ASSESSING DAMAGES IN TRADE SECRET LITIGATION
Sikellis: How have recent developments reshaped the key trends in assessing damages in trade secret litigation?
Vigil: Three developments in the US stand out. First, judicial scrutiny of large awards has intensified. Several major awards, including nine and 10 figure verdicts, have been reversed, vacated or reduced because of defects involving causation, apportionment and evidentiary support. Second, the Seventh Circuit’s Motorola decision held that the Defend Trade Secrets Act (DTSA) can reach foreign sales when section 1837 is satisfied, including through an act in furtherance in the US, provided the claimed foreign damages were caused by the misappropriation. Third, there is a circuit split between the Fifth and Second Circuits over whether a plaintiff can recover a defendant’s avoided research and development (R&D) costs as unjust enrichment without separately proving corresponding compensable harm beyond that captured by actual-loss damages. In practice, experts are building tighter causation, apportionment, evidentiary support and remedy design into damages models, extending remedies analysis globally where justified, and framing unjust-enrichment theories consistently with emerging case law.
Irwin: Two recent trends come to mind that affect how economic damages are assessed in trade secret litigation. First, while plaintiffs are understandably reluctant to disclose details about their asserted trade secrets, courts have required them to define and describe those secrets with more specificity, including categorising trade secrets if appropriate. Second, judges and magistrates are increasingly aware of the need to apportion the incremental value of any misappropriated trade secrets.
Oct-Dec 2026 issue
Novartis
Analysis Group
Ankura
Cornerstone Research
Ocean Tomo