USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
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 Attorneys’ Fees Under the DTSA and the UTSA, reasonable attorneys’ fees may be awarded to the prevail - ing party on a showing of wilful and malicious misappropriation by the defendant or a bad- faith claim of misappropriation 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 mis - appropriation 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 enrich - ment damages in a trade secret case where those costs bear no relationship to the plaintiff’s harm or the defendant’s gain. In, for example, the Third and Seventh Circuits, damages for avoided costs can be awarded under a theory for unjust enrichment. See Epic Sys. Corp v Tata Consultancy 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 damag - es. 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 juris - diction 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 judgments 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 the US Court of Appeals for the Federal Circuit. If the ITC issues an exclu - sion order, an appeal cannot be filed until after a 60-day review period, during which the US President may veto the exclusion order. If the ITC does not issue an exclusion order, any adversely affected party may immediately file a notice of appeal. It is not unusual for the federal appellate process to take anywhere from several months to several years. The process involves substantive brief - ing by both parties, which itself can take several months. Circuit court appeals often involve oral arguments before a panel of appellate judges. Circuit courts have discretion in scheduling the oral argument date for an appeal. Once the brief - ing and oral argument have been completed, the court has discretion in the timing of issuing a decision. A party that is dissatisfied with the panel’s deci - sion may seek a rehearing of the proceeding en banc – ie, a rehearing before all (or a substantial
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