The Billion-Dollar Trade Secret Verdict

May 28, 2016

Well, not quite. But $940 million is a lot of money, and that's how much a federal court jury awarded on April 15, 2016 to Epic Systems, a Wisconsin healthcare software company, against the U.S. subsidiary of Tata Consultancy, part of the Tata Group headquartered in India. There may be a lot of lessons to come out of this case - and we don't know if the jury's award will be reduced - but what I want to talk about today is inspired by that verdict: how is it that trade secret damages can be so large?

Of course, every case rests on a unique set of facts, and trade secret disputes typically involve allegations of treachery and deceit that can turn a jury's head. But at a time when proving damages in patent cases feels restricted by issues like extraterritoriality and the entire market value rule, it seems that trade secret verdicts keep going up. In a quick search of awards in the past five years, I've found eight (including the Epic case) of more than $25 million, and three of those were in the hundreds of millions.

What is it about trade secret damage law that allows such seemingly generous results? Mainly it's because trade secrets are grounded in tort principles, where the primary objective is to make the plaintiff whole, and where doubts are resolved against the wrongdoer.

Setting aside willfulness for the moment (while we await the Supreme Court's rulings in Halo and Stryker), patent law tries to calculate the rent due for no-fault infringement. Trade secret law, in contrast, tries to return the plaintiff to where it should have been but for the defendant's wrongful behavior. The difference makes trade secret damages harder to predict.

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