PJC Business

PJC 115.55

D AMAGES

PJC 115.55 Sample Instructions on Actual Damages—Trade-Secret Misappropriation

Exemplary note: Damages instructions in a misappropriation-of-trade-secrets case are necessarily fact-specific and can vary with the circumstances of each case. The elements listed below are those commonly used in misappropriation-of-trade secrets cases but do not represent an exhaustive list. These instructions are to be used in conjunction with the misappropriation-of-trade-secrets damages question, PJC 115.54. Sample A—Plaintiff’s actual loss Paul Payne ’s lost profits caused by the misappropriation. Sample B—Defendant’s unjust enrichment Profits that Don Davis earned from the misappropriation. [or] Development costs that Don Davis avoided by the misappropriation. Sample C—Reasonable royalty The price that a willing buyer and a willing seller would have agreed on, at the time of the misappropriation, as a fair price for Don Davis ’s use of the trade secret. COMMENT When to use. Section 134A.007 of the Texas Civil Practice and Remedies Code specifies the extent to which the Texas Uniform Trade Secrets Act (the “Act”), effec tive September 1, 2013, displaces other Texas law regarding remedies for misappropri ation of a trade secret. To the extent other Texas law has not been displaced by the Act, it is examined below. The Act provides for three measures of damages: (1) actual loss caused by misap propriation; (2) unjust enrichment caused by misappropriation that is not taken into account in computing actual loss; and (3) in lieu of damages measured by any other methods, a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret. Tex. Civ. Prac. & Rem. Code § 134A.004(a).

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