PJC Business

D AMAGES

PJC 115.55

As explained below, the sample elements of damages provided above are not intended to be exclusive, and it may be appropriate to modify an element, or to submit an element other than those listed above, in a particular case. Plaintiff’s actual loss. The Act provides that a plaintiff is entitled to recover the actual loss caused by misappropriation of a trade secret. Tex. Civ. Prac. & Rem. Code §134A.004(a). “Loss of value to the plaintiff is usually measured by lost profits.” Southwestern Energy Production Co. v. Berry-Helfand , 491 S.W.3d 699, 711 (Tex. 2016) (pre-Act case); see also Bohnsack v. Varco, L.P. , 668 F.3d 262, 280 (5th Cir. 2012) (“Damages in misappropriation cases can take several forms . . . [including] the value of plaintiff’s lost profits....”). For further discussion of lost profits, see the Comment to PJC 115.5. Depending on the evidence, actual loss may include elements in addition to lost profits, or lost profits may not be an appropriate measure of actual loss. In such cases, additional or alternative instructions on the appropriate measure of damages must be provided. See PJC 115.4 and 115.5 for sample instructions. Defendant’s unjust enrichment. In some cases, the defendant has used the plaintiff’s trade secret to his advantage with no obvious effect on the plaintiff save for the relative differences in their subsequent competitive positions. University Comput ing Co. v. Lykes-Youngstown Corp. , 504 F.2d 518, 535 (5th Cir. 1974). The Act pro vides that a claimant is entitled to recover the unjust enrichment caused by misappropriation of a trade secret. Tex. Civ. Prac. & Rem. Code § 134A.004(a). Cases decided prior to the Act examine various forms of “benefits, profits, or advantages gained by the defendant in the use of the trade secret.” Lykes-Youngstown Corp. , 504 F.2d at 536. Unjust enrichment damages may be measured by the defendant’s actual profits from the misappropriation of the trade secret or the development costs the defendant avoided incurring through misappropriation. Bohnsack , 668 F.3d at 280; Lykes Youngstown Corp. , 504 F.2d at 536, 538–39; Southwestern Energy Production Co. , 491 S.W.3d at 711. Depending on the facts, either the defendant’s profits or costs avoided or both may be submitted, and each measure may be modified as necessary to ensure that the jury’s verdict can be translated into a judgment without awarding the plaintiff a double recovery. If the defendant earned profits from the misappropriation, the plaintiff may recover the total amount of the defendant’s profits or some appor tioned amount corresponding to the actual contribution the trade secret(s) made to the defendant’s profits. Lykes-Youngstown Corp. , 504 F.2d at 539. The Act permits recovery for both actual loss and unjust enrichment to the extent the unjust enrichment caused by the misappropriation is not taken into account in com puting actual loss. Tex. Civ. Prac. & Rem. Code §134A.004(a); Southwestern Energy Production Co. , 491 S.W.3d at 711 n.7.

553