The value of trade secrets to domestic and international companies is beyond dispute. The Brookings Institution estimates that “at least 50%, and possibly as much as 85%” of the value of American companies is attributable to intangible assets.1 Similarly, trade secret losses are an international problem as well. Kroll’s 2010-2011 Global Fraud Report states that intellectual property theft is the second most common fraud in China, and is seen in many industries, among others, the healthcare, pharmaceutical and biotechnology sectors.2 Notwithstanding the broader economic effect, in the first instance, such trade secret or confidential information losses have enormous economic impact on the individual holders of these property rights. Often a company will need to resort to “bet the company” litigation to assert their rights to their property.
However, establishing liability is only half the battle. Once liability for the loss of a trade secret has been established, monetary damages for misappropriation must account for loss of the asset, in addition to the recovery of equitable relief, usually provided in the form of an injunction. The existence and recovery of monetary damages is paramount, particularly where the trade secret has already been publicly disclosed through the defendant’s misappropriation. Although there are several ways a plaintiff may obtain a remedy through litigation, this article focuses upon the methods of proving and obtaining monetary damages, as interpreted by the New York federal and state courts. We also examine a methodology in a recent case involving the loss of complex technology, including the court’s review of proffered expert testimony.
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