* began on that same footing. What distinguishes it is what happened next.

## Seizure became necessary only when the TRO could not be enforced

The TRO depended on the defendant being reachable. He was not. Mission Capital served the order by email, but Romaka evaded personal service on five separate occasions, and then failed to appear at the show-cause hearing. At that point the adequacy calculus inverted. A restraining order is only as effective as a court's ability to bind the person it restrains; a defendant who cannot be served and will not appear has placed himself beyond the practical reach of Rule 65. The very premise that made a TRO adequate at the outset (an identifiable, reachable defendant who could be ordered not to touch the data) had collapsed.

It was on that record that the court authorized seizure. The order was strikingly narrow. It reached only the contact lists, identified down to two named files on a Lenovo desktop at Romaka's apartment, and it denied without prejudice Mission Capital's request to seize its other proprietary information because that material "and related facts such as confidentiality and irreparable harm are not described with sufficient particularity in the moving papers." Even as to the contact lists, seizure meant copying the files onto a storage medium and deleting them from the computer, not carrying the computer away. That narrowing matters: § 1836(b)(2)(B)(ii) commands that any seizure be "the narrowest seizure of property necessary" to achieve the statute's purpose, and a focused order aimed at a discrete, identified data set is the paradigm. The court did not order the marshals to haul off everything Romaka owned; it ordered them to capture the specific thing the case was about.

The chronology is the holding. Seizure under the DTSA was warranted here not because Mission Capital's underlying claim was unusually strong (plenty of misappropriation plaintiffs can show a clean download) but because the ordinary remedy had been tried and had failed in a concrete, documented way. Five evasions of service and a no-show at the hearing are the kind of record that converts "an injunction would be inadequate" from an assertion into a fact.

## Why the first seizure order is a cautionary precedent for plaintiffs

It would be easy to read *Mission Capital* as a green light. The opposite is closer to the truth. The case that produced the first DTSA seizure also demonstrated how much has to go wrong with the conventional path before a court will deploy the marshals. A plaintiff who marches into court demanding seizure on day one, before any attempt at a restraining order, is asking the court to skip the very step *Mission Capital* shows is expected first. The decision is frequently cited not as authority that seizure is readily available but as the rare illustration of when it is appropriate: after evasion, concealment, and defiance of the court's process.

The case also underscores the evidentiary texture that supports seizure. Romaka did not merely possess the data; he affirmatively misrepresented that he had deleted it, and the misrepresentation was exposed by forensic analysis. The court drew the natural inference from that conduct, finding that "[t]he circumstances indicate that Defendant intends to misuse Plaintiffs' trade secret information." Worth noting, though, is a wrinkle the case is rarely credited with. Section 1836(b)(2)(A)(ii)(VII) contemplates a finding that the target "would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person." Mission Capital did not rely on that escape hatch. The order records that "[d]espite the risk that Defendant would make the Contact Lists inaccessible to the court, or retain unauthorized copies, Plaintiff is proceeding on notice," and it directed that the seizure order itself be served on Romaka by email. The first DTSA seizure, in other words, was applied for ex parte but granted against a defendant who had been given notice and simply would not engage.

## Open questions

Because *Mission Capital* was decided against a defendant who never appeared, it left the harder doctrinal edges unexplored. The court never had to articulate, in a contested hearing, what quantum of evasion suffices: whether five failed service attempts is a floor, a benchmark, or merely the facts of this case. Nor did it test how the "narrowest seizure" command operates when misappropriated data is commingled with a defendant's personal files on the same device, since the order targeted a discrete data set. And because the defendant defaulted, the decision offers little guidance on the post-seizure hearing's mechanics: how a court weighs an applicant's showing when, unlike here, the target actually appears to contest the seizure and demand the statute's wrongful-seizure protections.

## Implications

- **Try Rule 65 first.** *Mission Capital* shows courts expect a restraining order to be the opening move; seizure is what you ask for when that order cannot be enforced, not what you lead with.
- **Document the failure of ordinary process.** The case turned on a concrete record: five evasions of service and a missed hearing. Build that record; do not rest on a generalized fear of deletion.
- **A clean, discrete data set helps.** Seizure aimed at a specific identified data set (here, a downloaded contact list) fits the statute's "narrowest seizure" command far better than a request to confiscate every device.
- **Misrepresentation and concealment are powerful facts.** A defendant who falsely claims to have deleted data, exposed by forensics, gives the court a documented basis to find an intent to misuse the trade secret rather than a speculative one.
- **Specificity is a gate of its own.** The same order denied seizure of Mission Capital's other proprietary information because the moving papers did not describe it, or the harm from its loss, with sufficient particularity.
- **The first seizure was the exception, not the template.** Read alongside the contemporaneous denials in *Brunswick* and *Balearia*, *Mission Capital* confirms how narrow the remedy is in practice.

## Frequently asked questions

**Was *Mission Capital* really the first DTSA seizure order?** It is widely described as the first civil seizure order issued under § 1836(b)(2), entered roughly two and a half months after the DTSA took effect in May 2016. That distinction is why the case is so heavily cited despite its brief, fact-specific order.

**Why did the court grant seizure here when other early courts refused it?** Because the ordinary remedy had been tried and had failed. The court first issued a TRO; only after the defendant evaded personal service five times and failed to appear (rendering Rule 65 relief unenforceable) did the court authorize seizure. In *Brunswick* and *Balearia*, by contrast, a TRO still appeared adequate, so seizure was denied.

**What was actually seized?** Only the contact lists, identified as two named files on a Lenovo desktop at the defendant's apartment. The marshals were directed to copy those files onto a storage medium and delete them from the computer, not to take the computer. The court denied without prejudice the request to seize Mission Capital's other proprietary information for lack of particularity, so the order matched the statute's command that a seizure be the narrowest necessary.

## Authorities and sources

- *Mission Capital Advisors LLC v. Romaka*, No. 1:16-cv-05878-LLS (S.D.N.Y. July 29, 2016), order: https://digitalcommons.law.scu.edu/historical/1395/
- Docket, *Mission Capital Advisors LLC v. Romaka*, PacerMonitor: https://www.pacermonitor.com/public/case/15297943/Mission_Capital_Advisors_LLC_v_Romaka
- Eric Goldman, "The DTSA's Ex Parte Seizure Order: The 'Ex' Stands for 'Extraordinary'" (guest blog post): https://blog.ericgoldman.org/archives/2017/02/the-dtsas-ex-parte-seizure-order-the-ex-stands-for-extraordinary-guest-blog-post.htm
- Mintz, "DTSA and Ex Parte Seizure – Lessons from the First Ex Parte Seizure Under the DTSA": https://www.mintz.com/insights-center/viewpoints/2231/2017-08-21-dtsa-and-ex-parte-seizure-lessons-first-ex-parte-seizure
- Fish & Richardson, "Ex Parte Seizures Under the DTSA: A Drastic Trade Secret Remedy": https://www.fr.com/insights/ip-law-essentials/ex-parte-seizures-under-the-dtsa-a-drastic-trade-secret-remedy/
- 18 U.S.C. § 1836(b)(2) (Defend Trade Secrets Act civil seizure provision): https://www.law.cornell.edu/uscode/text/18/1836