Trade Secret Damages in Texas After Trinseo

A recent study reviewed the ten largest trade secret jury awards from 2020 through 2025 and found that trial judges or appellate courts reduced them by 44 percent–primarily through apportionment.  And in the Fifth Circuit, apportionment now comes with a rule attached.

In Trinseo Europe GmbH v. Kellogg Brown & Root, L.L.C., No. 24-20460 (5th Cir. Jan. 21, 2026), a jury found four of ten claimed trade secrets qualified and were misappropriated.  It awarded $50 million as a reasonable royalty and $21.2 million in unjust enrichment. The district court took all of it away, entering judgment as a matter of law, and the Fifth Circuit affirmed. Trinseo arose under the Defend Trade Secrets Act.  Its apportionment rule matters: under it, damages must be traceable to the specific information or technology found to be trade secrets and to be misappropriated, rather than a global award.

Damages Must Be Traceable to the Trade Secret

The holding: “where a plaintiff alleges multiple trade secrets, the jury must have a reasonable basis to award damages attributable only to the information or technology that actually qualifies as a trade secret.” Trinseo’s expert had not valued the secrets individually, had not valued any combination of them, and had not given the jury a method for doing either.

The panel, however, declined to impose a strict apportionment requirement, listing three acceptable approaches in a footnote: value each secret, value a defined group, or supply a methodology the jury can run itself.

The court distinguished Bishop v. Miller, 412 S.W.3d 758 (Tex. App.—Houston [14th Dist.] 2013, no pet.), where the jury had been asked about a compilation trade secret “comprised of some or all of the thirteen items.”  “The jury in this case was not presented with a question regarding compilation trade secrets.”

How Do You Prove a Reasonable Royalty?

Section 134A.004(a) lets a claimant recover actual loss plus unjust enrichment not already counted in actual loss or, in lieu of any other measure, a reasonable royalty. The royalty is a fictional negotiation—what a willing licensor and licensee would have agreed to as the value of the trade secret at the start of the misappropriation. It stands in for what the defendant took, “but it is not simply a percentage of the defendant’s actual profits.” Southwestern Energy Production Co. v. Berry-Helfand, 491 S.W.3d 699, 711 (Tex. 2016).

Berry-Helfand is the case defense counsel should read first. There, the plaintiff’s expert applied a flat 3 percent overriding royalty drawn from a comparable agreement that he conceded he was “not really” familiar with. That agreement used a sliding scale tied to total royalty burden, which zeroed out above a threshold, and the royalty actually owed on the disputed wells could have been calculated under its own method. Applying 3 percent across the board was, according to the court, “a critical misstep.”

The court provided an important principle: “relying on imagination is not justified when objective evidence is available.” An expert who averages where the comparable agreement supplies real mechanics has written the cross-examination himself.

Unjust Enrichment After Tata

In November 2025, the Fifth Circuit affirmed a $56.2 million unjust enrichment award measured by the development costs that the defendant avoided, plus $112.3 million in exemplary damages at the federal statute’s two-to-one cap—the same ratio that section 134A.004(b) allows in a TUTSA case on a clear-and-convincing finding of willful and malicious misappropriation. Computer Sciences Corp. v. Tata Consultancy Services Ltd., No. 24-10749 (5th Cir. Nov. 21, 2025). The court declined to follow the Second Circuit’s Syntel decision to the extent it requires a trade secret holder to prove “compensable harm” beyond the misappropriator’s gain, calling that reading “divorced from the text of the DTSA and from traditional understandings of the ‘unjust enrichment’ remedy.” Without the remedy, the court said, a misappropriator “would be allowed to keep the benefit of its own misdeeds at the secret holder’s expense. That would be a windfall.”

The opinion also worked out something courts usually skip. An avoided-cost award puts the defendant where it would have been had it paid to build the thing itself—which means it would own the thing. So an injunction barring use of what it built overlaps the damages. The Fifth Circuit narrowed the injunction rather than cutting the award, and defense counsel who spot that overlap should ask for the remedy the court actually gave.

The Head Start Window

Section 134A.003(a-1) ends an injunction when the trade secret ceases to exist but allows it to continue for a reasonable period to eliminate the commercial advantage derived from the misappropriation. That head start is the damages period.

Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., 895 F.3d 1304 (Fed. Cir. 2018), vacated a $48.8 million disgorgement award on three grounds, among them the plaintiff’s failure to limit the covered sales to a head start period. On remand and back up again, the Federal Circuit reversed the accessibility date, holding that Texas law asks whether the information was readily ascertainable—what could have been done, not what the misappropriator did. ams-OSRAM USA Inc. v. Renesas Electronics America, Inc., 133 F.4th 1337 (Fed. Cir. 2025). Reverse engineering the structure would have taken about a week, which moved the date by nearly a year.

Two holdings from that opinion cut in opposite directions. The 26-month head start survived because the defendant offered no evidence of how long it would have taken to compete without the technology. But sales made after the window closed still counted, because the design win that produced them fell inside it.

In HouseCanary, Title Source sued and HouseCanary counterclaimed, and the trial court entered judgment of roughly $739.7 million. The appeals court reversed on a charge error in 2020, the Supreme Court denied review in 2022, and a second jury returned $175 million in March 2026—a decade later, and a quarter of the original number.