Kansas Federal Court Applies “Selective Enforcement” Theory to Reject DTSA Claim

A Kansas federal court held that inconsistent enforcement of trade secret rights can defeat a claim under the Defend Trade Secrets Act (DTSA). In Edelman Financial Engines, LLC v. Mariner Wealth Advisors LLC, No. 2:23-cv-02515-HLT (D. Kan. June 5, 2026), the court applied a selective enforcement theory, holding that when a company does not consistently pursue legal remedies against similarly situated former employees, that inconsistency can be affirmative evidence that it failed to protect its trade secrets. While the selective enforcement theory has appeared in academic hypothetical discussions, the decision appears to be one of the clearest judicial applications of a “selective enforcement” theory in a trade secret case.

Edelman Financial Engines, LLC (Edelman), a wealth advisory firm, sued competitor Mariner Wealth Advisors (Mariner) after Mariner hired several financial planners who had worked for Edelman (the Departed Planners). Upon joining Mariner, most of the Departed Planners reconstructed former client lists from memory and used publicly available sources to locate contact information. Edelman contended that its client information is a trade secret, that Mariner incentivized the Departed Planners to solicit its clients and benefited from their actions, and that Mariner thereby misappropriated Edelman’s trade secrets.

Edelman’s own damages expert acknowledged that there were additional planners who had departed Edelman and breached their agreements on restrictive covenants beyond those at issue in the litigation. The record showed that approximately 74 other planners had left Edelman’s employment and breached their agreements. Edelman took legal action against only 42 of those planners. Even within the very lawsuit before the court, Edelman did not seek injunctive relief against eight of the 10 Departed Planners.

The court held that this selective enforcement of Edelman’s alleged trade secret rights shows a lack of reasonable protective measures, and it also suggests that the information at issue does not constitute a trade secret at all.

The court relied on Alamar Biosciences, Inc. v. Difco Laboratories, Inc., 1995 WL 912345 (E.D. Cal. 1995), for the principle that a company’s failure to sue to protect alleged trade secrets can show it did not take reasonable steps to preserve secrecy. Extending that reasoning, the court treated selective enforcement against only some former employees as evidence that Edelman’s protective measures were not reasonable.

The court’s reasoning suggests that the consistency of enforcement may matter in certain circumstances, including the pursuit of injunctive relief. Companies with trade secrets should consider this when deciding whether to take legal action. Not doing so may have consequences. Evidence of widespread patchwork or non-enforcement could be introduced.