USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Josh Berlowitz and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
a royalty rate to which the parties would agree in a hypothetical negotiation. Punitive damages may be available under the DTSA and for most state law claims if the defendant’s con - duct was gross, wilful or malicious. There are certain exceptions involving whistle-blower immunity for which punitive damages against a current or former Under the DTSA, a court may issue an injunction that places some limits on an employee’s subsequent employment in order to protect the plaintiff’s trade secrets, but the scope of the injunction may not be so broad as to prevent an employee from entering into any employment relationship or conflict, with applica - ble state laws prohibiting restraints on the lawful prac - tice of a profession. Moreover, the trade secret owner must base its request for a permanent injunction on evidence of threatened misappropriation and not merely on the information that the employee knows. As a result, a trade secret owner may have limited recourse to injunctions in states such as California or Louisiana that disfavour non-competition agree - ments or that have rejected the inevitable disclosure doctrine. In practice, courts have issued injunctions restricting former employees in possession of sales and marketing-related trade secrets from soliciting former clients or bidding on certain contracts. Where the misappropriated trade secret has been used to develop a competing product or service, the trade secret owner should consider seeking a per - manent injunction requiring the misappropriator to cease offering or recall the product or service. To suc - ceed, the trade secret owner will likely need to show irreparable injury by putting forward evidence that other remedies, such as monetary damages, would be inadequate to compensate for the misappropria - tion. A finding of irreparable injury can be supported by harms that are impossible or difficult to quantify, such as a loss of good will. 7.4 Attorney’s Fees Under the DTSA and the UTSA, reasonable attor - neys’ fees may be awarded to the prevailing party on employee may be unavailable. 7.3 Permanent Injunction
a showing of wilful and malicious misappropriation by the defendant or a bad-faith claim of misappropria - tion by the plaintiff (18 USC Section 1836 (b)(3)(D); UTSA 4). 7.5 Costs Under the DTSA and most state trade secret laws, costs may be awarded to the prevailing party on a showing of wilful and malicious misappropriation by the defendant or a bad-faith claim of misappropriation by the plaintiff. The Circuit Split on Damages Under a Theory of Unjust Enrichment Currently, circuit courts are split over whether avoided costs can be awarded as unjust enrichment damages in a trade secret case where those costs bear no rela - tionship to the plaintiff’s harm or the defendant’s gain. In, for example, the Third and Seventh Circuits, dam - ages for avoided costs can be awarded under a theory for unjust enrichment. See Epic Sys. Corp v Tata Con- sultancy Servs. , 980 F.3d 1117, 1130 (7th Cir. 2020); PPG Indus. v Jiangsu Tie Mao Glass Co , 47 F.4th 156, 164 (3d Cir. 2022). However, other circuits, such as the Second Circuit, have explicitly rejected the idea that avoided costs can be awarded as unjust enrichment damages. See Syntel Sterling Best Shores Mauritius Ltd v The TriZetto Grp ., 68 F.4th 792, 811–14 (2d Cir. 2023). The Supreme Court declined a petition for a writ of certiorari for a case that would have resolved the circuit split, and thus the circuit split on this issue remains. See Tata Consultancy Servs. Ltd v Epic Sys. Corp , 144 S. Ct. 425 (2023). Therefore, practitioners should consider whether avoided costs under a theory of unjust enrichment are available in their jurisdiction when filing suit (see also Motorola Sols., Inc v Hytera Commc’ns Corp Ltd , 108 F.4th 458, 502 (7th Cir. 2024) (reconciling the Epic Sys and TriZetto holdings)).
8. Appeal 8.1 Appellate Procedure
A federal district court decision (including final judg - ments and orders on dispositive motions) may be appealed as of right to the circuit court of appeals in the circuit in which the case was initially decided. Appeals from final ITC actions may be taken only to
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