Trinseo v. Harper

Case: 24-20460 Document: 212-1 Page: 1 Date Filed: 01/21/2026

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 24-20460

FILED

January 21, 2026

____________

Lyle W. Cayce

Trinseo Europe GmbH, Clerk

Plaintiff—Appellant/Cross-Appellee,

versus

Kellogg Brown & Root, L.L.C.; Stephen Harper, also known

as Steve Harper; Steve Harper Consulting,

Incorporated; Polycarbonate Consulting Services,

Incorporated,

Defendants—Appellees/Cross-Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-478

______________________________

Before Smith, Stewart, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge:

After a jury found that the defendants misappropriated Trinseo

Europe GmbH’s (Trinseo) trade secrets and awarded it more than $75

million in damages, the district court granted the defendants’ motions for

judgment as a matter of law and vacated the damages award. It also granted

summary judgment on Trinseo’s alternative misappropriation of confidential

information claims, denied Trinseo’s motion for a new trial, and entered a

permanent injunction. We AFFIRM.

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No. 24-20460

I

A

In the 1960s, The Dow Chemical Company (Dow) started developing

a new process for manufacturing polycarbonate (PC). PC is a material known

for its high heat tolerance, optical clarity, and high-impact strength. It is used

to produce items such as eyeglass lenses, lighting fixtures, medical devices,

and bulletproof glass. Dow’s PC manufacturing process was based on an

“interfacial” process, as distinct from a “melt” process. Its PC plants

encompassed a chemical processing side called the “wet” side, and a

compounding side called the “dry” side. The wet side is the part of the plant

that makes the physical PC in a “flake” form. On the dry side, those flakes

are combined and melded with necessary additives to create the actual

product—a “pellet”—which is sold to manufacturers that then incorporate

the PC into their products.

The wet side (or chemical processing side) includes five sequential

stages. The first stage combines carbon monoxide and chlorine gas in the

“Phosgene Reactor” to make phosgene gas. The phosgene gas is combined

with other chemicals in the “Oligomerization Reactor,” and the resulting

solution goes through another reactor and a series of centrifuges to yield PC

molecules dissolved in methylene chloride. The solution then moves into the

“Steam Devolatilization Process,” where the PC molecules are first

combined with a thermal stabilizer. Then, the PC molecules are

agglomerated together while being separated from the methylene chloride

solvent solution using a specially designed nozzle, a “snake” apparatus, and

other equipment. At this point in the process, a wet flake is formed. The flake

is then sent through a series of dryers and transported to the compounding

side (i.e., the dry side) for later extrusion into pellet form. The entire process

is controlled by the “Process Control Strategy.”

Dow first employed its PC manufacturing process in 1985 at its

inaugural plant in Freeport, Texas. In 1991, Dow opened another PC

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manufacturing plant in Germany. Dow then licensed its technology to

produce PC through two joint ventures: one with Sumitomo in Japan and one

with LG in South Korea. In 2010, Dow sold its entire PC business and

technology under the name “Styron” to a private equity company. In 2014,

the private equity company changed the name of the business from Styron to

Trinseo.

1

Stephen Harper (Harper) worked as a chemical engineer for Dow for

23 years, until his retirement in 1999. He worked on Dow’s PC technology

during the 1980s and helped develop the Freeport plant. Harper started

consulting in the PC industry, and in 2007, he presented information about

Dow-type PC technology to, and ultimately created a PC plant design

package for, a Chinese company. In 2009, an American engineering firm

hired Harper as a consultant. To help with the project, Harper formed

Stephen Harper Consulting, Inc. (SHC) and hired a team of former Dow

employees known as the “Tech Team.” 1 Harper and the Tech Team created

a process design package (PDP) that the American engineering firm could

use to develop an engineering design package for a Chinese client. 2

In August 2011, the Stratford Research Institute (SRI) published a

report titled “Polycarbonate via Dow Phosgenation Process.” This report

was based in part on information gleaned from Harper and the Tech Team

_____________________

1

The core Tech Team group comprised Harper, William Davis, Bryce Koslan,

Richard Kirk, and Chip Melton, but other former Dow employees would also play minor

roles.

2

A PDP is a “first level” document that describes the PC plant, its processes, and

its equipment. In other words, a PDP is a “controlling document that embodies or describes

the [PC] technology.” A PDP is a “lead-in” to a basic engineering design plan (BEDP),

which “contains all of the information that’s required to do [a] detail[ed] design” of the

plant and explains “exactly where in the process instrumentation needs to be . . . .” In

essence, the BEDP creates “what the plant looks like physically.” It is also the package that

is given to the “final engineering company.”

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while they were working on SHC’s 2009 project. Trinseo asked SRI to

withdraw the report because it “contain[ed] highly confidential, proprietary,

and non-public, trade secret information.” SRI promptly pulled the report

from its website. Trinseo also inquired with SRI about the sources for the

report, and SRI responded that the information came from “patents, public

documents[,] and various consultants.” Trinseo collaborated with SRI on a

revised report that was published in November 2011.

In 2012, SHC agreed to provide an American engineering services

broker, Prime 3 Group (Prime 3), PC technology and technical support in

licensing the technology to other clients. In March 2013, SHC entered into

another agreement with Prime 3 to provide a basic engineering design plan

for a PC plant for Luxi Chemical Group (Luxi) in China. In April 2013, Enex

International (Enex)—a Texas-based technology firm—became the provider

of engineering services and detailed designs for the Luxi project. SHC

continued to act as the technology provider.

Luxi told Harper it wanted a copy of Dow’s LG plant design to help

create a similar plant. Harper obtained a copy of Dow’s LG plant drawings—

which were marked “confidential”—from Tech Team member Chip Melton

(Melton), who had retained the drawings after his employment with Dow

ended. Harper used the drawings for the Luxi plant, which became

operational in 2016. In 2017, Harper dissolved SHC and changed the

company’s name to PCS.

2

Kellogg Brown & Root, LLC (KBR) approached Trinseo in

September 2013 in hopes of licensing its Dow-developed PC technology.

Those discussions continued into May 2014, when KBR and Trinseo

executed a nondisclosure agreement. During their negotiations, Trinseo

learned about “ex-Dow employees rumored to be practicing outside

confidentiality boundar[ies].” Certain Trinseo employees, including

longtime employee Jerry Duane (Duane), were assigned to “work together”

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with KBR to investigate the issue. But there was never a substantive

investigation. Instead, Trinseo relied on “a standing instruction” with its

employees in China “to report back anything . . . that might be relevant to the

company.” Employees never “reported anything back about [the] potential

of ex-Dow employees consulting.”

In September 2014, Trinseo hosted several former Dow employees,

including Harper, for the official closure of the Freeport plant. As Harper

recalls, during that event he told Duane that “he was doing some consulting

with a bunch of old polycarbonate guys from the [1980s].” As Duane recalls,

Harper did not “link his consulting activities to consulting in

polycarbonate.” Duane also did not “make the connection” that Harper

might be part of the rumored ex-Dow employees Trinseo assigned him to

investigate with KBR.

Ultimately, KBR and Trinseo did not execute a licensing deal—

Trinseo decided to stop licensing its PC technology to avoid “get[ting]

additional interfacial [PC] into the market.” 3 But KBR continued to look for

a licensing partner. In 2015, KBR identified Enex—which had worked on the

Luxi project—as a potential partner. In 2016, Enex granted KBR a license to

use its PC technology. KBR then began marketing its “PCMax” package,

advertising it as “Dow-type” PC technology.

Enex later connected KBR to Harper and the Tech Team. After

meeting with them in May 2017, KBR was “convinced” that the Tech Team

was “well qualified to fill in the gaps” KBR had “regarding the PC

technology[,] . . . including final product formulations.” In June 2017, PCS

_____________________

3

In 2014, Trinseo started dwindling down what remained of its PC business. Dow

had already sold its interest in the LG joint venture in 2010. Trinseo then closed the

Freeport plant and exited the joint venture with Sumitomo. By 2017, the only remaining

Trinseo PC production facility was the plant in Germany. Trinseo has not since

substantively engaged in the PC industry, except that in November 2024, it executed a PC

licensing deal with a company in India.

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agreed to provide KBR “technical assistance in support of a two-day sales

workshop that KBR had scheduled with LG Chemical.” Ultimately, LG

never entered into a license agreement with KBR.

In September 2017, PCS and KBR began negotiating an amendment

to their agreement. Harper told KBR he intended to develop a PDP based on

the LG plant design. In October 2017, KBR secured its first PCMax licensing

agreement with a Chinese company, Cangzhou. In November 2017, PCS

entered an amended agreement with KBR to provide consulting services.

KBR continued to market its PCMax technology as “related to

Dow/Trinseo PC technology.”

In May 2018, a member of the Tech Team emailed Duane, who was

planning to retire soon, and stated that if Duane was “interested in doing

some [PC] consulting work, [he] should contact Steve Harper.” The email

further stated that Harper and others had worked on a PC project in China

several years prior, and that Harper had been “having discussions with

KBR” regarding a “PC project for another Chinese client.” In June 2018,

KBR signed a license agreement to develop a PC plant in China for a new

client, Pingmei.

B

On February 12, 2020, Trinseo filed its original complaint against

Harper, SHC, and PCS (collectively, the “Harper Defendants”). It filed a

second amended complaint adding several claims and defendants, including

KBR, on January 11, 2022. Relevant to this appeal, Trinseo alleged that the

Harper Defendants and KBR misappropriated ten of Trinseo’s trade secrets

in violation of the Defend Trade Secrets Act (DTSA): (1) the Process

Control Strategy and Concept and Control Algorithms (Process Control

Strategy), (2) Raw Materials Specifications/Composition, (3) the Phosgene

Reactor Design and Associated Pressure Vessel Containment (Phosgene

Reactor), (4) the Continuous Plug Flow Oligomerization Reactor Inside

Pressure Vessel Containment (Oligomerization Reactor), (5) the Thermal

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Stabilizer Addition System, (6) the Steam Devolatilization Process, (7) the

Polymer Solution Atomizer Nozzle, (8) the Snake Design, (9) Polycarbonate

Product Composition, Formulations, or Recipes, and (10) Negative and

Positive Knowledge. Trinseo also alleged, in the alternative,

misappropriation of confidential information under Texas law, but the

district court found the claims were preempted by the Texas Uniform Trade

Secrets Act (TUTSA) and granted summary judgment.

Approximately a year before trial, KBR moved to exclude the

opinions of Trinseo’s damages expert, Thomas Pastore (Pastore). KBR

specifically argued that Pastore was required to apportion damages between

the misappropriated features and non-misappropriated features of Trinseo’s

PC technology. On November 30, 2023, the district court granted KBR’s

motion in part. As to KBR’s apportionment argument, the district court

noted that, in the Fifth Circuit, “the proper measure of damages in cases of

trade secret appropriation is determined by reference to the analogous line of

cases from patent law,” which require apportionment “when the accused

technology does not make up the entirety of the accused product.” The

district court stated that “Trinseo appear[ed] willing to gamble that it [could]

convince the jury that the allegedly misappropriated trade secrets provided

all of the value of KBR’s end usage/product,” but if Trinseo did not,

“Pastore’s testimony [would] be totally undermined.” It concluded that

although Trinseo’s “all-or-nothing approach” could fail, the approach did

not “render Pastore’s opinions inadmissible.”

Trinseo presented Pastore’s testimony to support its damages model

at trial. Pastore’s estimation of damages was premised on the purported

misappropriation of all ten alleged trade secrets. Pastore did not individually

valuate each of the alleged trade secrets or any specific combination of trade

secrets, nor did he provide a method for the jury to do so.

Out of the ten trade secrets alleged, the jury found only four—the

Process Control Strategy, Phosgene Reactor, Oligomerization Reactor, and

Steam Devolatilization Process—actually qualified as trade secrets. The jury

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further found that the defendants misappropriated all four of these secrets.

The jury awarded Trinseo $50 million in reasonable royalty damages and

$21,206,132 in unjust enrichment damages against KBR; $0.00 in unjust

enrichment damages against Harper; $2,930,817 in unjust enrichment

damages against SHC; and $2,549,706 in unjust enrichment damages

against PCS. The jury also found by a preponderance of the evidence that

Harper is responsible for the conduct of SHC and PCS. Finally, the jury

rejected the Harper Defendants’ and KBR’s limitations defenses. 4

After trial, all defendants moved for judgment as a matter of law under

Federal Rule of Civil Procedure 50(b). The district court found that the

jury’s liability and affirmative defense findings were supported by the

evidence. As to damages, it found that—as in patent law—“apportionment

is generally required in trade secrets cases involving multiple alleged trade

secrets.” According to the district court, “to protect itself in the event that

the jury finds liability on some, but not all, alleged trade secrets, a plaintiff

must provide either (1) evidence that apportions value per trade secret, or (2)

evidence that provides some methodology or guidance for how the jury may

do so itself.” It determined that “Trinseo’s failure to apportion [its trade

secret damages], combined with the jury’s failure to find liability on all ten

alleged trade secrets [was] fatal.” As a result, the district court granted

judgment as a matter of law and vacated the reasonable royalty and unjust

enrichment damages against KBR and the Harper Defendants. 5

_____________________

4

Specifically, the jury found by a preponderance of the evidence that Trinseo had

not discovered, nor should have discovered through the exercise of reasonable diligence,

(1) Harper’s first alleged misappropriation before February 12, 2017, or (2) KBR’s first

alleged misappropriation before November 27, 2017.

5

As to the unjust enrichment award against KBR, the district court made a

“contingent alternative finding” that, in the event this court found apportionment was not

required, the jury’s award was otherwise unsupported by the evidence. On this basis, the

district court granted KBR’s request for remittitur and reduced the award to $10.5 million.

8

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In the same order resolving the Rule 50(b) motions, the district court

granted Trinseo’s motion for a permanent injunction. It subsequently

entered an order enjoining KBR and the Harper Defendants from using

Trinseo’s trade secrets. The district court then entered a final, take-nothing

judgment against Trinseo. Trinseo moved for a new trial on damages, which

the district court summarily denied.

Trinseo, KBR, and the Harper Defendants filed timely appeals. The

parties first challenge different aspects of the district court’s resolution of the

motions for judgment as a matter of law. Trinseo also appeals the district

court’s denial of a new trial on damages, and argues the district court

erroneously determined that Trinseo’s misappropriation of confidential

information claims were preempted by TUTSA. 6 Finally, KBR asserts the

district court abused its discretion in granting a permanent injunction.

II

Trinseo argues the district court erred in granting judgment as a

matter of law and vacating the damages awarded by the jury. KBR and the

Harper Defendants challenge the district court’s decision to sustain the

jury’s liability and affirmative defense findings.

We review decisions on Rule 50(b) motions for judgment as a matter

of law de novo, “apply[ing] the same legal standard as the district court.”

Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012). “A party

is only entitled to judgment as a matter of law on an issue where no reasonable

jury would have had a legally sufficient evidentiary basis to find otherwise.”

_____________________

We need not address the district court’s alternative finding because, as discussed below,

the district court properly vacated the damages based on Trinseo’s failure to apportion.

6

Trinseo presents a myriad of other issues on appeal. It asks the court to resolve

the “open question” of whether the jury’s response to the unjust enrichment question is

“merely advisory” and challenges the district court’s contingent grant of a remittitur. If a

new trial is granted, Trinseo also challenges certain evidentiary rulings by the district court.

Given our decision below, we need not address any of these issues.

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Apache Deepwater, L.L.C. v. W&T Offshore, Inc., 930 F.3d 647, 653 (5th Cir.

2019) (citing Fed. R. Civ. P. 50(a)(1)). “[B]ut our standard of review with

respect to a jury verdict is especially deferential.” Olibas v. Barclay, 838 F.3d

442, 448 (5th Cir. 2016) (citation modified). We draw all reasonable

inferences in the light most favorable to the verdict. Westlake Petrochemicals,

L.L.C. v. United Polychem, Inc., 688 F.3d 232, 239 (5th Cir. 2012).

A

Trinseo argues the district court erred in relying on patent law

apportionment principles to nullify the jury’s reasonable royalty and unjust

enrichment awards against KBR and the Harper Defendants. Alternatively,

it asserts there is sufficient evidence to support the jury’s award even under

patent law apportionment rules. We disagree on both points.

1

The DTSA sets forth available damages with respect to trade secret

misappropriation. 18 U.S.C. § 1836(b)(3)(B). First, courts may award

“damages for actual loss caused by the misappropriation of the trade secret”

and “damages for any unjust enrichment caused by the misappropriation of

the trade secret that is not addressed in computing damages for actual loss.”

Id. § 1836(b)(3)(B)(i). Alternatively, courts may award “the damages caused

by the misappropriation measured by imposition of liability for a reasonable

royalty for the misappropriator’s unauthorized disclosure or use of the trade

secret.” Id. § 1836(b)(3)(B)(ii).

As this court has long held, “[i]t seems generally accepted that ‘the

proper measure of damages in the case of a trade secret appropriation is to be

determined by reference to the analogous line of cases involving patent

infringement . . . .’” Univ. Computing Co. v. Lykes-Youngstown Corp., 504

F.2d 518, 535–38 (5th Cir. 1974) (quoting Int’l Indus., Inc. v. Warren

Petroleum Corp., 248 F.2d 696, 699 (3d Cir. 1957)) (reviewing numerous

patent cases to determine how damages should be assessed in the trade secret

context). Looking to patent law cases, it is well-established that “[w]hen the

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accused technology does not make up the whole of the accused product,

apportionment is required.” See Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d

1299, 1309 (Fed. Cir. 2018). In other words, a patentee “must in every case

give evidence tending to separate or apportion the defendant’s profits and

the patentee’s damages between the patented feature and the unpatented

features . . . .” Garretson v. Clark, 111 U.S. 120, 121 (1884) (citation modified).

Although we have never explicitly adopted patent law’s

apportionment principles in the trade secret context, we outlined the same

general principles in University Computing. See 504 F.2d at 537–539.

Specifically, we observed that reasonable royalty damages in trade secret

cases should yield “an apportionment of profits based on an approximation of

the actual value of the infringed device to the defendant.” Id. at 537 (emphasis

added). A plaintiff may also recover “the full total of [a] defendant’s profits

or some apportioned amount designed to correspond to the actual contribution

the plaintiff’s trade secret made to the defendant’s commercial success.” Id. at

539 (emphasis added). In short, trade secret damages—whether measured by

a reasonable royalty or lost profits—must, like patent damages, “reflect the

value attributable to the infringing features of the product, and no more.” 7

See Finjan, 879 F.3d at 1309 (quoting Ericsson, Inc. v. D–Link Sys., Inc., 773

F.3d 1201, 1226 (Fed. Cir. 2014)) (applying apportionment principles in a

patent law case).

Applying apportionment rules similar to those outlined in University

Computing, courts have vacated damages awarded by juries due to failure to

apportion in trade secret cases. See, e.g., Tex. Advanced Optoelectronic Sols.,

Inc. v. Renesas Elecs. Am., Inc., 895 F.3d 1304 (Fed. Cir. 2018) [hereinafter

TAOS]; O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 399 F. Supp. 2d

_____________________

7

Recognizing the emphasis University Computing places on apportionment,

Trinseo concedes that the “patent-law concept [of apportionment] is not necessarily

inconsistent with how this Court conceived of damages in trade secret misappropriation

cases.”

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1064 (N.D. Cal. 2005), aff’d, 221 F. App’x 996 (Fed. Cir. 2007). In TAOS,

for example, the jury found the defendant misappropriated three trade

secrets and awarded disgorgement damages. 895 F.3d at 1310. On appeal, the

Federal Circuit affirmed the jury’s liability finding as to only one of the trade

secrets. Id. at 1312–15. Because the plaintiff “did not explain which of the

trade secrets contributed to what amount of profit to be disgorged” and

instead “assigned all profits to the misappropriation of all trade secrets,”

however, the Federal Circuit found “no basis to conclude that the [one]

remaining” trade secret “support[ed] the entire award.” Id. at 1317. As a

result, it held that the “monetary award for trade secret misappropriation

must be vacated because [the court had] determined that misappropriation

liability here can properly rest on only one of the three grounds that [the

plaintiff] presented to the jury. [The plaintiff’s] calculation of monetary relief

did not distinguish among those grounds.” Id.

Likewise, in O2 Micro, the jury determined that the plaintiff had

established eleven trade secrets, but only five were misappropriated by the

defendant and only one unjustly enriched the defendant. 399 F. Supp. 2d at

1069. Prior to trial, the district court had warned the plaintiff “of the dangers

of bundling all of its alleged trade secrets damages together.” Id. at 1076.

Regardless, the plaintiff’s expert only “provided the jury with a damages

calculation based on an assumption that all of the trade secrets were

misappropriated.” Id. Because the expert did “not provide a reasonable basis

for the jury to apportion damages,” the court concluded there was no

“reasonable basis for the jury to determine the amount that [the defendant]

was unjustly enriched based upon its misappropriation of [one trade secret].”

Id. at 1077. “After the jury concluded that [the defendant] did not

misappropriate all of [the plaintiff’s] trade secrets,” the court reasoned that

the “expert testimony regarding damages for misappropriation of all trade

secret[s] was useless to the jury.” Id. The district court then granted the

defendant’s motion for judgment as a matter of law as to the jury’s unjust

enrichment award. Id.

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The reasoning in TAOS and O2 Micro is consistent with the

apportionment principles outlined by this court in University Computing, and

we find it persuasive. 8 They also reflect the commonsense notion that trade

secret damages must be tied to the defendant’s wrongful conduct—i.e., the

misappropriation. Here, Trinseo presented damage estimations that

assumed misappropriation of all ten alleged trade secrets. But the jury found

only four trade secrets were misappropriated by KBR and the Harper

Defendants. Because Trinseo had “bundl[ed] all of its alleged trade secrets

damages together,” the jury did not have a reasonable basis to award damages

_____________________

8

Although TAOS and O2 Micro were in the same procedural posture as this case,

we note that several district courts have applied the same apportionment principles when

resolving motions for summary judgment and to exclude expert testimony. See, e.g., Alcatel

USA, Inc. v. Cisco Sys., Inc., 239 F. Supp. 2d 660, 671 (E.D. Tex. 2002) (granting summary

judgment on the plaintiff’s state law trade secret claims because the plaintiff “fail[ed] to

apportion the value of its alleged trade secrets” and instead “attempt[ed] to attribute every

penny of . . . [its] technology to the value of its alleged trade secrets”); LivePerson, Inc. v.

[24]7.AI, Inc., No. 17-CV-01268-JST, 2018 WL 6257460, at *2 (N.D. Cal. Nov. 30, 2018)

(“[The expert’s] opinion must be excluded because he does not apportion trade secret

misappropriation damages among particular alleged trade secrets, and offers no

methodology for the jury to calculate trade secret misappropriation damages on fewer than

all of the 28 alleged trade secrets in the case.”); Int’l Med. Devices, Inc. v. Cornell, No.

20CV3503CBMRAOX, 2023 WL 4295157, at *5 (C.D. Cal. Feb. 13, 2023) (precluding an

expert from “testifying that the jury should award the entire $15.4 million lump-sum

royalty if the jury found that only one [out of four] of Plaintiffs’ alleged trade secrets has

been misappropriated”); Ford Motor Co. v. Versata Software, Inc., No. 15-11624, 2018 WL

10733561, at *11 (E.D. Mich. July 9, 2018) (excluding an expert’s testimony regarding trade

secret damages because he “failed to apportion [the plaintiff’s] alleged damages on a trade-

secret-by-trade-secret basis” and so, “if the jury were to conclude that [the defendant]

misappropriated less than all of [the plaintiff’s] trade secrets . . . , then [the expert’s]

damages calculation would not assist the jury in calculating damages and could only serve

to confuse them”). This was the context in which the district court in this case first faced

the apportionment issue, as KBR moved to exclude Pastore’s opinions based on failure to

apportion. Although the district court denied the motion to exclude on this basis, it warned

Trinseo that it’s its “all-or-nothing approach” to damages was a “gamble.” It further put

Trinseo on notice that Pastore’s testimony would be “totally undermined” if Trinseo

failed to obtain a verdict on all ten alleged trade secrets.

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based on the misappropriation of only four trade secrets. 9 See O2 Micro, 399

F. Supp. 2d at 1076; TAOS, 895 F.3d at 1317.

Trinseo urges us to look instead to the Sixth Circuit’s decision in

Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc., 53 F.4th 368 (6th Cir.

2022), which Trinseo asserts rejected O2 Micro and TAOS. But Caudill

distinguished O2 Micro and TAOS, emphasizing that the expert did not take

an “all-or-nothing approach” and “gave the jury options” that “allowed the

jury to calculate the value” of one trade secret “even while finding no

misappropriation of” other trade secrets. 53 F.4th at 389. Trinseo’s expert

did not give the jury similar options.

Trinseo also relies on Bishop v. Miller, 412 S.W.3d 758 (Tex. App.—

Houston [14th Dist.] 2013, no pet.), arguing it represents a “flexible, non-

categorical” approach to trade secret damages. In Bishop, the defendant

argued the plaintiff’s expert’s “damages calculations were unreliable

because he failed to provide separate values for each of the items the jury

found to be [the plaintiff’s] trade secrets and instead provided only one value

for misappropriation.” 412 S.W.3d at 777–78. The court rejected that

argument, however, because the jury found that the plaintiff “owned a

compilation trade secret comprised of some or all of the thirteen items listed in

the jury charge.” Id. at 778 (emphasis added). The jury in this case was not

presented with a question regarding compilation trade secrets.

Finally, Trinseo argues that the district court’s so-called “strict

apportionment” requirement—a term that the district court used twice in its

_____________________

9

Trinseo argues O2 Micro is not instructive because the district court ultimately

awarded reasonable royalty damages. But the district court in O2 Micro determined that the

plaintiff’s “reasonable royalty estimate” was not “plagued with the same problem as its

unjust enrichment damages award” because there was expert testimony “that the parties

in a hypothetical negotiation would agree to a $900,000 paid-up reasonable royalty for any

one group of trade secrets.” 399 F. Supp. at 1077–78. The expert also testified that the

trade secrets found by the jury “would be an example of a group of trade secrets.” Id. at

1078. Trinseo did not present similar evidence.

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48-page order—conflicts with the flexible approach to trade secret damages

adopted in University Computing. See 504 F.2d at 535. First, although this

court has endorsed a flexible approach to trade secret damages, that does not

disturb the settled principle that “[e]stimation of damages . . . should not be

based on sheer speculation.” See Metallurgical Indus. Inc. v. Fourtek, Inc., 790

F.2d 1195, 1208 (5th Cir. 1986); Alcatel, 239 F. Supp. 2d at 669 (“While the

Court recognizes that some degree of speculation is inherent in calculating a

suppositious licensing agreement between two parties that has never

occurred, this hypothetical construct, however, must contain some degree of

certitude.”). Allowing damages to be awarded for the misappropriation of

four trade secrets based on an estimation that presumed misappropriation of

ten trade secrets lends itself to such speculation. Second, despite its passing

use of the term, the district court did not create a novel “strict

apportionment” theory. Nor do we.

Rather, we hold that, like in patent law cases, trade secret

misappropriation damages must reflect the value attributable to the

information or technology that is misappropriated by the defendant. It

follows that, 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. 10 Trinseo failed to

present evidence that would allow the jury to do so in this case.

2

Trinseo next argues that, even if apportionment principles apply in

this case, the district court should have accepted the jury’s reasonable royalty

_____________________

10

There are many ways a plaintiff could “apportion” damages. Given that “every

case requires a flexible and imaginative approach to the problem of damages,” we need not

give an exhaustive list of ways a plaintiff may do so. See Univ. Computing, 504 F.2d at 538.

But a few possible methods come to mind. For instance, a plaintiff could individually

valuate each alleged trade secret. A plaintiff could also valuate a group of trade secrets.

Alternatively, a plaintiff could provide a methodology for the jury to calculate the value of

a particular trade secret or group of trade secrets.

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award under either the “built-in apportionment” theory or “entire market

value” exception. 11 Trinseo also argues that the jury’s verdict should be

sustained because the four trade secrets it found were the “heart, core, and

driver of the demand for Trinseo’s PC manufacturing technology.”

a

KBR argues that Trinseo has forfeited its “built-in apportionment”

argument. “A party forfeits an argument by failing to raise it in the first

instance in the district court—thus raising it for the first time on appeal—or

by failing to adequately brief the argument on appeal.” Rollins v. Home Depot

USA, 8 F.4th 393, 397 (5th Cir. 2021). We have discretion, however, to

consider an issue raised for the first time on appeal where “it is a purely legal

matter and failure to consider the issue will result in a miscarriage of justice.”

Id. at 398 (quoting Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th

Cir. 2008)).

Here, Trinseo concedes it failed to raise its “built-in apportionment”

argument in the district court. The issue is also not a “purely legal matter,”

as Trinseo admits that it “has both legal and factual aspects.” See id. “Nor is

there manifest injustice to correct here” given that “nothing prevented”

Trinseo from raising its “built-in apportionment” argument in responding to

KBR’s motion for judgment as a matter of law. See id. at 399. There is “no

principled basis” to address Trinseo’s forfeited “built-in apportionment”

argument. See id. at 398.

b

KBR also argues Trinseo has waived its arguments regarding the

entire market value exception. Where an appellant “fail[s] to challenge the

district court’s finding of waiver,” the appellate court is “precluded from

_____________________

11

Trinseo does not rely on the “built-in apportionment” rule or entire market

value exception in the context of the jury’s unjust enrichment awards. Even so, our analysis

below would apply to the unjust enrichment awards with equal weight.

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reaching the arguments” the district court found waived. XL Specialty Ins.

Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 152 (5th Cir. 2008).

Although the district court in this case provided an in-depth analysis

of the entire market value exception on the merits, it also found Trinseo

waived the issue. Specifically, the district court stated:

It is worthwhile to examine Trinseo’s position on the entire

market value rule in the broader context of the litigation.

Trinseo did not request a jury instruction or question

pertaining to any interpretation of the entire market value rule.

In fact, it specifically argued against including KBR’s

proposed instruction on the issue. At the January 22nd charge

conference, KBR requested an instruction on the entire

market value rule[.] . . . Trinseo objected, arguing that patent

jury instructions cannot be so easily thrown into a trade secret

case[] . . . . Consequently, the Court did not include, and

Trinseo did not request, an instruction on the entire market

value based on either line of cases. Thus, it waived its

application.

Trinseo has challenged the district court’s conclusion on the merits, but it

makes no mention of the district court’s finding of waiver. Trinseo’s failure

to do so precludes this court from now addressing the entire market value

issue. See id.

c

Finally, KBR argues Trinseo’s “heart, core, and value driver”

argument is another “thinly veiled entire-market-value-rule argument,”

which the district court correctly held was waived and wrong on the merits.

It is unclear how Trinseo’s “heart, core, and value driver” argument

differs in any meaningful respect from the entire market value rule, which is

“a narrow exception” to the apportionment requirement that “allows for the

recovery of damages based on the value of an entire apparatus containing

several features, when the feature patented constitutes the basis for customer

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demand.” LaserDynamics, Inc. v. Quanta Comput., Inc., 694 F.3d 51, 67 (Fed.

Cir. 2012) (citation modified). The only case Trinseo cites that applied a

version of the “heart, core, and value driver” concept did so under the

assumption that apportionment was required. See EchoSpan, Inc. v. Medallia,

Inc., No. 24-4751, 2025 WL 3046753, at *1 (9th Cir. Oct. 31, 2025)

(unpublished). In EchoSpan, the district court vacated the jury’s unjust

enrichment award because the jury found the defendant misappropriated

only one out of nine alleged trade secrets and the plaintiff “did not apportion

this relief on a trade-secret-by-trade-secret basis.” Id. The Ninth Circuit

acknowledged that, “[i]n a highly technical context, apportionment

testimony may be essential to provide a reasonable basis for a jury to value a

defendant’s gain.” Id. at *2 (distinguishing O2 Micro). But in EchoSpan, the

plaintiff’s “trade secrets could be explained in lay terms” and the jury heard

evidence regarding “the relative importance” of the jury-found trade secret

to the “system’s commercial value.” Id. at *2. Indeed, the jury heard that

only that jury-found secret was the “‘core’ tool that ‘enables everything.’”

Id. As a result, the jury in EchoSpan “could determine from the evidence

which alleged trade secrets would drive the most value” in the defendant’s

product. Id.

This case, which presents highly technical trade secrets, is markedly

different from EchoSpan. Here, the jury found four trade secrets: the Process

Control Strategy, Phosgene Reactor, Oligomerization Reactor, and Steam

Devolatilization Process. At trial, Trinseo’s expert testified that the

Oligomerization Reactor and Steam Devolatilization Process were among the

alleged trade secrets that “form[ed] the heart or the core of the value” of

Trinseo’s PC technology. That very same expert testified that other, non-

trade secret components were the heart or core of the PC technology, including

the “thermal stabilizer,” “steam nozzle,” and “atomizing nozzle.” A

different expert opined that “the oligomerization and agglomeration were the

core and the key elements, especially the snake, the nozzles, [and] the

thermal stabilizer.” This testimony contrasts with the testimony in

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EchoSpan, i.e., that only the jury-found secret was the “core” of the system.

See id. Importantly, Trinseo also presented no evidence or methodology that

would have allowed the jury to ascribe any particular value to the jury-found

trade secrets. Pastore admitted he offered no opinion that would allow the

jury to award a “royalty value for” a particular “share” of a misappropriated

trade secret if the jury did not “find that each and every trade secret”

identified by Trinseo “was in fact misappropriated by KBR.”

* * *

In sum, Trinseo was required to present evidence that would have

allowed the jury to award a reasonable royalty that reflects “an

apportionment of profits based on an approximation of the actual value of the

infringed device to the defendant,” or an “apportioned amount” of the

defendants’ profits “designed to correspond to the actual contribution the

plaintiff’s trade secret made to the defendant’s commercial success.” See

Univ. Computing, 504 F.2d at 537, 539. This rule is consistent with the

“analogous line of cases involving patent infringement,” id. at 535 (quoting

Int’l Indus., 248 F.2d at 699), which require apportionment “[w]hen the

accused technology does not make up the whole of the accused product.”

Finjan, 879 F.3d at 1309. Because Trinseo only presented damage estimates

that assumed misappropriation of ten alleged trade secrets, the jury had no

basis for awarding damages based on the misappropriation of only the four

trade secrets it found. The district court did not err in vacating the jury’s

award of damages against KBR and the Harper Defendants.

B

KBR argues the district court erred in denying judgment as a matter

of law on the jury’s findings of liability for trade secret misappropriation. We

disagree.

1

KBR contends there is legally insufficient evidence that Trinseo’s

information qualified as “trade secrets,” as that term is defined by the

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DTSA.

Under the DTSA, information constitutes a “trade secret” where (1)

“the owner thereof has taken reasonable measures to keep such information

secret,” and (2) “the information derives independent economic value,

actual or potential, from not being generally known to, and not being readily

ascertainable through proper means by, another person who can obtain

economic value from the disclosure or use of the information.” 18 U.S.C. §

1839(3).

a

First, KBR asserts Trinseo did not take reasonable measures to keep

its information a secret, citing four instances that purportedly put Trinseo on

notice that its PC technology was publicly disclosed, and which Trinseo did

nothing to address. The first instance cited by KBR occurred in August 2011,

when SRI published a report regarding Dow’s PC technology. Second, in

May 2014, Trinseo heard about rumored ex-Dow employees “practicing

outside confidentiality boundar[ies].” Third, in September 2014, during the

Freeport plant closure, Harper told Duane that he was doing consulting work

with former Dow employees. Finally, in May 2018, a member of the Tech

Team told Duane he should contact Harper if he was interested in PC

consulting work.

For each event cited by KBR, Trinseo has pointed to competing

evidence in the record. As to the SRI report, Trinseo immediately requested

a withdrawal, inquired about sources, and worked with SRI to create a revised

report that did not contain protected information. In addition, Trinseo

assigned employees to work with KBR to investigate the rumored ex-Dow

employees. It also had a “a standing instruction” with its employees in China

to report back relevant information. Duane and Harper’s brief meeting at the

Freeport plant shows only that Trinseo was on notice that Harper was doing

consulting work; there is no evidence suggesting Trinseo was on notice that

Harper was using trade secrets. Indeed, Duane testified that Harper did not

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mention anything about “providing technology” and that consulting alone

did not have cause for concern. And Trinseo sent a demand letter to Harper

to stop misappropriating Trinseo’s PC technology a year after Duane

received an email stating that Harper’s consulting involved PC. Viewing the

evidence in the light most favorable to the verdict, the jury had sufficient

evidence to conclude that Trinseo took reasonable measures to protect its

trade secrets.

b

Second, KBR argues that Trinseo’s trade secrets were “generally

known” because Harper had circulated them in the PC industry for years

before KBR acquired the technology. “Secrecy is a relative term. The

information may be known to several persons and yet still be secret if third

parties would be willing to pay for a breach of trust in order to ascertain it.”

Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1125 (5th Cir. 1991)

(citation modified); see also Reingold v. Swiftships, Inc., 126 F.3d 645, 650 (5th

Cir. 1997) (holding that information derived economic value from not being

generally known where “it would have been extremely expensive and time

consuming for anyone to duplicate the [trade secret information] through

independent designing, planning, and construction or by reverse

engineering”).

It is true that long before KBR used Trinseo’s trade secrets, the

Harper Defendants had been disclosing that information by using the LG

plant drawings. But the jury heard testimony that the ten claimed trade

secrets were not “generally known or publicly disclosed.” Duane also

testified he did not think it would be possible for any engineer to “readily

ascertain” Trinseo’s trade secrets “without spending much time, effort[,] or

expense.” Indeed, Trinseo presented evidence suggesting KBR did not

believe it could complete its PCMax technology without the trade secret

information held by the Harper Defendants. In short, even though the trade

secrets may have been “known to several persons” due to the Harper

Defendants’ disclosures, “third parties” like KBR were still “willing to pay

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for a breach of trust in order to ascertain [them].” See Taco Cabana, 932 F.2d

at 1125 (citation modified). As a result, the jury had sufficient evidence that

the Process Control Strategy, Phosgene Reactor, Oligomerization Reactor,

and Steam Devolatilization Process were not generally known. 12

2

KBR also asserts there is legally insufficient evidence that it

misappropriated Trinseo’s technology, attacking different components of

the evidence for each of the four trade secrets the jury found. As to the

Process Control Strategy, KBR contends there was no evidence that the

Tech Team had access to this information. KBR also asserts there is

insufficient evidence of misappropriation of the Phosgene Reactor because

the jury heard Duane testify KBR did not use this technology in its PCMax

design. Finally, KBR argues that the jury heard testimony that it either did

not acquire or did not use certain elements of the Oligomerization Reactor

and Steam Devolatilization Process.

A defendant can misappropriate a plaintiff’s trade secret under the

DTSA by:

(A) acquisition of a trade secret of another by a person who

knows or has reason to know that the trade secret was acquired

by improper means; or

_____________________

12

KBR’s other arguments on this issue are also without merit. As to the Process

Control Strategy, KBR argues that Trinseo failed to sufficiently define this secret because

the jury heard testimony that no particular hardware or software was misappropriated. But

the jury heard ample evidence describing the Process Control Strategy. For example,

Duane defined it as the PC plant’s “rules . . . of operation” and as an “overview” of how

the plant runs. KBR also argues that testimony that certain components of the Phosgene

Reactor, Oligomerization Reactor, and Steam Devolatilization Process had been publicly

disclosed is fatal to Trinseo’s trade secret claims. But the jury heard testimony that

numerous other non-disclosed elements comprised these trade secrets. Viewing this

evidence in the light most favorable to the verdict, a reasonable jury could find Trinseo’s

secrets were not generally known.

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(B) disclosure or use of a trade secret of another without

express or implied consent by a person who—

(i) used improper means to acquire knowledge of the

trade secret;

(ii) at the time of disclosure or use, knew or had reason

to know that the knowledge of the trade secret was—

(I) derived from or through a person who had

used improper means to acquire the trade secret;

(II) acquired under circumstances giving rise to a

duty to maintain the secrecy of the trade secret

or limit the use of the trade secret; or

(III) derived from or through a person who owed

a duty to the person seeking relief to maintain the

secrecy of the trade secret or limit the use of the

trade secret; or

(iii) before a material change of the position of the

person, knew or had reason to know that—

(I) the trade secret was a trade secret; and

(II) knowledge of the trade secret had been

acquired by accident or mistake[.]

18 U.S.C. § 1839(5).

Here, KBR ignores the competing evidence regarding its

misappropriation for each secret found by the jury. For instance, Duane

testified that KBR did not have access to one particular software component

of the Process Control Strategy, but that “there were elements of the process

control strategy that were included in the process design” used by KBR.

There was also testimony that KBR acquired, rather than used, the Phosgene

Reactor technology from the Tech Team. See id. And, as described above,

the evidence at trial suggested the Oligomerization Reactor and Steam

Devolatilization Process comprised numerous elements other than what was

publicly disclosed. The jury also heard testimony that KBR acquired the

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No. 24-20460

Oligomerization Reactor design, which “was translated from the PDP into

[KBR’s] eventual engineering.” The same is true of the Steam

Devolatilization Process. Weighing the evidence in the light most favorable

to the verdict, we find that the jury could reasonably conclude that KBR

misappropriated the Process Control Strategy, Phosgene Reactor,

Oligomerization Reactor, and Steam Devolatilization Process.

* * *

Because sufficient evidence exists for the jury to reasonably conclude

that some of Trinseo’s information qualified as trade secrets and that KBR

misappropriated those secrets, the district court did not err in denying

KBR’s motion for judgment as a matter of law concerning liability for trade

secret misappropriation.

C

The Harper Defendants argue that the district court erred in denying

judgment as a matter of law with respect to the jury’s “alter ego” and statute

of limitations findings. Again, we disagree.

1

As to the alter ego issue, the jury found “by a preponderance of the

evidence that Stephen Harper is responsible for the conduct of” both SHC

and PCS. The Harper Defendants argue there was insufficient evidence for

the jury to reach this conclusion, and that the district court erred in finding

otherwise. But the district court determined it did not need to address the

alter ego issue, instead granting the Harper Defendants’ motion for judgment

as a matter of law only on the issue of apportionment.

Notably, the jury was charged with answering the alter ego question

only if it awarded damages as to SHC and PCS. Because we affirm the

district court’s decision to vacate the damages awarded against the Harper

Defendants, we need not address the alter ego issue.

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No. 24-20460

2

Next, the Harper Defendants argue the district court erred in denying

judgment as a matter of law on their limitations defense. Specifically, they

assert that accrual of the limitations period under the DTSA does not require

that Trinseo knew the identity of the misappropriator—it only requires that

Trinseo knew of the misappropriation, which occurred by 2014.

The DTSA provides that claims must be brought within three years

of “the date on which the misappropriation with respect to which the action

would relate is discovered or by the exercise of reasonable diligence should

have been discovered.” 18 U.S.C. § 1836(d) (emphasis added). In order for a

claim to accrue under the DTSA, the plaintiff must have discovered the

“misappropriation” as that term is defined in the statute. As discussed, the

DTSA defines “misappropriation” as “acquisition of a trade secret of

another by a person who knows or has reason to know that the trade secret was

acquired by improper means.” Id. § 1839(5)(A) (emphasis added).

Alternatively, misappropriation is defined as “disclosure or use of a trade

secret of another . . . by a person who” (1) “used improper means to acquire

knowledge of the trade secret”; (2) “knew or had reason to know” the trade

secret was acquired or derived by particular means; or (3) “before a material

change of the position of the person, knew or had reason to know that” that

“the trade secret was a trade secret” and the “knowledge of the trade secret

had been acquired by accident or mistake.” Id. § 1839(5)(B) (emphasis

added).

The question here is whether Trinseo discovered, or should have

discovered, the “misappropriation with respect to which [this] action would

relate” before February 12, 2017. See id. § 1836(d). The Harper Defendants

assert that three events triggered the limitations period: (1) the August 2011

SRI report, (2) the May 2014 meeting with KBR wherein Trinseo learned

about “ex-Dow employees rumored to be practicing outside confidentiality

boundar[ies],” and (3) the Freeport plant closure in 2014 where Harper told

Duane about his consulting practice.

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First, although the 2011 report may have put Trinseo on notice that

SRI potentially acquired trade secret information, the evidence establishes

that Trinseo quickly asked SRI to take the report down, asked about the

sources, and collaborated on a revised report that did not include proprietary

information. SRI told Trinseo the information was from “patents, public

documents[,] and various consultants,” but did not disclose the identity of

those consultants. Giving deference to the jury’s verdict, there is sufficient

evidence that the SRI report did not cause Trinseo to discover the

“misappropriation with respect to which the action” against Harper “would

relate.” See id. In other words, the jury could reasonably conclude Trinseo

did not discover “acquisition of a trade secret . . . by a person who knows or

has reason to know that the trade secret was acquired by improper means”

or “disclosure or use of a trade secret . . . by a person who” either “used

improper means to acquire knowledge of the trade secret” or “knew or had

reason to know” the knowledge of the trade secret was derived or acquired

under the circumstances prescribed by the statute. See id. § 1839(5).

Second, although Trinseo learned about unidentified ex-Dow

employees potentially practicing outside confidentiality boundaries in May

2014, this does not establish as a matter of law that Trinseo learned about the

trade secret misappropriation—as defined by the DTSA—that gave rise to

Trinseo’s lawsuit against Harper. Trinseo and KBR also agreed to work

together to investigate the rumored ex-Dow employees, and Trinseo had a

standing instruction with its employees in China “to report back relevant

information.” At bottom, the Harper Defendants dispute whether Trinseo’s

efforts give rise to “reasonable diligence”—a question of fact that was

properly left to the jury. See Margolies v. Deason, 464 F.3d 547, 553 (5th Cir.

2006).

Third, there is competing evidence with respect to Harper and

Duane’s conversation during the closure of the Freeport plant. Harper

testified he told Duane he was engaged in PC consulting, but Duane recalled

that Harper only mentioned consulting—not PC consulting. A reasonable

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jury could conclude that a former employee’s consulting work did not trigger

a duty to investigate. See Aspen Tech., Inc. v. M3 Tech., Inc., 569 F. App’x 259,

264 n.9 (5th Cir. 2014) (“[T]he limitations period does not begin to run until

a plaintiff knew or should have known ‘that it was wrongfully injured,’ and

there is nothing ‘wrongful in and of itself’ for employees to ‘leave their

employ and compete with their former employers.’” (quoting Pressure Sys.

Int’l, Inc. v. Sw. Rsch. Inst., 350 S.W.3d 212, 217 (Tex. App.—San Antonio

2011, pet. denied))).

The jury had a reasonable basis for concluding that Trinseo did not

discover, nor could have discovered through the exercise of reasonable

diligence, Harper’s first alleged misappropriation before February 12, 2017.

The district court did not err in denying judgment as a matter of law on the

Harper Defendants’ limitations defense.

III

Trinseo asserts that the district court erred in denying its motion for

a new trial on damages, arguing that the district court retroactively applied

new rules of law by requiring apportionment.

“A district court has discretion to grant a new trial under Rule 59(a)

of the Federal Rules of Civil Procedure when it is necessary to do so ‘to

prevent an injustice.’” Seibert v. Jackson Cnty., 851 F.3d 430, 438 (5th Cir.

2017) (quoting United States v. Flores, 981 F.2d 231, 237 (5th Cir. 1993)). The

district court’s decision is reviewed for abuse of discretion. Id. “[R]eview of

the denial of a motion for new trial is especially deferential.” Thompkins v.

Belt, 828 F.2d 298, 302 (5th Cir. 1987).

By the time Trinseo tried its case, this court had long held that “the

proper measure of damages in the case of a trade secret appropriation is to be

determined by reference to the analogous line of cases involving patent

infringement . . . .” Univ. Computing, 504 F.2d at 535 (quoting Int’l Indus.,

248 F.2d at 699). University Computing also cited general apportionment

principles. Id. at 537, 539. KBR raised the apportionment rule in a motion to

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exclude expert testimony approximately one year before trial. In addressing

KBR’s argument, the district court expressly warned Trinseo—more than a

month before trial and multiple times thereafter—that its “all-or-nothing

approach” was a “gamble” and that the testimony of Trinseo’s expert would

be “totally undermined” if Trinseo failed to obtain a verdict on all ten of its

alleged trade secrets. Trinseo has not shown that the district court abused its

discretion by denying its motion for new trial. Nor has it shown that its

decision to take the all-or-nothing approach in the face of longstanding

precedent and the district court’s warning warrants a new trial to prevent

injustice.

IV

Next, Trinseo appeals the district court’s summary judgment ruling

on its misappropriation of confidential information claims, arguing that

TUTSA does not preempt claims asserted in the alternative to trade secret

claims. 13

We review the grant of summary judgment de novo. Smith v. Reg’l

Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is proper

“if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine dispute as to a material fact exists when, after

considering the pleadings, depositions, answers to interrogatories,

admissions on file, and affidavits, a court determines that the evidence is such

_____________________

13

In the alternative, Trinseo asks this court to certify the question of whether

TUTSA preempts common law claims for misappropriation of confidential information to

the Texas Supreme Court. Because there is persuasive authority from state appellate courts

that provide guidance on the issue presented, we decline to do so. See Associated Mach. Tool

Techs. v. Doosan Infracore Am., Inc., 745 F. App’x 535, 538 (5th Cir. 2018) (unpublished)

(“We have at times, but not invariably, applied certain factors in deciding whether to

certify: (1) the existence of sufficient sources of state law; (2) the degree to which

considerations of comity are relevant; and (3) practical limitations.”).

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that a reasonable jury could return a verdict for the party opposing the

motion.” Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013).

The Texas Supreme Court has not addressed the extent to which

TUTSA preempts misappropriation of confidential information claims

premised on the same information as misappropriation of trade secret claims,

so we “must make an ‘Erie guess’ as to how it would do so.” Brand Servs.,

L.L.C. v. Irex Corp., 909 F.3d 151, 157 (5th Cir. 2018) (footnote omitted)

(quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.

2007)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). We first look

to the “primary sources of law—here, [TUTSA]—and then to the decisions

of state intermediate courts.” Brand Servs., 909 F.3d at 157.

A

TUTSA “displaces conflicting tort, restitutionary, and other law of

this state providing civil remedies for misappropriation of a trade secret,”

except that the statute does not preempt “contractual remedies,” “criminal

remedies,” or “other civil remedies that are not based upon

misappropriation of a trade secret.” Tex. Civ. Prac. & Rem. Code

Ann. § 134A.007. TUTSA defines a “trade secret” as “all forms and types

of information” where (1) “the owner of the trade secret has taken

reasonable measures under the circumstances to keep the information

secret,” and (2) “the information derives independent economic value, actual

or potential, from not being generally known to, and not being readily

ascertainable through proper means by, another person who can obtain

economic value from the disclosure or use of the information.” Id. §

134A.002(6). As with the Uniform Trade Secrets Act (UTSA), TUTSA

provides it “shall be applied and construed to effectuate its general purpose

to make uniform the law with respect to the subject of this chapter among

states enacting it.” Id. § 134A.008.

In Brand Services, this court interpreted the preemption provision in

the Louisiana Uniform Trade Secrets Act (LUTSA), which is substantively

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identical to TUTSA’s preemption provision, to determine whether a

common-law conversion claim for confidential information was preempted.

909 F.3d at 158–59; compare La. Stat. Ann. § 51:1437 with Tex. Civ.

Prac. & Rem. Code Ann. § 134A.007. We held that “the plain text of

LUTSA would preclude a civilian law conversion claim involving

confidential information that qualifies as a trade secret under LUTSA.”

Brand Servs., 909 F.3d at 158. But given that “courts have come to varying

conclusions about the [UTSA’s] preemption provision’s intended scope,”

this court found it necessary to “look to intermediate state court decisions”

to determine whether claims premised on confidential information that is not

a trade secret are also preempted. Id. Because “Louisiana appellate courts

have twice held that LUTSA does not preempt where non-trade secret

information was at issue,” we held “LUTSA does not preempt civilian law

claims for conversion of information that does not constitute a trade secret

under LUTSA.” Id. at 159.

Like LUTSA, TUTSA preempts claims premised on

misappropriation of a trade secret and does not preempt “civil remedies that

are not based upon misappropriation of a trade secret.” Tex. Civ. Prac.

& Rem. Code Ann. § 134A.007 (emphasis added). But the text does not

answer the question of whether a plaintiff can plead misappropriation of

confidential information in the alternative to a trade secret claim, where both

claims are admittedly premised on the same information. And, as noted in

Brand Services, “courts interpreting their respective states’ versions of the

[UTSA] have not uniformly applied UTSA’s preemption provision.” 909

F.3d at 158. Under these circumstances, it is appropriate also to look to Texas

intermediate court decisions. See id.

B

Texas intermediate courts have consistently held that “a common law

claim is preempted by TUTSA when the gravamen of the claim duplicates a

TUTSA claim.” Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV,

2023 WL 8262764, at *16 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023,

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no pet.) (finding that breach of fiduciary duty claims were preempted to the

extent based on misappropriation of trade secrets and confidential

information); see also Super Starr Int’l, LLC v. Fresh Tex Produce, LLC, 531

S.W.3d 829, 843 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.)

(holding that breach of fiduciary duty claims premised on confidential and

proprietary information were preempted because they “duplicate[d] [the

plaintiff’s] alleged violation of [TUTSA]”); Title Source, Inc. v.

HouseCanary, Inc., 612 S.W.3d 517, 533 (Tex. App.—San Antonio 2020, pet.

denied) (vacating a jury’s fraud finding and holding the claim was preempted

to the extent the “foundation” of the claim was “an assertion that [the

defendant] misappropriated [the plaintiff’s] trade secrets”); Coe v. DNOW

LP, 718 S.W.3d 338, 354–55, 369–70 (Tex. App.—Houston [14th Dist.] 2025,

pet. filed) (holding that a civil conspiracy theory of trade secret liability, as

well as fiduciary duty claims premised on trade secret misappropriation, were

preempted). In other words, TUTSA “preempts claims that rely on the

same facts as a trade-secret-misappropriation claim . . . .” Coe, 718 S.W.3d at

353.

In determining whether a claim is preempted, Texas courts look to

“the substance of the facts alleged rather than to the way a claim is pleaded.”

Id. at 355. For instance, even where a claim is premised on “confidential

information” rather than trade secrets, that claim is preempted if “as

pleaded” by the plaintiffs, “the confidential and proprietary information at

issue . . . falls within TUTSA’s definition of a trade secret.” Reynolds, 2023

WL 8262764, at *18. “[A]s the Supreme Court of Texas has recognized in

other contexts, ‘the law should not reward artful pleading.’” Coe, 718 S.W.3d

at 354 (quoting Pitts v. Rivas, 709 S.W.3d 517, 525 (Tex. 2025)).

Here, Trinseo asserted its misappropriation of confidential

information claims in the “alternative” and based those claims entirely on

the information that it alleged constituted trade secrets. Looking to the

substance of the claims, Trinseo alleged that it used the confidential

information in its business, which provided “an opportunity to obtain an

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advantage over competitors.” Trinseo further asserted that it “owned this

confidential information and took reasonable steps under the circumstances

to keep that information substantially secret.” A Texas intermediate court

has determined that nearly identical allegations “show[ed] that even the

confidential and proprietary information at issue . . . derives independent

economic value from not being generally known or readily ascertainable by

proper means and is the subject of reasonable efforts to maintain its secrecy.”

See Reynolds, 2023 WL 8262764, at *18 (citing Tex. Civ. Prac. & Rem.

Code Ann. § 134A.002(6)). In other words, “as pleaded” by Trinseo, even

the information that it alleges is confidential “falls within TUTSA’s

definition of a trade secret.” See id. And regardless of the labels chosen by

Trinseo, the substance of its common law claims “duplicate” its trade secret

claims. See Super Starr, 531 S.W.3d at 843. Because Trinseo’s

misappropriation of confidential information claims “rely on the same facts

as [its] trade-secret-misappropriation claim[s],” those claims are preempted

by TUTSA. See Coe, 718 S.W.3d at 353.

The district court did not err in granting summary judgment on

Trinseo’s misappropriation of confidential information claims.

V

Finally, KBR appeals the district court’s grant of a permanent

injunction, arguing that Trinseo failed to establish the necessary elements to

obtain injunctive relief.

A grant of a permanent injunction is reviewed for abuse of discretion.

Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 308 (5th Cir.

2023). “The district court abuses its discretion if it ‘(1) relies on clearly

erroneous factual findings . . . , (2) relies on erroneous conclusions of law . . . ,

or (3) misapplies the factual or legal conclusions when fashioning its

injunctive relief.’” Spirit Aerosystems, Inc. v. Paxton, 142 F.4th 278, 284 (5th

Cir. 2025) (quoting BNSF Ry. Co. v. Int’l Ass’n of Sheet Metal, Air, Rail &

Transp. Workers – Transp. Div., 973 F.3d 326, 333–34 (5th Cir. 2020)). “The

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district court’s order is entitled to deference, but we review de novo any

questions of law underlying the decision.” BNSF Ry. Co., 973 F.3d at 334.

To obtain a permanent injunction, a plaintiff must establish:

(1) that it has suffered an irreparable injury; (2) that remedies

available at law, such as monetary damages, are inadequate to

compensate for that injury; (3) that, considering the balance of

hardships between the plaintiff and defendant, a remedy in

equity is warranted; and (4) that the public interest would not

be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

As to the first factor, Trinseo has demonstrated it will suffer harm by

the continued use of its trade secrets. For example, Trinseo presented

evidence that it decided to slow down its PC licensing efforts to avoid

“get[ting] additional interfacial [PC] into the market” because doing so may

have an “effect on the market.” But KBR plans to continue putting Dow-

like PC technology in the market by opening additional plants. This threat of

disclosure constitutes irreparable harm. 14 See Heil Trailer Int’l Co. v. Kula,

542 F. App’x 329, 336 (5th Cir. 2013) (unpublished) (noting that, under

Texas law, the threat of trade secret disclosure constitutes irreparable

injury).

As to the second factor, KBR argues Trinseo had an adequate remedy

at law because monetary damages would sufficiently compensate for

_____________________

14

KBR argues Trinseo has not demonstrated irreparable harm because it delayed

seeking injunctive relief until after trial and because Trinseo long ago exited the PC

business. Delay in seeking an injunction may be one factor that weighs against granting an

injunction, but it is not determinative. See Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185,

1193 (5th Cir. 1975) (finding that the movant’s three-month delay in seeking injunctive

relief “is not determinative of whether relief should be granted”). Regardless, Trinseo

contemplated seeking injunctive relief from the beginning of its lawsuit, as its second

amended complaint includes a request for a permanent injunction. Trinseo also has not

wholly exited the PC market, as evidenced by its November 2024 PC licensing deal with a

company in India.

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Trinseo’s injuries caused by KBR’s misappropriation. But ample evidence

at trial showed KBR intended to continue licensing its PCMax technology.

A monetary remedy would not be adequate to protect Trinseo from that

future harm.

For the balance of hardships, KBR complains about costs or

inconvenience associated with complying with an injunction. But “when the

potential harm to each party is weighed, a party can hardly claim to be harmed

where it brought any and all difficulties occasioned by the issuance of an

injunction upon itself.” Texas v. United States, 809 F.3d 134, 187 n.203 (5th

Cir. 2015) (citation modified) (quoting Kos Pharm., Inc. v. Andrx Corp., 369

F.3d 700, 728 (3d Cir. 2004)). And Trinseo presented evidence that KBR’s

continued trade secret misappropriation is harmful because it devalues

Trinseo’s PC technology.

On the final factor, protection against the misappropriation of trade

secrets serves the public interest. See Aspen Tech., 569 F. App’x at 273

(affirming the grant of a permanent injunction in a trade secret case in part

because “it was in the interest of public policy to prohibit the sale and use of

[the defendant’s] products . . . that were derived from the improper

misappropriation of trade secrets”). It serves the public interest to protect

against KBR’s further misappropriation of Trinseo’s secrets.

The district court did not abuse its discretion in granting the

permanent injunction.

* * *

The district court’s judgment is in all respects AFFIRMED.

34