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Disputed Issues in Awarding Unjust Enrichment Damages in Trade Secret Cases

06 August 2018
NERA Managing Director Dr. Alan Cox and David S. Almeling, Walter Bratic, Monte Cooper, and P. Anthony Sammi

Enrichment damages is one of three primary forms of compensatory damages in trade secret cases. The other two are actual loss and reasonable royalty. Often the largest measure of damages in trade secret cases, enrichment damages contains five commonly disputed issues, each of which are discussed in the article:

  1. Whether unjust enrichment can include the entire fair market value of the trade secret defendant;
  2. The appropriate duration of unjust enrichment damages;
  3. The appropriate role of burden-shifting in determining a defendant’s profits in the context of unjust enrichment damages;
  4. Ways to avoid double-counting of damages between unjust enrichment and actual loss; and
  5. Circumstances in which convoyed sales should be included within unjust enrichment damages.