The available remedies for trade secret misappropriation drive and define litigation on these claims. Recognizing this, The Sedona Conference created drafting teams of its members to identify, organize, and present consensus, nonpartisan principles on available remedies for trade secret misappropriation, which include both non-monetary and monetary remedies. The previously published Commentary on Equitable Remedies in Trade Secret Litigation provides principles for non-monetary remedies. This Commentary provides them for monetary remedies. The rules for what money a successful trade secret claimant can recover are easy to state but often difficult to apply. This Commentary seeks to be a resource to assist parties and decisionmakers in addressing monetary remedies and suggests effective methods for determining whether, and in what amount, to award monetary relief for trade secret misappropriation. To achieve these aims, this Commentary focuses on the statutory and decisional law that provides for the three core types of damages in trade secret cases: actual loss, unjust enrichment, and, in many cases, royalties. This Commentary also analyzes the difficult issues that must be grappled with regarding such damages, including apportionment, causation, reasonable certainty, the applicability and inapplicability of patent damages law precedent in trade secret cases, and many more. Please note that this version of the Commentary is open for public comment through October 31, 2022, and suggestions for improvements are welcome. Jim Ko Sr. Program Attorney The Sedona Conference [email protected] P.S. Please join us on May 9-10 for The 2022 Sedona Conference on Trade Secrets, where we will present for public dialogue for the first time this and many other published and forthcoming Sedona Working Group 12 on Trade Secrets commentaries. For program page and to register, click here. Please join the dialogue!
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