Trade secret holders, when it comes to damages, often face a dilemma. They believe they have been substantially harmed and want to seek large damages. But courts have required trade secret holders to apportion damages on a per-trade secret basis. The trade secret holder is supposed to prove that the requested damages can be attributed to an individual trade secret being taken or used. This frequently means that damages could be limited because it's difficult to prove the value of each individual trade secret being used. 

In some instances, trade secret holders argue that their trade secret damages are premised on all the trade secrets being taken together. That is what happened in the Trinseo Europe GmbH v. Kellogg Brown case from Texas and the Fifth Circuit. Unfortunately for Trinseo, the jury found that only 4 of 10 trade secrets were taken, so the $75 million damages verdict was vacated because not all the trade secrets were taken. 

In a few other cases, trade secret holders argue that if any one trade secret is taken, the damages are equivalent in value to taking all the trade secrets. Thus, the dilemma is whether to apportion or not to apportion. 

Realistically, trade secret holders and their counsel have to study their business model and decide which of these methodologies represents what happens in their business. It is a very difficult, but very important issue in any trade secret case.

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Although the jury found that the defendants misappropriated four of the 10 trade secrets that Trinseo asserted, the appellate court agreed that Trinseo's damages model — predicated on misappropriation of all 10 alleged trade secrets — left the jury without any legally sufficient basis to apportion damages to the specific secrets that were actually found to be misappropriated. Without that foundation, the multimillion‑dollar award could not stand.

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