PJC Business

D AMAGES

PJC 115.55

The hypothetical sale theory considers the amount a reasonable purchaser would have paid for the trade secret. Bohnsack , 668 F.3d at 280. This method calculates dam ages by looking at the “investment value of the trade secret.” Precision Plating & Metal Finishing, Inc. , 435 F.2d at 1263. In other words, damages are determined by what an investor would pay for the return he foresees from owning the trade secret, taking into account the facts, circumstances, and information available at the time. Precision Plating & Metal Finishing, Inc. , 435 F.2d at 1263. This measure of damages is used when the defendant has deprived the plaintiff of the trade secret’s use or destroyed its value, such as by publishing the trade secret so that no secret remains. Lykes-Youngstown Corp. , 504 F.2d at 535. “The fact finder must have sufficient evi dence to determine the value a reasonably prudent investor would pay for the trade secret … and to meet that standard, the plaintiff need only demonstrate ‘the extent of damages as a matter of just and reasonable inference,’ even if the extent is only an approximation.” Southwestern Energy Production Co. , 491 S.W.3d at 711–12 (pre-Act case quoting DSC Comm’s Corp. v. Next Level Comm’s , 107 F.3d 322, 330 (5th Cir. 1997)). If the law, the pleadings, and the evidence warrant the submission of a hypothetical sale damage instruction, the following form may be used: Sample D—Hypothetical Sale The value that a reasonably prudent investor would have paid for Multiple damage remedies. The availability of multiple damage remedies in Tex. Civ. Prac. & Rem. Code § 134A.004 does not allow for a trial court to “cumulate them all in violation of the one-satisfaction rule.” TMRJ , 540 S.W.3d at 209. Contractual remedies. The Act does not affect contractual remedies premised upon misappropriation of trade secrets. Tex. Civ. Prac. & Rem. Code § 134A.007(b)(1). the trade secret at the time of the misappropriation. See TMRJ , 540 S.W.3d at 209; Bohnsack , 668 F.3d at 280.

[PJC 115.56–115.59 are reserved for expansion.]

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