Recently, Seyfarth Partner Jesse Coleman had the opportunity to present an American Intellectual Property Law Association (“AIPLA”) webinar titled “Working with Experts and Recent Developments in Trade Secrets Damages.” Together with Brent Bersin of FTI Consulting and Attorneys Lawrence Pockers and Jennifer Kenedy, the webinar shed light on the intricacies of trade secrets damages and provided valuable insights into the evolving landscape of this critical area of trade secrets litigation. In this blog post, Jesse shares some of the key takeaways from the webinar, highlighting the significant points discussed by the experts.
When to Hire a Damages Expert
One of the primary takeaways from the webinar was the emphasis on the role of damages expert in trade secrets cases. Retaining damages expert early in the process may often end up being more efficient from a time and fee perspective than waiting towards the end of fact discovery. It may also allow counsel and clients to take full advantage of insights and experiences from a damages expert that can assist in achieving success. Experts play a crucial part in establishing and quantifying the damages caused by misappropriation. They assist in determining the value of the trade secret, analyzing the economic impact on the plaintiff, and providing credible evidence to support the damages claim. The webinar emphasized the need for attorneys to effectively collaborate with expert witnesses to strengthen their case and enhance the chances of success.
Selection of Damages Measures in Litigation
The webinar delved into the methodologies used to calculate selections of trade secrets damages. The selection of damages measures in trade secrets litigation requires careful consideration and analysis. By considering multiple damages measures, tailoring the approach to the case, accounting for the defendant’s profits, assessing the impact on the plaintiff, and staying abreast of legal developments, attorneys can strengthen their damages claims. Collaborating with experts who have experience in trade secrets damages can further enhance the effectiveness of the damages calculation, ultimately leading to more favorable outcomes in trade secrets litigation.
Use of Damages Expert to Help Establish Causation
The panelists also discussed the how the use of damages experts in trade secrets litigation may be instrumental in addressing causation and highlighting the link between trade secret misappropriation and the alleged economic harm suffered by the plaintiff. An expert’s ability to evaluate economic harm, utilize economic modeling techniques, consider alternative explanations, collaborate with industry experts, and persuasively communicate through expert testimony are all valuable assets in building a strong case. By working closely with damages experts, attorneys can enhance their ability to establish (or rebut) causation and increase the likelihood of a successful outcome in trade secrets litigation.
Recovery for Extraterritorial Damages
In addition to the technical aspects of damages calculations, the webinar included discussion on recovering extraterritorial damages in trade secrets litigation. By working closely with damages experts, attorneys can enhance their ability to recover or defend against extraterritorial damages.
Apportioning Damages by Trade Secrets
The webinar concluded by discussing the case law addressing whether damages need to be apportioned by trade secret. The case law is mixed on this point, with various courts and jurisdictions taking different positions, based the facts of the cases. A thorough knowledge and appreciation of what particular courts have said on this topic will be helpful in determining the need for apportionment in a given case.
The takeaways from the webinar highlighted the importance of expert testimony, various methodologies for calculating damages, recent legal developments, and strategic considerations for employers and in-house counsel. By understanding these key points, legal professionals can enhance their ability to handle trade secrets damages cases effectively. Staying informed about the latest developments in trade secrets law and working collaboratively with experts will undoubtedly contribute to successful outcomes in such cases.