Petition for Writ of Certiorari — Tata Consultancy Services Limited, et al., Petitioners, v. Computer Sciences Corporation
Supreme Court briefMar 19, 2026
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No. 25-____
IN THE
Supreme Court of the United States
————
TATA CONSULTANCY SERVICES LIMITED;
TATA AMERICA INTERNATIONAL CORPORATION,
Petitioners,
v.
COMPUTER SCIENCES CORPORATION,
Respondent.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
————
PETITION FOR WRIT OF CERTIORARI
————
ANAND K. SHARMA
JOHN F. BASH
RAJEEV GUPTA
Counsel of Record
JOHN M. WILLIAMSON
JACOB M. BLISS
LUKE J. MCCAMMON
OLIVIA HORTON
FINNEGAN, HENDERSON,
QUINN EMANUEL URQUHART
FARABOW, GARRETT &
& SULLIVAN, LLP
300 W. 6th St., Suite 2010
DUNNER, LLP
901 New York Avenue, NW Austin, Texas 78701
(737) 667-6100
Washington, DC 20001
johnbash@quinnemanuel.com
(202) 408-4000
Counsel for Petitioners
March 19, 2026
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
QUESTIONS PRESENTED
1. Under the Defend Trade Secrets Act, 18 U.S.C.
§ 1836, can a plaintiff obtain a monetary award for
unjust enrichment even if it suffered no harm beyond
any actual loss from the defendant’s misappropriation
of its trade secrets?
2. Under State Farm Mutual Automobile Insurance
Co. v. Campbell, 538 U.S. 408 (2003), can a ratio of
punitive damages to compensatory damages in excess
of 1:1 violate due process when compensatory damages are substantial?
ii
PARTIES TO THE PROCEEDING
Petitioners are Tata Consultancy Services Limited
(TCS) and Tata America International Corporation,
which were appellants below and defendants in the
District Court.
Respondent is Computer Sciences Corporation
(DXC), which was appellee below and plaintiff in the
District Court.
iii
RULE 29.6 DISCLOSURE STATEMENT
Petitioner Tata Consultancy Services Limited
(TCS) is a publicly traded company. Its shares are
publicly traded on the National Stock Exchange of India and the Bombay Stock Exchange. A majority of its
stock is owned by Tata Sons Private Limited, which is
not a publicly traded company. No publicly traded
company owns 10% or more of Tata Consultancy Services Limited’s stock.
Petitioner Tata America International Corporation is a wholly owned subsidiary of Tata Consultancy
Services Limited.
iv
RELATED PROCEEDINGS
United States District Court (N.D. Tex.):
Computer Sciences Corp. v. Tata Consultancy
Servs. Ltd., No. 3:19-cv-0970-X (June 13, 2024)
United States Court of Appeals (5th Cir.):
Computer Sciences Corp. v. Tata Consultancy
Servs. Ltd., No. 24-10749, 159 F.4th 429 (Nov.
21, 2025)
v
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
PARTIES TO THE PROCEEDING ........................... ii
RULE 29.6 DISCLOSURE STATEMENT ............... iii
RELATED PROCEEDINGS ...................................... iv
TABLE OF AUTHORITIES ......................................vii
PETITION FOR WRIT OF CERTIORARI ................. 1
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 3
JURISDICTION .......................................................... 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .............................. 3
STATEMENT .............................................................. 3
REASONS FOR GRANTING THE PETITION ......... 7
I.
THE COURT OF APPEALS’
INTERPRETATION OF THE DTSA
CONFLICTS WITH DECISIONS OF
THE SECOND AND SEVENTH
CIRCUITS ON AN EXCEPTIONALLY
IMPORTANT QUESTION ............................... 7
vi
II.
A.
The Courts of Appeals Are
Divided On the Proper
Interpretation of the DTSA’s
Unjust Enrichment Provision ............... 8
B.
This Case Presents A Suitable
Vehicle To Resolve An Important
Question ............................................... 14
THE COURT OF APPEALS’
EXEMPLARY-DAMAGES HOLDING
DEEPENS A CIRCUIT CONFLICT ON
THE MEANING OF CAMPBELL ................. 17
A.
The Decision Below Misreads
This Court’s Decision In
Campbell .............................................. 18
B.
The Decision Below Conflicts
With Decisions Of Other Courts
Of Appeals ............................................ 20
C.
The Proper Understanding Of
Campbell Is An Important
Question Squarely Presented
Here ...................................................... 24
CONCLUSION .......................................................... 26
vii
TABLE OF AUTHORITIES
Page(s)
Cases
Bach v. First Union Nat’l. Bank,
486 F.3d 150 (6th Cir. 2007) ................................ 21
BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996) .....................................7, 18-19
Boerner v. Brown & Williamson
Tobacco Co.,
394 F.3d 594 (8th Cir. 2005) ................................ 22
Cole v. Foxmar, Inc.,
2024 WL 74902 (2d Cir.),
cert. denied, 144 S. Ct. 2528 (2024) ..................... 21
Cote v. Philip Morris USA, Inc.,
985 F.3d 840 (11th Cir. 2021) .............................. 24
Czyzewski v. Jevic Holding Corp.,
580 U.S. 451 (2017) .............................................. 15
Ellingburg v. United States,
607 U.S. ---, 146 S. Ct. 564 (2026) ....................... 16
Hangarter v. Provident Life &
Accident Ins. Co.,
373 F.3d 998 (9th Cir. 2004) ................................ 23
Hardeman v. Monsanto Co.,
997 F.3d 941 (9th Cir. 2021),
cert. denied, 142 S. Ct. 2834 (2022) ..................... 23
Honda Motor Co. v. Oberg,
512 U.S. 415, 421 (1994) ...................................... 24
Jurinko v. Med. Protective Co.,
305 F. App’x 13 (3d Cir. 2008) ............................. 23
viii
Lompe v. Sunridge Partners, LLC,
818 F.3d 1041 (10th Cir. 2016) ...................... 20, 22
McGinnis v. Am. Home
Mortg. Servicing, Inc.,
901 F.3d 1282 (11th Cir. 2018) ............................ 24
Méndez-Matos v. Mun. of Guaynabo,
557 F.3d 36 (1st Cir. 2009) .................................. 20
Morgan v. New York Life Ins. Co.,
559 F.3d 425 (6th Cir. 2009) ................................ 21
Motorola Sols., Inc. v. Hytera Commc’ns
Corp. Ltd.,
108 F.4th 458 (7th Cir. 2024),
cert. denied, 145 S. Ct. 1182 (2025) ............1, 11-12
Pac. Mut. Life Ins. Co. v. Haslip,
499 U.S. 1 (1991) .................................................. 19
Planned Parenthood of
Columbia/Willamette Inc. v.
Am. Coal. of Life Activists,
422 F.3d 949 (9th Cir. 2005),
cert. denied, 547 U.S. 1111 (2006) ....................... 23
Saccameno v. U.S. Bank Nat’l Ass’n,
943 F.3d 1071 (7th Cir. 2019) .............................. 22
State Farm Mut. Auto.
Ins. Co. v. Campbell,
538 U.S. 408 (2003) .................... i, 2, 6-7, 17-19, 24
Syntel Sterling Best Shores Mauritius Ltd.
v. The TriZetto Grp., Inc.,
68 F.4th 792 (2d Cir.), cert. denied,
144 S. Ct. 352 (2023) ........................... 1, 6, 8-13, 16
Thomas v. iStar Fin., Inc.,
652 F.3d 141 (2d Cir.),
ix
cert. denied, 565 U.S. 1094 (2011) ....................... 21
Williams v. ConAgra Poultry Co.,
378 F.3d 790 (8th Cir. 2004) ................................ 22
Constitutional And Statutory Provisions
28 U.S.C. § 1254(1) ...................................................... 3
Defend Trade Secrets Act, 18 U.S.C.
§ 1836...................................................................i, 1
§ 1836(b)(1) ............................................................ 3
§ 1836(b)(3)(A) ....................................................... 8
§ 1836(b)(3)(A)(i) ................................................... 3
§ 1836(b)(3)(A)(ii) .................................................. 3
§ 1836(b)(3)(A)(iii) ................................................. 4
§ 1836(b)(3)(B) ....................................................... 8
§ 1836(b)(3)(B)(i) ................................................... 4
§ 1836(b)(3)(B)(i)(II) .......................................... 5, 7
§ 1836(b)(3)(B)(ii) .................................................. 4
§ 1836(b)(3)(C) .......................................... 4-5, 8, 16
§ 1836(b)(3)(D)....................................................... 8
Other Authorities
H.R. Rep. No. 114-529 (2016).................................... 15
Lex Machina 2026 Trade Secret Litigation
Report: Federal Trade Secret Filings Hit
an All-Time High in 2025, LEXISNEXIS
(Jan. 29, 2026), https://tinyurl.com/5bnner2x ............................................. 15
x
RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 45(2)........................................................... 10
Unfinished Business: Curbing Excessive Punitive Damages Awards, U.S. CHAMBER
OF COMMERCE INSTITUTE FOR LEGAL REFORM (Sept. 21, 2023), https://tinyurl.com/5jak68mk ............................................ 25
The US Defend Trade Secrets Act eight
years on, IAM TRADE SECRETS (May 14,
2024), https://tinyurl.com/4j27ss8j ...................... 15
1
PETITION FOR WRIT OF CERTIORARI
Petitioners Tata Consultancy Services Ltd. and
Tata America International Corp. respectfully petition for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Fifth Circuit in this case.
INTRODUCTION
In this nearly $200 million trade-secret dispute,
the court of appeals rendered two holdings that conflict with decisions of other courts of appeals on important, frequently recurring remedial questions.
First, the court of appeals acknowledged that it
was adopting an interpretation of the damages provision of the Defend Trade Secrets Act (DTSA), 18
U.S.C. § 1836, that conflicts with a precedential decision of the Second Circuit. As the court of appeals explained, in Syntel Sterling Best Shores Mauritius Ltd.
v. The TriZetto Group, Inc., 68 F.4th 792 (2d Cir.), cert.
denied, 144 S. Ct. 352 (2023), the Second Circuit “pronounce[d] the general rule that a secret holder can
never be awarded unjust enrichment damages under
the DTSA where it ‘suffers no compensable harm beyond its lost profits or profit opportunities,’” App. 32a
(quoting Syntel, 68 F.4th at 811), an interpretation
that the Seventh Circuit later adopted, Motorola
Sols., Inc. v. Hytera Commc’ns Corp. Ltd., 108 F.4th
458 (7th Cir. 2024), cert. denied, 145 S. Ct. 1182
(2025). In the decision below, however, the court of
appeals rejected that interpretation of the statute,
holding that “unjust enrichment damages under the
DTSA” have “no compensable harm requirement.”
App. 33a. That basic disagreement over a core provision of a 2016 statute that has accounted for an
2
increasing share of federal litigation—with over a
thousand new cases filed each year—warrants resolution.
Second, the court of appeals rejected petitioner’s*
interpretation of State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), as holding that a substantial award of compensatory
damages will typically disfavor a punitive-damages
award greater than the amount of compensatory damages. App. 39a. Petitioner’s view is not only compelled by the plain language of Campbell, but it has
been adopted by at least six other circuits in precedential opinions. That conflict also warrants resolution,
because the court of appeals’ minority view authorizes
gargantuan punitive awards that exceed the limits of
due process—such as the $112 million award here in
a routine trade-secret case.
This case presents a clean vehicle to resolve these
important, purely legal questions. The court of appeals addressed both questions in a precedential decision. Lower courts and litigants alike would benefit
from clear rules about the scope of potential damages
in trade-secrets cases and other cases involving claims
for punitive damages. The Court should grant review.
Throughout this petition, the term “petitioner” refers only to
Tata Consultancy Services Ltd. unless otherwise noted. The
other petitioner, Tata America International Corp., is a party
bound by the injunction entered by the district court and partially vacated by the court of appeals, but it is not otherwise liable for the judgment under review. App. 2a n.2, 55a.
*
3
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-45a)
is reported at 159 F.4th 429. The decision of the district court granting judgment to respondent (App.
54a-197a) is unreported but is available at 2024 WL
6909861.
JURISDICTION
The judgment of the court of appeals was entered
on November 21, 2025. App. 1a. Petitions for rehearing were denied on December 19, 2025. App. 46a. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions
are reproduced in the appendix to this petition.
STATEMENT
1. Enacted in 2016, the DTSA created the first
federal cause of action for trade-secret misappropriation. 18 U.S.C. § 1836(b)(1). The statute provides
that in such an action, “a court may * * * grant an injunction * * * (i) to prevent any actual or threatened
misappropriation” and (ii) “if determined appropriate
by the court, requiring affirmative actions to be taken
to protect the trade secret.” Id. § 1836(b)(3)(A)(i) and
(ii).
The DTSA also provides for monetary remedies. A
court may award “damages for actual loss caused by
the misappropriation of the trade secret” and “damages for any unjust enrichment caused by the
4
misappropriation of the trade secret that is not addressed in computing damages for actual loss.” 18
U.S.C. § 1836(b)(3)(B)(i). A court may also, “in lieu of
damages measured by any other methods,” impose “a
reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret.” Id.
§ 1836(b)(3)(B)(ii). That may include a reasonable
royalty for future use “in exceptional circumstances
that render an injunction inequitable.”
Id.
§ 1836(b)(3)(A)(iii).
Finally, the DTSA provides that “if the trade secret is willfully and maliciously misappropriated,” a
court may “award exemplary damages in an amount
not more than 2 times the amount of the damages
awarded” for actual loss and unjust enrichment or as
a reasonable royalty. 18 U.S.C. § 1836(b)(3)(C).
2. Both petitioner and respondent sell software
platforms. App. 2a-3a, 56a (¶¶ 3, 6). In the 1990s,
respondent licensed two software platforms to the insurance company Transamerica. App. 3a, 57a (¶ 11).
In 2016, Transamerica initiated a bid process to replace those platforms. App. 4a, 59a (¶ 22). Petitioner
and respondent each submitted a bid. App. 4a. Petitioner won the contract and began transitioning
Transamerica from respondent’s legacy systems to petitioner’s own software platform, called BaNCS. App.
4a, 60a (¶ 27).
In the course of developing its bid, and then transitioning Transamerica to the new platform, petitioner
received
from
Transamerica
certain
information about respondent’s software systems.
App. 4a-5a. After losing the bid, respondent sued petitioner under the DTSA for trade-secret misappropriation in federal court.
App. 8a, 83a (¶ 137).
5
Respondent argued that petitioner had accessed respondent’s confidential information in putting together its bid, developing a Transamerica-specific
“customer layer” of BaNCS, and migrating
Transamerica’s data to the new platform. Resp. C.A.
Br. 17-20. Petitioner maintained that Transamerica
had authorized it to use respondent’s information in
the manner that it did and that respondent had contractually authorized Transamerica to do so. Pet. C.A.
Br. 25-44.
Following a trial with an advisory jury, the district court held petitioner liable for willful and malicious trade-secret misappropriation after finding that
respondent had not authorized Transamerica to share
respondent’s confidential information with petitioner
for the purposes for which petitioner used the information. App. 8a, 47a. There was no finding that respondent had been monetarily harmed or that the
value of its purported trade secrets had been diminished. The court awarded respondent roughly $56
million in unjust-enrichment damages, 18 U.S.C.
§ 1836(b)(3)(B)(i)(II). App. 48a, 179a (¶ 43). That
amount purported to represent the “research and design costs [petitioner] avoided by misappropriating
[respondent’s] trade secrets.” App. 143a (¶ 460). The
court also imposed a permanent injunction barring petitioner from possessing respondent’s trade secrets or
using any post-misappropriation versions of BaNCS.
App. 8a-9a, 49a-51a, 192a (¶ 110). Finally, the court
imposed approximately $112 million in exemplary
damages—the statutory maximum of twice compensatory damages, 18 U.S.C. § 1836(b)(3)(C). App. 8a,
48a, 182a (¶ 53).
6
3. The court of appeals affirmed the liability finding and the damages award and vacated the injunction in part.
As relevant here, the court of appeals concluded
that the damages and injunction were duplicative insofar as the damages compensated respondent for petitioner’s avoided costs in redeveloping BaNCS, while
the injunction prohibited petitioner from using its redeveloped version of BaNCS going forward. App. 36a38a. But instead of vacating the damages award, the
court directed the district court to “remov[e] the bar
on [petitioner’s] future use of post-appropriation
BaNCS material.” App. 45a. The court declined to
adopt the Second Circuit’s holding that unjust-enrichment damages under the DTSA require proof that the
plaintiff suffered harm beyond its actual loss in the
form of lost profits or profit opportunities (which are
compensable under a different subsection of the statute). Syntel, 68 F.4th at 810-11. Instead, it concluded
that the DTSA authorizes unjust-enrichment damages based solely on the defendant’s gain, including
avoided costs, even where an injunction would suffice
to erase that gain. App. 32a-33a, 37a.
The court of appeals also affirmed the maximum
statutory exemplary-damages award of $112 million,
rejecting petitioner’s arguments that the award was
legally excessive and violated due process. App. 38a41a. In particular, petitioner had argued that under
this Court’s decision in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), a
“ratio of exemplary damages to compensatory damages higher than 1:1 can exceed ‘the outermost limit
of the due process guarantee’ when ‘compensatory
damages are substantial,’” and that the $56 million
7
unjust-enrichment award here qualified as substantial. App. 39a (quoting Campbell, 538 U.S. at 425).
The court dismissed that consideration as irrelevant,
stating that petitioner’s argument rested on “a misreading of Campbell.” App. 39a. The court based that
conclusion on the observations that Campbell had “rejected an exemplary damages award in the ratio of
145:1” and that this Court’s earlier decision in BMW
of North America, Inc. v. Gore, 517 U.S. 559 (1996),
had “endorsed punitive damages in a 4:1 ratio.” App.
39a. In light of that understanding of precedent, the
court declined to consider the “substantial” size of the
$56 million compensatory award in its analysis. App.
39a-41a.
The court of appeals denied rehearing. App. 46a.
REASONS FOR GRANTING THE PETITION
I. THE COURT OF APPEALS’ INTERPRETATION OF THE DTSA CONFLICTS WITH DECISIONS OF THE SECOND AND SEVENTH
CIRCUITS ON AN EXCEPTIONALLY IMPORTANT QUESTION
The court of appeals’ interpretation of the DTSA’s
unjust-enrichment
provision,
18
U.S.C.
§ 1836(b)(3)(B)(i)(II), conflicts with the interpretation
of the same provision adopted by the Second and Seventh Circuits. It is exceptionally important that this
Court resolve that disagreement because it involves
the damages provision of a major federal statute that
has generated thousands of cases since its enactment
a decade ago. This Court should grant certiorari to
resolve the conflict and ensure a uniform understanding of the requirements to obtain monetary awards
under the DTSA.
8
A. The Courts of Appeals Are Divided On the
Proper Interpretation of the DTSA’s Unjust Enrichment Provision
1. The DTSA, enacted in 2016, created a federal
cause of action for trade-secret misappropriation. It
authorizes federal courts to award an injunction to
prevent misappropriation, 18 U.S.C. § 1836(b)(3)(A),
as well as compensatory damages, punitive damages,
and attorney’s fees, id. § 1836(b)(3)(B)-(D).
With respect to compensatory damages, a court
may award: (1) “damages for actual loss caused by the
misappropriation,” (2) “damages for any unjust enrichment caused by the misappropriation * * * that is
not addressed in computing damages for actual loss;”
or (3) “in lieu of damages measured by any other
methods * * * a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade
secret.” 18 U.S.C. § 1836(b)(3)(B). The DTSA therefore allows a court to award damages for “unjust enrichment” in addition to damages for a plaintiff’s
actual losses, but it does not otherwise define the circumstances in which a court may award unjust-enrichment damages.
In Syntel, supra, the Second Circuit addressed
that question. There, TriZetto had accused Syntel of
misappropriating trade secrets related to software in
violation of the DTSA. 68 F.4th at 796-97. The jury
found Syntel liable for misappropriation and awarded
roughly $285 million in unjust-enrichment damages
based on Syntel’s avoided development costs, i.e., the
costs that Syntel did not have to incur to develop its
software because it had misappropriated Trizetto’s
trade secrets. Id. at 799. The district court also
9
permanently enjoined Syntel from further use of TriZetto’s trade secrets. Id.
A unanimous panel of the Second Circuit affirmed
the jury’s liability finding but vacated the $285 million unjust-enrichment award on the ground that TriZetto had suffered no “compensable harm” from the
misappropriation beyond its actual losses. 68 F.4th at
806-15. In support of that holding, the Second Circuit
provided an extensive and scholarly analysis of the
DTSA’s unjust-enrichment provision.
The Second Circuit first explained that to determine when an unjust-enrichment award is available,
including an avoided-costs award, “one needs to consider the entirety of the DTSA’s remedial scheme.” 68
F.4th at 809. That scheme “provides a tool to make
trade secret holders whole” for injuries beyond actual
losses, “i.e., in instances where the value of the secret
is damaged, or worse yet—destroyed.” Id.
Further, the Second Circuit explained, “[t]he origins of ‘unjust enrichment’” lie in the common law of
restitution, which focuses on “‘a return or restoration
of what the defendant has gained in a transaction.’”
68 F.4th at 809-10 (quotations omitted). Injunctive
relief barring use of the trade secret, and thus returning that intellectual property to the trade-secret
owner, often suffices to achieve that objective. Id. But
“[t]he remedy of restitution can sometimes require
more than the return of specific things,” such as where
the defendant profits off the trade secret or saves
costs. Id. Critically, however, under the law of restitution, “the amount of avoided costs damages recoverable must still derive from ‘a comparative appraisal of
all the factors of the case,’ among which are ‘the nature and extent of the appropriation’ and ‘the relative
10
adequacy to the plaintiff of other remedies.’” Id. (quoting RESTATEMENT (THIRD) OF UNFAIR COMPETITION
§ 45(2)). “Such an appraisal might well support an
avoided costs award where misappropriation effectively destroys a trade secret.” Id. at 810 n.34. But
“[a]warding avoided costs in the absence of such a
comparative appraisal risks producing an unjust
windfall for trade secret holders.” Id. at 810.
Taking into account both the purpose of the
DTSA’s compensatory-damages provision and the
common-law origins of unjust enrichment, the Second
Circuit adopted the following interpretation of the
DTSA: “[F]or purposes of deciding whether unjust enrichment in the form of avoided costs was permissibly
awarded in this case, the relevant question is: did
Syntel’s misappropriation injure TriZetto beyond its
actual loss of $8.5 million in lost profits?” 68 F.4th at
810. The court found it significant that “TriZetto
[had] retain[ed] the use and value of its trade secrets
and the district court [had] permanently enjoin[ed]
Syntel from using TriZetto’s trade secrets.” Id. That
is because “the DTSA’s equitable remedies work as a
powerful tonic to reduce the harm a trade secret
holder suffers beyond its lost business.” Id.
The Second Circuit explained that “[r]eading the
statute’s compensatory damages provision otherwise—as focusing exclusively on [the defendant’s]
saved expenses to award avoided costs—ignores the
extent to which [the defendant’s] misappropriation injured [the plaintiff] and impermissibly discounts the
comparative appraisal that governs equitable trade
secret remedial determinations.” 68 F.4th at 811.
“Under that reading,” the court said, “avoided costs
would be available as unjust enrichment damages in
11
any case of misappropriation, even where a trade secret owner suffers no compensable harm beyond its
lost profits or profit opportunities.” Id. “If accepted,
that view would permit avoided costs awards that are
more punitive than compensatory”—“a curious distortion of the DTSA’s remedial scheme” that “would ignore the significance and the reach of a district court’s
permanent injunction power.” Id.
Applying its construction of the DTSA to the facts
of the case, the Second Circuit held that TriZetto could
be entitled to no more than the $8.5 million in lost
profits that its expert had calculated (which TriZetto
had waived by failing to seek that form of relief). 68
F.4th at 811, 814-15. The court explained that
“[b]eyond its lost profits * * * TriZetto suffered no
compensable harm supporting an unjust enrichment
award.” Id. at 811. “Syntel’s misappropriation did not
diminish, much less destroy, the secrets’ continued
commercial value to TriZetto,” and the “permanent injunction ended Syntel’s use of TriZetto’s trade secrets”
going forward. Id. For that reason, “as a matter of
law, an unjust enrichment award of avoided costs was
unavailable” to TriZetto. Id. at 814.
In short, under the Second Circuit’s interpretation
of the DTSA, unjust-enrichment damages are unavailable where the plaintiff retains full use and value of
its trade secrets and the plaintiff has not proven that
the misappropriation caused compensable harm beyond actual losses.
2. The Seventh Circuit has adopted the same construction of the DTSA. In Motorola Solutions, supra,
the court reviewed an unjust-enrichment award arising out of the defendant’s unlawful incorporation of
the plaintiff’s trade secrets into products sold to
12
consumers. 108 F.4th at 468, 470, 489-94. The Seventh Circuit “agree[d] with the Second Circuit that
‘avoided costs are recoverable as damages for unjust
enrichment under the DTSA’ when the defendant’s
‘misappropriation injure[s plaintiff] beyond its actual
loss.’” Id. at 490 n.10 (quoting Syntel, 68 F.4th at 80910). Applying that rule, it concluded that the defendant’s “avoided [research and development] costs are
recoverable as unjust enrichment in this case because
its misappropriation injured [the plaintiff] beyond its
actual losses.” Id. In particular, the defendant had
“used the claimant’s trade secrets in developing its
own product”—which was actually sold to consumers,
thereby “diminishing the value of the trade secret to
the claimant.” Id. (internal quotation marks omitted).
3. The decision below broke with those precedents
by holding that a DTSA plaintiff may recover unjustenrichment damages even where the plaintiff suffered
no harm from the misappropriation beyond actual
loss. The district court did not find that respondent
suffered any harm at all from petitioner’s asserted
misappropriation. And like the plaintiff in Syntel (but
unlike the plaintiff in Motorola Solutions), respondent
“offered no proof that [petitioner’s alleged] misappropriation diminished the value of its trade secrets to
any degree.” Syntel, 68 F.4th at 812. Because injunctive relief suffices to prevent any possible future
harm, there was no basis under the construction of the
DTSA adopted by the Second and Seventh Circuits to
award damages.
The court of appeals, however, expressly rejected
that interpretation of the DTSA. The court acknowledged that Syntel “pronounces the general rule that a
secret holder can never be awarded unjust enrichment
13
damages under the DTSA where it ‘suffers no compensable harm beyond its lost profits or profit opportunities.’” App. 32a (quoting Syntel, 68 F.4th at 811). “To
the extent that this ‘compensable harm’ standard is
intended to require proof of some quantifiable impact
on the secret holder that goes beyond proof of the misappropriator’s unjust enrichment,” the court asserted,
“that interpretation is divorced from the text of the
DTSA and from traditional understandings of the ‘unjust enrichment’ remedy.” App. 32a. Recognizing the
Second Circuit’s holding that an injunction serves to
mitigate future harm and render an award of damages unnecessary, the court of appeals “decline[d] to
adopt that approach.” App. 33a.
The court of appeals instead announced the blanket rule that “unjust enrichment damages under the
DTSA” has “no compensable harm requirement.”
App. 33a. On that view, petitioner was liable for the
full extent of its avoided costs, despite that respondent
suffered no harm at all. As the court of appeals conceded, its interpretation of the DTSA conflicts with
the Second Circuit’s holding in Syntel, which “disagree[d]” with the view that “avoided costs are available as compensatory damages under the DTSA
whenever there is misappropriation of any trade secret relating to an owner’s product,” 68 F.4th at 813.
The court of appeals claimed that its disposition
could be reconciled with the “outcome” of Syntel insofar as the court of appeals agreed that an injunction
barring petitioner from using the redeveloped BaNCS
was incompatible with an award of avoided-costs
damages. App. 35a-38a. But the court admitted that
its actual interpretation of the DTSA is irreconcilable
with the Second Circuit’s construction of the statute,
14
which requires proof of compensable harm beyond actual loss to support a further monetary award given
the availability of injunctive relief to prevent future
harm. And at any rate, the two cases reached totally
inconsistent outcomes: Under the Second Circuit’s
rule, the proper course here would have been to instead vacate the unjust-enrichment award and leave
in place the injunction against possession of the appropriated trade secrets.
The court of appeals also noted that the injunction
entered by the district court would not account for any
“benefit that [petitioner] received before the imposition of the permanent injunction.” App. 37a (emphasis omitted). But under the Second Circuit’s rule,
those benefits would not justify damages, because respondent did not attempt to prove that it had been
harmed by that use, such as through the diminished
value of its trade secrets.
In short, the circuits have adopted fundamentally
inconsistent interpretations of the DTSA’s unjust-enrichment provision, with the Second and Seventh Circuits requiring proof of harm to the plaintiff beyond
its actual losses before damages may be awarded and
the Fifth Circuit disclaiming any such requirement.
Granting review in this case would allow the Court to
resolve that square conflict on a pure question of statutory interpretation.
B. This Case Presents A Suitable Vehicle To
Resolve An Important Question
This Court should resolve the conflict over the
meaning of the DTSA. Enacted in 2016 as the first
federal law providing a civil cause of action for tradesecret misappropriation, the DTSA is now frequently
15
invoked in federal cases. In 2025, over 1500 new federal trade-secret cases were filed, and DTSA claims
“appear in more than 80 percent of new trade-secret
lawsuits in federal courts.” Lex Machina 2026 Trade
Secret Litigation Report: Federal Trade Secret Filings
Hit an All-Time High in 2025, LEXISNEXIS (Jan. 29,
2026), https://tinyurl.com/5bnner2x; see also The US
Defend Trade Secrets Act eight years on, IAM TRADE
SECRETS (May 14, 2024), https://tinyurl.com/4j27ss8j
(noting that over 5,000 DTSA cases have been filed
since its enactment). This case poses one of the most
fundamental questions under the statute: When can
a plaintiff obtain an unjust-enrichment award? This
Court should resolve that straightforward question,
which is cleanly presented in this case.
The question here will be important in virtually
any cases in which a DTSA plaintiff seeks monetary
relief. As parties litigate and consider settlement,
they need certainty about the basic requirements to
obtain damages awards under the statute. Czyzewski
v. Jevic Holding Corp., 580 U.S. 451, 470 (2017) (recognizing that legal uncertainty makes “settlement
more difficult to achieve”). Clarity on whether harm
is required for an unjust-enrichment award is critical.
Moreover, the rule adopted by the court of appeals
will inevitably confer unjustifiable windfalls on DTSA
plaintiffs—a result at odds with Congress’s objective
of providing an “effective and efficient remedy for
trade secret owners” while at the same time
“avoid[ing] disruption of legitimate businesses.” H.R.
Rep. No. 114-529, at 6 (2016). Treating the avoidedcosts measure “as having no compensable harm requirement,” App. 33a, means that it authorizes
awards that are, by definition, non-compensatory.
16
But the DTSA’s “policy of punishing wrongdoers is already served by the DTSA’s separate provision for punitive damages.” Syntel, 68 F.4th at 811 n.36 (citing
18 U.S.C. § 1836(b)(3)(C)). The decision below thus
distorts the DTSA’s remedial scheme, making it far
more punitive than Congress intended.
This case provides a suitable vehicle to resolve the
question presented. The court of appeals addressed it
in a published opinion. Although respondent argued
below that petitioner had not sufficiently preserved
the issue in the district court, Resp. C.A. Br. 50, the
court of appeals did not endorse that position and
reached the question on the merits. There is accordingly no impediment to this Court’s resolution of the
question. Ellingburg v. United States, 607 U.S. ---,
146 S. Ct. 564, 567 n.2 (2026).
Any benefits of further percolation of the question
in the courts of appeals would not outweigh the need
for certainty on such a basic question about the scope
of a frequently invoked cause of action. The question
is purely legal; both the Second Circuit and the Fifth
Circuit provided extensive analysis of the relevant interpretive considerations; and it is unlikely that future factual scenarios will shed meaningful light on
whether the unjust-enrichment provision requires
proof of harm, which does not depend on the facts of
any given case. Nor is it likely that the conflict will
resolve itself. All relevant decisions were unanimous.
The Fifth Circuit denied en banc review without dissent in this case despite the acknowledged conflict
with the Second Circuit. For its part, the Second Circuit rarely sits en banc. In short, the question is ripe
for this Court’s resolution.
17
II. THE COURT OF APPEALS’ EXEMPLARYDAMAGES HOLDING DEEPENS A CIRCUIT
CONFLICT ON THE MEANING OF CAMPBELL
The compensatory damages award in this case
was roughly $56 million, yet the district court imposed
an exemplary-damages award of $112-plus million on
top of that award, resulting in a nearly $200 million
judgment in a case with no finding that the plaintiff
was harmed. Petitioner argued in the district court
and the court of appeals that under Campbell, supra,
any ratio of exemplary damages to compensatory
damages higher than 1:1 typically “exceed[s] ‘the
outermost limit of the due process guarantee’ when
‘compensatory damages are substantial,’” as they
clearly are here. App. 39a (quoting Campbell, 538
U.S. at 425). But the court of appeals held that “[t]his
is a misreading of Campbell” and gave no weight to
the fact that the unjust-enrichment award here was
enormous. Id.
It is the court of appeals, however, that clearly
misread Campbell, and its holding conflicts with the
settled view of at least six other circuits. Only the
Ninth and Eleventh Circuits have essentially treated
the relevant discussion in Campbell as optional, and
even they have not gone as far as the Fifth Circuit in
casting aside the Court’s guidance entirely. This
Court should grant review to resolve that division of
authority over the meaning of one of the foundational
decisions on the due process limits of punitive damages.
18
A. The Decision Below Misreads This Court’s
Decision In Campbell
In Campbell, supra, this Court considered
whether a punitive-damages award of $145 million in
an action against an insurance company for bad-faith
failure to settle violated due process. The Court applied the three “guideposts” set out in BMW of North
America, Inc. v. Gore, 517 U.S. 559 (1996)—reprehensibility of the defendant’s conduct, the ratio between
punitive damages and the harm to the plaintiff, and
any disparity between the punitive-damages award
and authorized civil penalties in comparable cases.
538 U.S. at 418-29.
With respect to the second factor, the Court made
clear that where compensatory damages are large, punitive damages exceeding a 1:1 ratio raise serious due
process concerns:
Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500
to 1, [Gore, 517 U.S. at 582], or, in this case, of
145 to 1.
Nonetheless, because there are no rigid
benchmarks that a punitive damages award
may not surpass, ratios greater than those we
have previously upheld may comport with due
process where “a particularly egregious act
has resulted in only a small amount of economic damages.” Ibid.; * * * . The converse is
also true, however. When compensatory
damages are substantial, then a lesser ratio, perhaps only equal to compensatory
19
damages, can reach the outermost limit
of the due process guarantee.
Campbell, 538 U.S. at 425 (emphasis added).
The decision below simply cannot be reconciled
with that straightforward discussion. The court of appeals asserted with no support that Campbell does not
say what it so clearly does.
The panel principally justified its reading of
Campbell on the ground that the facts of the case involved a 145-to-1 ratio. App. 39a. But that does not
change the rule that the Court’s opinion laid down.
That rule states that a punitive-damages award can
violate due process when it exceeds a large compensatory award. That the ratio in Campbell was far larger
does not detract from the Court’s articulated framework.
The court of appeals also stated that “the Court in
Campbell built on the holding in [Gore], which endorsed punitive damages in a 4:1 ratio.” App. 39a (citing Gore, 517 U.S. at 581, and Campbell, 538 U.S. at
425). The court of appeals was referring to Gore’s discussion of an earlier precedent, Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991) (Haslip), that
held that a ratio of 4:1 did not “‘cross the line into the
area of constitutional impropriety’” in that case. Gore,
517 U.S. at 581 (quoting Haslip, 499 U.S. at 23-24).
But in Haslip, the compensatory damages were
$200,000—280 times less than the $56 million here.
Nothing in Haslip or Gore casts doubt on Campbell’s
more recent guidance that where the compensatorydamages award is substantial, a 1:1 ratio “can reach
the outermost limit of the due process guarantee,”
Campbell, 538 U.S. at 425.
20
While what qualifies as a substantial compensatory award may pose a close question in some cases, it
does not here. The award of $56 million is obviously
large. Moreover, this case implicates Campbell’s animating concern about the relationship between a punitive award and harm to the plaintiff in an especially
direct way because the unjust-enrichment award itself was not based on any harm to respondent. As explained above, respondent was not required to prove
harm and did not do so. The unjust-enrichment award
was based entirely on petitioner’s putative gain from
the challenged conduct. The $112 million exemplarydamages award thus has quite literally an infinite ratio to any harm to respondent.
B. The Decision Below Conflicts With Decisions Of Other Courts Of Appeals
Given the clarity of Campbell, it should come as
little surprise that the court of appeals’ holding conflicts with numerous circuit court decisions. As the
Tenth Circuit has explained, “since the Supreme
Court’s decision in [Campbell], many federal appellate
courts have imposed a 1:1 ratio where * * * the compensatory damages exceed $1 million.” Lompe v. Sunridge Partners, LLC, 818 F.3d 1041, 1073 (10th Cir.
2016). The unjust-enrichment damages here were 56
times that threshold.
Several circuits have relied on Campbell’s discussion of large compensatory awards to justify the reduction of punitive awards to 1:1 ratios where
compensatory damages were far lower than $56 million:
First Circuit: In Méndez-Matos v. Municipality
of Guaynabo, 557 F.3d 36 (1st Cir. 2009), the First
21
Circuit affirmed the district court’s reduction of punitive damages to a 1:1 ratio under Campbell, explaining that the jury’s compensatory award of $35,000
“amply compensate[d]” the plaintiff for his emotional
distress and “supports the one-to-one ratio.” Id. at 4546, 55.
Second Circuit: In Thomas v. iStar Financial,
Inc., 652 F.3d 141 (2d Cir.), cert. denied, 565 U.S. 1094
(2011), the Second Circuit deemed a compensatory
award of roughly $280,000 to be “very substantial”
and held that this “factor weighs heavily in favor of a
punitive damages award equal to or less than the remitted compensatory damages award.” Id. at 149.
The Court affirmed the district court’s conditional reduction of punitive damages from $1.6 million to
$190,000. Id. at 149-50; see also Cole v. Foxmar, Inc.,
2024 WL 74902, at *2 (2d Cir.), cert. denied, 144 S. Ct.
2528 (2024) (deeming $216,000 award substantial under Campbell).
Sixth Circuit: In Bach v. First Union National
Bank, 486 F.3d 150 (6th Cir. 2007), the Sixth Circuit
held that a compensatory award of $400,000 was substantial under Campbell and reduced a $2.2 million
punitive-damages award to $400,000. Id. at 152, 15556. In conflict with the decision below, the Sixth Circuit stated that Campbell recognizes “the general
principle that a plaintiff who receives a considerable
compensatory damages award ought not also receive
a sizeable punitive damages award absent special circumstances.” Id. at 156; see also Morgan v. New York
Life Ins. Co., 559 F.3d 425, 442-43 (6th Cir. 2009)
(deeming $6 million award substantial under Campbell).
22
Seventh Circuit: In Saccameno v. U.S. Bank National Ass’n, 943 F.3d 1071 (7th Cir. 2019), cert. denied, 590 U.S. 906 (2020), the Seventh Circuit
explained that “Campbell instructs that a ‘substantial’ award merits a ratio closer to 1:1,” and it identified as “substantial” the $582,000 compensatory
award in that case, as well as a $400,000 award in another case. Id. at 1090. It vacated the $3 million punitive-damages award and instructed the district
court to impose a $582,000 punitive-damages award.
Eighth Circuit: In Williams v. ConAgra Poultry
Co., 378 F.3d 790 (8th Cir. 2004), the Eighth Circuit
deemed a $600,000 compensatory award for a
workplace-harassment claim to be substantial and to
support the conclusion that “due process requires that
the punitive damages award * * * be remitted to
$600,000.” Id. at 799; see also Boerner v. Brown &
Williamson Tobacco Co., 394 F.3d 594, 603 (8th Cir.
2005) (deeming a $4 million award substantial under
Campbell).
Tenth Circuit: In Lompe, supra, the Tenth Circuit, applying its understanding that any award over
$1 million is substantial under Campbell, held that a
compensatory award of $1.95 million was substantial.
818 F.3d at 1073. “Because we have concluded that
the amount of the compensatory damages awarded to
[the plaintiff] is substantial,” the Court held, “an
award of punitive damages equal to the compensatory
award—$1,950,000—may represent the outermost
limit of the due process guarantee.” Id. It accordingly
reduced the punitive-damages award from $22.5 million to $1.95 million, “reflecting a reduction from a ratio of 11.5:1 to a 1:1 ratio.” Id. at 1075.
23
In addition to these precedential decisions from
the First, Second, Sixth, Seventh, Eighth, and Tenth
Circuits, the Third Circuit has applied Campbell in an
unpublished decision to deem a compensatory award
of $2 million to be substantial and therefore “reduce[d]
the [punitive] award to reflect a 1:1 ratio.” Jurinko v.
Med. Protective Co., 305 F. App’x 13, 27-30 (3d Cir.
2008).
These circuits all read Campbell the same way:
When compensatory damages are substantial, a 1:1
ratio is the maximum punitive award consistent with
due process, absent unique circumstances. But the
decision below inexplicably rejected that clearly correct reading of Campbell.
In addition, the Ninth and Eleventh Circuits,
while not outright rejecting the plain meaning of
Campbell’s discussion, have treated the discussion as
optional guidance that lower courts are free to ignore.
The Ninth Circuit, for example, has held that Campbell’s “1:1 compensatory to punitive damages ratio is
not binding.” Hardeman v. Monsanto Co., 997 F.3d
941, 975 (9th Cir. 2021), cert. denied, 142 S. Ct. 2834
(2022) (quoting Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1014 (9th Cir. 2004)). Instead, the Court has adopted the rule that “[i]n cases
where there are significant economic damages and punitive damages are warranted but behavior is not particularly egregious, a ratio of up to 4 to 1 serves as a
good proxy for the limits of constitutionality.” Id.
(quoting Planned Parenthood of Columbia/
Willamette Inc. v. Am. Coal. of Life Activists, 422 F.3d
949, 962 (9th Cir. 2005), cert. denied, 547 U.S. 1111
(2006)). That is inconsistent with the rule in the other
circuits discussed above.
24
Likewise, the Eleventh Circuit has characterized
Campbell’s discussion as “dicta” that lower courts may
disregard, Cote v. Philip Morris USA, Inc., 985 F.3d
840, 849 (11th Cir. 2021), and has “upheld ratios substantially greater than 1:1 in cases with large compensatory damages awards,” McGinnis v. Am. Home
Mortg. Servicing, Inc., 901 F.3d 1282, 1290 (11th Cir.
2018) (citing cases).
This 6-3 division of authority cries out for this
Court’s resolution, especially since it turns on the
meaning of an opinion of the Court on a question of
constitutional law. Such a deep division of authority
will not resolve itself, and no further percolation is
necessary for this Court to clarify what it meant in
Campbell.
C. The Proper Understanding Of Campbell Is
An Important Question Squarely Presented Here
The question of whether punitive damages in excess of a 1:1 ratio to substantial compensatory damages are consistent with due process has considerable
national importance. As the Court has explained,
“[j]udicial review of the size of punitive damages
awards has been a safeguard against excessive verdicts for as long as punitive damages have been
awarded.” Honda Motor Co. v. Oberg, 512 U.S. 415,
421 (1994). “To the extent an award is grossly excessive,” the Court has concluded, “it furthers no legitimate purpose and constitutes an arbitrary
deprivation of property.” Campbell, 538 U.S. at 417.
That is particularly true where a tortfeasor is already
subject to a massive non-punitive award—especially
25
where, as here, there was no proof of harm to the
plaintiff.
Despite the constitutional guardrails that this
Court has put in place, punitive-damages awards
have ballooned in recent years. As one study found,
“[t]he median punitive award * * * varied from $35
million in 2017 to more than $87 million in 2022, with
the mean topping $690 million that same year.” Unfinished Business: Curbing Excessive Punitive Damages Awards, U.S. CHAMBER OF COMMERCE INSTITUTE
FOR LEGAL REFORM 11 (Sept. 21, 2023), https://tinyurl.com/5jak68mk.
Uniformity is also critical in this area. The maximum size of punitive damages in cases involving large
compensatory damages is not a trivial issue. As here,
awards in such cases often exceed $100 million, and
plaintiffs seek punitive damages in a wide variety of
actions. When certain circuits adopt insufficiently rigorous constitutional standards, that can impose billions of dollars of unnecessary costs on parties and
readily drive forum-shopping. It can also impact
where enterprises choose to locate and do business.
For those reasons, the constitutional limits on punitive awards should not vary so starkly based on geography.
The question of Campbell’s meaning is cleanly
presented here. The court of appeals adopted its view
in a precedential opinion, and it applied that interpretation in affirming the $112 million exemplary-damages award. App. 39a. To be sure, in applying this
Court’s three-factor test, the court of appeals also
weighed other considerations, such as the perceived
reprehensibility of the conduct here and the fact that
Congress has authorized punitive damages of up to
26
twice unjust-enrichment damages in the DTSA. App.
39a-41a. But the court of appeals did not hold that
those factors alone would have been sufficient to render the award here constitutional even if petitioner’s
understanding of Campbell were correct. Were this
Court to grant review and correct the court of appeals’
misapprehension about the role of large compensatory
awards in the due-process analysis, it would be open
to the Court to either apply the three-factor standard
itself or to remand for the lower courts to reapply that
standard under the correct understanding in the first
instance.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
ANAND K. SHARMA
RAJEEV GUPTA
JOHN M. WILLIAMSON
LUKE J. MCCAMMON
FINNEGAN, HENDERSON,
FARABOW, GARRETT &
DUNNER, LLP
901 New York Avenue, NW
Washington, DC 20001
(202) 408-4000
JOHN F. BASH
Counsel of Record
JACOB M. BLISS
OLIVIA HORTON
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
300 W. 6th St., Suite 2010
Austin, Texas 78701
(737) 667-6100
johnbash@quinnemanuel.com
March 19, 2026
Counsel for Petitioners
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A: Opinion, U.S. Court of Appeals
for the Fifth Circuit (November 21, 2025) ......
1a
APPENDIX B: Order Denying Petitions for
Review, U.S. Court of Appeals for the Fifth
Circuit (December 19, 2025) ............................
46a
APPENDIX C: Final Judgment, U.S. District
Court for the Northern District of Texas
(June 13, 2024) .................................................
47a
APPENDIX D: Findings of Fact and Conclusions of Law, U.S. District Court for the
Northern District of Texas (June 13, 2024) ....
54a
APPENDIX E: U.S. Constitution Amend. V ...... 198a
APPENDIX F: 18 U.S.C. § 1836 ......................... 199a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[Filed: November 21, 2025]
————
No. 24-10749
————
COMPUTER SCIENCES CORPORATION,
Plaintiff—Appellee,
versus
TATA CONSULTANCY SERVICES LIMITED; TATA AMERICA
INTERNATIONAL CORPORATION,
Defendants—Appellants.
————
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-970
————
Before HIGGINSON, HO, and WILSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Appellee Computer Sciences Corporation (“CSC”)
sued Appellant Tata Consultancy Services Limited
(“TCS”) for trade secret misappropriation under the
Defend Trade Secrets Act of 2016, Pub. L. No. 114-153,
§ 2(a), 130 Stat. 376, 376–80 (codified at 18 U.S.C.
§ 1836). CSC alleged that TCS had used CSC’s trade
secrets to win a $2.6 billion contract with non-party
Transamerica and to develop TCS’s own software
platform BaNCS. Following an eight-day trial with an
advisory jury, the district court found TCS liable,
2a
ordered TCS to pay $56 million in compensatory
damages and $112 million in exemplary damages, and
imposed a permanent injunction, barring TCS from
using CSC’s trade secrets or the version of BaNCS that
TCS developed using CSC’s trade secrets.
TCS raises six issues on appeal: (1) whether the
relevant contracts authorized TCS’s use of CSC’s
confidential information 1; (2) whether TCS acted with
the requisite mens rea for misappropriation; (3)
whether CSC defined its alleged trade secrets with
sufficient specificity at trial; (4) whether the district
court erred in awarding both unjust enrichment
damages and a permanent injunction; (5) whether the
exemplary damages award was excessive; and (6)
whether the district court erred in imposing the
injunction on non-parties. For the reasons below, we
vacate the injunction and remand to the district court
with instructions to issue a revised injunction, but we
otherwise affirm the district court’s holdings.
I.
A.
Plaintiff-Appellee CSC, an American multinational
corporation, “provides information technology services
and business solutions software to its customers,
including customers in the life, wealth, and annuities
industry.” Defendant-Appellant 2 TCS is a “global
Because TCS challenges the district court’s trade secrets
finding on appeal, we generally refer to this material as CSC’s
“confidential information” when referencing the same material
that the district court referred to as CSC’s “Trade Secrets” in the
Findings of Fact and Conclusions of Law.
1
The district court held that “CSC did not present adequate
proof of liability against” TCS’s co-defendant Tata America
International Corp., a TCS subsidiary.
2
3a
company offering technology and consulting services
to its customers, including customers in the insurance
industry.” This case concerns two of CSC’s software
platforms, Vantage and CyberLife, and one of TCS’s
software platforms, BaNCS.
As summarized by the district court, Transamerica
provides, through its subsidiaries, “life insurance, longterm care insurance, voluntary benefits, retirement
plans, recordkeeping and advisory services, annuities,
mutual funds, and other long-term savings and investment products to its customers.” In 1994, CSC entered
into an agreement with a subsidiary of Transamerica,
under which CSC licensed certain software to Transamerica. In 1999, CSC and Transamerica amended
that licensing agreement to include CyberLife (the
“CyberLife Agreement”). Similarly, in 1998, CSC
entered into an agreement with Transamerica’s predecessor, under which CSC licensed certain software, and
in 2005, CSC and Transamerica amended that
licensing agreement to include Vantage (the “Vantage
Agreement”). Both agreements authorize Transamerica to use and modify the software programs to
benefit Transamerica. Both agreements also provide
that CSC retains ownership over the software
platforms and the confidential information therein,
and that Transamerica may not use CSC’s confidential
information to reverse engineer a platform for itself.
In 2013, TCS and Transamerica entered into a
Master Services Agreement (the “2013 Master Services
Agreement”). Pursuant to that Agreement, Transamerica
engaged TSC as a third-party consultant to provide
maintenance services for Vantage and CyberLife. To
facilitate this and other third-party work, Transamerica
and CSC executed a Third-Party Access Addendum
(the “Third-Party Addendum”) in February 2014. The
4a
Third-Party Addendum served as an addendum to
existing licensing agreements and generally allowed
Transamerica to authorize its consultants to access,
copy, execute, use and modify CSC’s software “solely
for the benefit” of Transamerica. TCS was one of the
contractors that were specifically named in the ThirdParty Addendum.
While providing maintenance services for Transamerica, TCS was also interested in finding an “anchor
client” to facilitate its entrance into the U.S. insurance
industry with its own software platform BaNCS. TCS
describes BaNCS as having four “layers”: (1) the core
layer, which “consists of foundational elements shared
across all TCS BaNCS customers”; (2) the business
layer, which “extends the data definitions for specific
market segments”; (3) the geography layer, which
“contains business processes for country- and statespecific rules and regulations, and product templates
that provide insurers with a foundation for fullycompliant product launches”; and (4) the customer
layer, which “acts as a repository for modifications
specific to a single organization or business unit,” and
is specifically at issue in TCS’s claims on appeal. See
infra Section III.A.1.
In 2016, Transamerica “decided its software needed
a refresh, so it initiated a vendor-selection process.”
Multiple vendors, including both TCS and CSC,
submitted bids and conducted due diligence. At the
time, TCS’s BaNCS software was not ready for use in
the U.S. market as TCS was still building its U.S.
“geography layer,” but TCS hoped that “landing
Transamerica as an anchor client would create an
opportunity to adapt BaNCS for the U.S. market.” In
August 2017, TCS and Transamerica entered into
Service Agreement No. 75 (“Service Agreement 75”) to
5a
the August 2013 Master Services Agreement to enable
TCS’s due diligence. Service Agreement 75 required
TCS to undertake a number of specific activities,
including requiring TCS to: “[u]nderstand and validate
[Transamerica’s] operational landscape, which includes
its software”; “[v]alidate the Transition Plan for each
line of business”; and produce a “Comprehensive Due
Diligence Report,” a “[t]arget operating model for
Transition Services and TPA Services,” and
“[c]omplete and accurate Transition Plans for each line
of business.” To facilitate this work, Service Agreement
75 obliged Transamerica to furnish TCS with “data”
and other “required information.” The agreement did
not assign TCS any role in assuring that information
could be disclosed.
TCS won the contract with its $2.6 billion bid.
However, until TCS finished developing BaNCS for the
U.S. market, it would continue to provide maintenance
services for Transamerica’s policies on CSC’s platforms. In January 2018, TCS and Transamerica
entered into a series of agreements “to, among other
things, administer Transamerica’s United States life
insurance and annuity business lines using the TCS
BaNCSTM platform.” As most relevant here, the January
2018 agreements between TCS and Transamerica
include an Amended and Restated Master Services
Agreement (the “2018 Master Services Agreement”). 3
As part of the 2018 agreements, TCS “hired over 2,200
people who were formerly employed by Transamerica,”
The 2018 agreements also include: TCS Service Agreement
No. 2 – 2018 MSA for TCS BaNCS Technology Platform,
Application Development and IT Maintenance Services (“Service
Agreement 2”); TCS Service Agreement No. 4 – 2018 MSA for
Migration Services (“Service Agreement 4”); and a Core
Administration System License Agreement.
3
6a
including “former Transamerica employees who
maintained Vantage and CyberLife at Transamerica.”
The parties and the district court refer to these people
as the “rebadged employees.” BaNCS was developed by
TCS’s separate software development team, based
mostly in India.
Soon, CSC began to reach out to Transamerica, and
later TCS, to express concerns about the treatment of
CSC’s intellectual property. CSC sent Transamerica a
letter in February 2018, requesting confirmation that
its intellectual property would be protected from
improper disclosure to, or use by, TCS. In April, CSC
reiterated its concerns and reminded Transamerica
that TCS’s “permitted access [to] and use of [CSC’s]
confidential proprietary information [was] limited to
only [TCS’s] performance of certain services for
[Transamerica] and for no other purpose.” About a
week later, Transamerica’s in-house counsel told TCS
that, after “diligently” reviewing Transamerica’s communications with third-party vendors and “proactively
following up with some” vendors, “Transamerica feels
very confident that we ourselves and TCS are able to
move forward with the planned transition.”
In June 2018, CSC began including TCS in its
correspondence with Transamerica. It asserted that
TCS’s “receipt or use of [CSC] technology or information constitutes” a “misappropriation of trade
secrets under both federal and state law, among other
things,” and noted that the CSC-Transamerica agreements did not contemplate using the shift from CSC’s
platforms to TCS’s BaNCS “as an improper vehicle for
[TCS] to leverage [CSC] technology and information”
to “develop a competing platform.” Transamerica
responded, stating that it was “in full compliance with
the [Third-Party] Addendum” and “ha[d] done every-
7a
thing reasonably possible to evidence that compliance.” A
month later, Transamerica again wrote to CSC, stating
that, “[CSC] must understand that TCS’s confidentiality obligations to Transamerica are embedded in
documents which are confidential to the parties,
including TCS” but also that it had “seen no indication
from TCS that they have any other intentions” beyond
“using [CSC’s] software . . . for the limited purpose of
serving Transamerica and to fulfill its obligations to
Transamerica.” In an August 2018 letter, CSC told
Transamerica and TCS that Transamerica’s purported
grant of a license to TCS “violates the 1994 and 1998
License Agreements as well as the 2014 Addendum.”
TCS later represented to Transamerica it was not
using CSC’s “intellectual property or proprietary
information to build requirements and/or functionality” for BaNCS.
In February 2019, Transamerica reaffirmed that it
would indemnify TCS in the CSC matter, but only if
TCS was “compliant with its obligations under the
[2018 Master Services Agreement] and related agreements, [and] if [Transamerica] has indemnity obligations.”
Transamerica also told TCS that the matter with CSC
“does not provide a basis for TCS to withhold services.”
The next month, a CSC employee who supported
Transamerica—and thus had a Transamerica email
address—was mistakenly copied on an email chain
with TCS employees, who were sharing excerpts of the
Vantage source code and technical manuals a TCS
rebadged employee had provided to TCS’s BaNCS
development team. The email chain revealed that the
BaNCS team was trying to figure out how Vantage’s
“rate of return” calculation worked, which CSC
considers a trade secret. This discovery precipitated
the present litigation.
8a
B.
In August 2019, CSC sued TCS in federal court,
pleading, among other claims, a claim of trade secret
misappropriation under the Defend Trade Secrets Act
(the “DTSA” or the “Act”). Discovery revealed that TCS
had been using CSC’s confidential information since
the bidding process and had since continued to use the
confidential information in TCS’s development of BaNCS
and in the conversion of Transamerica’s policies to
BaNCS, and Transamerica ultimately terminated its
relationship with TCS. TCS moved for summary
judgment, arguing, in relevant part, that the ThirdParty Addendum authorized Transamerica to grant
TCS access to CSC’s confidential information, and that
TCS’s use of CSC’s information was authorized by its
contracts with Transamerica. The district court denied
the motion.
In November 2023, the district court presided over
an eight-day trial with an advisory jury. As relevant to
this appeal, the jury found that (1) CSC’s source code
and technical manuals for Vantage and CyberLife are
trade secrets, (2) TSC acquired the manuals by improper
means, (3) TSC used the manuals without express or
implied consent, and (4) TSC did so willfully and
maliciously. The jury recommended $70 million in
compensatory damages and $140 million in exemplary
damages. Thereafter, the district court issued detailed
Findings of Fact and Conclusions of Law, affirming
liability for TCS but reducing the compensatory
damages to $56 million and the exemplary damages to
$112 million. The court also entered a permanent
injunction barring TCS from using CSC’s trade secrets
or any version of BaNCS developed using the misappropriated material in the U.S. market, prohibiting
TCS employees who had access to CSC’s trade secrets
9a
from working on TCS software for the U.S. market for
eighteen months, and imposing a 10-year monitorship.
TCS timely appealed, and we have jurisdiction over
the appeal under 28 U.S.C. § 1291.
II.
We “review questions of law, including choice of law
and contract interpretation, de novo.” Waterfowl Liab.
Co. v. United States, 473 F.3d 135, 141 (5th Cir. 2006).
We review the district court’s findings of fact only for
clear error. Kristensen v. United States, 993 F.3d 363,
367 (5th Cir. 2021). “A finding is clearly erroneous if it
is without substantial evidence to support it, the court
misinterpreted the effect of the evidence, or this court
is convinced that the findings are against the
preponderance of credible testimony.” Bd. of Trs. New
Orleans Emps. Int’l Longshoremen’s Ass’n v. Gabriel,
Roeder, Smith & Co., 529 F.3d 506, 509 (5th Cir. 2008).
“Reversal for clear error is warranted only if the court
has a definite and firm conviction that a mistake has
been committed.” Id. (quoting Water Craft Mgmt. LLC
v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006)).
“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Hess Corp. v. Schlumberger Tech.
Corp., 26 F.4th 229, 233 (5th Cir. 2022) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)). “This court ‘grant[s] even greater deference to
the trial court’s findings when they are based on
determinations of credibility.’” Id. (quoting Deloach
Marine Servs., L.L.C. v. Marquette Transp. Co., 974
F.3d 601, 607 (5th Cir. 2020)).
Finally, we “review[] the district court’s grant of a
permanent injunction for abuse of discretion.” M. D. ex
rel. Stukenberg v. Abbott, 907 F.3d 237, 248 (5th Cir.
10a
2018) (citing Ball v. LeBlanc, 792 F.3d 584, 598 (5th
Cir. 2015)). A district court “abuses its discretion if it
‘(1) relies on clearly erroneous factual findings when
deciding to grant or deny the permanent injunction[,]
(2) relies on erroneous conclusions of law when
deciding to grant or deny the permanent injunction, or
(3) misapplies the factual or legal conclusions when
fashioning its injunctive relief.’” Id. (quoting Symetra
Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242,
254 (5th Cir. 2014)).
III.
TCS raises six issues on appeal, three of which
pertain to TCS’s liability under the DTSA and three of
which pertain to the remedies awarded. We address
each issue in turn, starting with the liability arguments before turning to the remedies arguments.
A.
The DTSA provides that “[a]n owner of a trade
secret that is misappropriated may bring a civil action
under this subsection if the trade secret is related to a
product or service used in, or intended for use in,
interstate or foreign commerce.” 18 U.S.C. § 1836(b)(1).
CSC was required to prove: (1) that it owns a valid
trade secret; (2) that the trade secret is related to a
product or service used in, or intended for use in,
interstate or foreign commerce; and (3) that TCS
misappropriated the trade secret. TCS’s liability
arguments pertain to the first element, see Section
III.A.3 below, and the third element, see Sections
III.A.1–2 below.
1.
TCS’s first argument is contractual, although—as
CSC highlights—TCS and CSC never contracted with
11a
one another. TCS asserts that its access to and use of
CSC’s information did not amount to “misappropriation” within the meaning of the DTSA because this
activity was authorized by the various contracts
between Transamerica and CSC and between
Transamerica and TCS. 4 The DTSA defines “misappropriation” to mean:
(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
(B) disclosure or use of a trade secret of
another without express or implied consent
by a person who—
(i) used improper means to
knowledge of the trade secret;
acquire
(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;
There are nine contracts that are relevant to this case: three
between CSC and Transamerica (the Vantage Agreement, the
CyberLife Agreement, and the Third-Party Addendum) and six
between TCS and Transamerica (the 2013 Master Services
Agreement, Service Agreement 75, the 2018 Master Services
Agreement, Service Agreement 2, Service Agreement 4, and the
Core Administration System License Agreement). All of the
contracts specify the applicable state law. Texas law governs the
each of the contracts between CSC and Transamerica, while New
York law governs each of the agreements between TCS and
Transamerica.
4
12a
(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). The term “improper means”
“(A) includes theft, bribery, misrepresentation, breach
or inducement of a breach of a duty to maintain
secrecy, or espionage through electronic or other
means; and (B) does not include reverse engineering,
independent derivation, or any other lawful means of
acquisition.” Id. at § 1839(6).
TCS primarily argues that the Third-Party Addendum
authorized TCS’s access to and use of CSC’s confidential information, including to “formulate a proposal to
transition Transamerica from CSC’s systems to the
newer BaNCS product and then, once TCS won the
competitive bidding process, implement that proposal.” As
described above, the Third-Party Addendum is an
agreement that Transamerica and CSC executed to
allow Transamerica’s third-party service providers to
work on CSC’s software as part of the third parties’
13a
work for Transamerica. Section 3(a) of the Third-Party
Addendum allows TCS “to access, copy, execute and
use” CSC’s software “on behalf of and solely for the
benefit of” Transamerica. Section 3(c) further allows
TCS “to copy, change, modify, supplement, amend, and
prepare Derivative Works of the Software, if and to the
same extent permitted in the [Vantage and CyberLife]
Agreement[s], on behalf of and solely for the benefit
of” Transamerica. Section 5 permits Transamerica
to “disclose relevant aspects of [CSC]’s confidential
information” to TCS “to the extent that such disclosure
is reasonably necessary for the performance of [TCS’s]
duties and obligations to” Transamerica.
In denying TCS’s motion for summary judgment, the
district court interpreted the phrase “solely for the
benefit of [Transamerica]” in Section 3(a) to “prohibit[]
uses [of CSC’s software] that inure to a third party’s
benefit in a manner beyond ordinary pecuniary benefit
for services.” The court further interpreted Section 3(c)
as “more difficult to satisfy” than Section 3(a) “because
it also requires that the modification at issue be ‘permitted in’ CSC’s earlier agreements with Transamerica,”
which “aren’t permissive.” Consistent with these
conclusions, the district court ultimately held that
“TCS acquired the Trade Secrets by improper means,”
that it “disclosed and used the Trade Secrets without
CSC’s express or implied consent,” and that “such
disclosure and use were not on behalf of and solely for
the benefit of Transamerica.”
TCS argues on appeal that the district court’s
“ordinary pecuniary benefit” interpretation is atextual
and unworkable. But, on the contrary, both the text of
the Third-Party Addendum and the broader context
favor the district court’s plain reading. Turning first to
the text, see Weeks Marine, Inc. v. Standard Concrete
14a
Prods., Inc., 737 F.3d 365, 369 (5th Cir. 2013), the most
conventional reading of the phrase “solely for the
benefit of [Transamerica]” is likely to mean “exclusively for the benefit of Transamerica and no one else,”
see Solely, MERRIAM-WEBSTER DICTIONARY, https://
www.merriam-webster.com/dictionary/solely (defining
“solely” to mean “to the exclusion of all else” or
“without another[,] singly” and identifying synonyms
such as “just,” “only,” and “exclusively”). The district
court reached the same conclusion, but—prompted by
TCS’s assertions—further observed that the third
parties still “must be able to receive pecuniary gain for
their services under the [Third Party] Addendum.”
This caveat makes sense in light of the nature of the
contracting relationship and does not alter the plain
reading of the provision. TCS’s access under Section
3(a) must be exclusively for Transamerica’s benefit
and for no one else’s, including TCS. But the provision
makes no demand that TCS perform its work for
Transamerica for free. So, although the Third-Party
Addendum does not allow TCS to benefit directly from
its access to, and use of, CSC’s confidential information, it does nothing to inhibit TCS’s payment by
Transamerica for services TCS provided. And it is
irrelevant that performing these services required
TCS to access CSC’s confidential information because
the “benefit” Transamerica receives from this access,
as contemplated by Section 3(a), is distinct from the
benefit TCS receives for services rendered.
TCS conflates these two “benefits” to suggest that
the district court’s use of the phrase “ordinary
pecuniary benefit” is a “limitation” that “has no basis
in the text of the provision or a reasonable understanding of the parties’ intent, and it is unworkable as a
practical matter.” But the “benefit” TCS receives in
15a
return for its services is in no way part of, or
contemplated by, the Third-Party Addendum, a
contract between Transamerica and CSC. It is
therefore neither atextual nor unreasonable nor
unworkable to conclude that, although TCS may, of
course, be paid for its services by Transamerica, it may
not additionally access and use CSC’s confidential
information for its own benefit, as that benefit is
reserved “solely” for Transamerica under the ThirdParty Addendum.
In contrast, TCS’s interpretation is divorced from
the contractual language and effectively grafts a new
clause onto Section 3(a). According to TCS, “the only
reasonable interpretation of the phrase ‘on behalf of
and solely for the benefit of’ is that so long as access to
CSC’s confidential information benefits Transamerica
and does not benefit other parties beyond what the
service provider itself receives from performing the
work, it is authorized.” TCS maintains—without citation
to any authority—that its reading “reflects ordinary
usage” because it is “natural when discussing the duty
of loyalty of an agent in performing some work to
exclude benefits that inure to the agent on account of
the work itself.” As an example, TCS observes that,
while “an attorney’s engagement letter might say that
her work will be exclusively on behalf of, and for the
benefit of, the client,” the letter would not reasonably
preclude “benefits to the attorney from performing
that work—not just fees, but also experience that
could advance her career and increased stature in the
profession from a significant representation.” Setting
aside the conspicuous omission of the word “solely”
from the phrase “solely for the benefit of,” this example
is simply inapposite. As discussed above, the district
court correctly recognized that the language of Section
3(a) does not stop TCS from being compensated for its
16a
work—a wholly different benefit. The intangible
benefits of “experience” and “increased stature” are no
different; nothing in the Third-Party Addendum
barred TCS from obtaining those “benefits” by providing its services to Transamerica. However, the
contemplated benefits do not extend as far as
appellants argue.
A more helpful analogy might be something like the
following. An attorney is hired by a client to perform
work using another company’s e-discovery platform.
To facilitate the attorney’s work, the client enters into
an agreement with the e-discovery platform provider
to allow the attorney to access the platform’s internal
workings so that the attorney can tweak the ediscovery processes to maximize efficiency. To protect
the e-discovery company, the agreement only allows
the client to share the platform with the attorney for
work that the attorney performs exclusively on behalf
of and solely for the benefit of the client. As TCS
suggests, this limitation would not preclude the
attorney from receiving fees from the client or
incidental, intangible benefits like experience or
increased stature. But it would preclude the attorney
from using the e-discovery company’s source code to
build her own competing e-discovery platform. See
Syntel Sterling Best Shores Mauritius Ltd. v. The
TriZetto Grp., Inc., 68 F.4th 792, 806 (2d Cir.) (finding
it “fanciful to suggest that [a company] would
authorize [a competitor] to use its trade secrets to
compete for business without saying so”), cert. denied,
144 S. Ct. 352 (2023) (mem.).
This same analysis applies to Section 3(c), which
limits TCS’s “right to copy, change, modify, supplement,
amend, and prepare Derivative Works of the Software”
to work done “on behalf of and solely for the benefit of”
17a
Transamerica. This section also specifies that TCS
may only do so “if and to the same extent permitted in
the [Vantage and CyberLife] Agreement[s].” As CSC
further highlights, Section 3(a) uses different phrasing
but similarly limits the access rights granted to
third parties to the scope of the “rights granted to
[Transamerica] under the [Vantage and CyberLife]
Agreement[s].” And, as the district court found and
CSC reiterates, those agreements do not permit the
use of CSC’s trade secrets to prepare a bid for a
competing contract or to develop a competing platform.
The CyberLife Agreement licensed CyberLife to
Transamerica “solely” to “process data for
[Transamerica’s] own use,” and Transamerica could
not “allow any person or entity to transmit or
reproduce [CyberLife] in whole or in part in any
manner except as permitted” in the agreement. The
Vantage Agreement permitted Transamerica to “use”
Vantage “only in the manner and for the purposes
expressly authorized by [the] Agreement,” and its
“[r]ight to [m]odify” Vantage was confined to “modify[ing]
or enhanc[ing]” Vantage “to support [Transamerica]’s
authorized use of” Vantage. The district court
appropriately found that “CSC’s license agreements
with Transamerica do not contain any provisions
giving Transamerica or any of its vendors the right to
use the Trade Secrets to build a competing policy
system” and, therefore, that “the [Third-Party Addendum]
does not allow TCS to use the Trade Secrets to do so.” 5
TCS also argues that its use of CSC’s information was
authorized under multiple of Transamerica’s contracts with TCS.
However, as CSC articulates, “while Transamerica’s agreements
with [TCS] may bear on [TCS]’s knowledge and willfulness, they
cannot and do not establish authorization by CSC, the tradesecret owner and a nonparty to those agreements.” As discussed
5
18a
TCS further contends that the district court
“erroneously ruled that TCS, not Transamerica, owns
the customer layer of BaNCS.” 6 However, the relevant
contractual language supports the district court’s
conclusion that TCS owns all portions of BaNCS,
including the “customer layer.” Section 10.7(a)(i) of
the 2018 Master Services Agreement provides that
“all results of the Services created or developed by
[TCS], by itself or jointly with [Transamerica] or others,
including the Deliverables, the Procedures Manuals, the
Developed Software, [or numerous other materials]
developed for or relating to [Transamerica], . . .
above, we conclude that TCS’s use of CSC’s confidential information to prepare its bid and develop BaNCS was unauthorized
under the Third-Party Addendum agreement between Transamerica
and CSC. We need not spill further ink discussing the agreements
between Transamerica and TCS. Because Transamerica was not
permitted to authorize TCS’s access and use, TCS’s access and use
were necessarily unauthorized, regardless of what the agreements
between Transamerica and TCS may (or may not) purport to
authorize. To be sure, unauthorized access and use alone is not
enough to constitute “misappropriation” under the DTSA; the
plaintiff must also prove that the defendant knew or had reason
to know that its conduct was improper. But that is a separate
mens rea issue, addressed in Section III.A.2 below. For purposes
of answering TCS’s first question presented—whether TCS’s use
of CSC’s confidential information was authorized by contract—
the dispositive question is whether the Third-Party Addendum
authorizes this use. It does not.
The utility of this argument is not entirely clear; even if TCS
were correct about the ownership of BaNCS, TCS’s use of CSC’s
confidential information was not limited to its development of
BaNCS. The district court also found that, “[b]ecause TCS
acquired the Trade Secrets to develop its bid to displace CSC at
Transamerica, obtain a $2.6 billion contract, and reduce its time
and effort in migrating Transamerica’s data to BaNCS, TCS did
not acquire the Trade Secrets ‘solely for the benefit of Transamerica,’
as required under the [Third-Party Addendum].”
6
19a
(collectively, the ‘Work Product’) are, shall be and shall
remain the property of [Transamerica].” However,
“Work Product does not include any [TCS] Owned
Software (including any enhancements, modifications
or derivatives works of such [TCS] Owned Software or
documentation related thereto) which is licensed
under the Core Administration System License
Agreement.”
The Core Administration System License Agreement
confirms that “ownership and the title in and to
Intellectual Property Rights in the Licensed Products,”
including “all enhancements, developments and
derivative works of the Licensed Products,” “are and
shall at all times remain with” TCS. It further provides
that “ownership of and the title in and to Intellectual
Property Rights in any enhancements, developments
and other work product created by or on behalf of
[Transamerica] as part of the Services (excluding in
respect of the Licensed Products . . .), are governed
by and subject to the terms and conditions of the
[2018 Master Services Agreement] and the Service
Agreements.” The Core Administration System License
Agreement defines “Licensed Products” to include the
“[TCS] BaNCS application identified in Schedule 6,”
and Schedule 6 lists and describes a litany of “Licensed
Components” of “TCS BaNCS” that “are included in
the Licensed Products.” The parties thus agree that
the critical question is whether the “customer layer” of
BaNCS is part of, or a modification of, the BaNCS
components captured by this definition. If the former,
it is owned by TCS; if the latter, by Transamerica.
TCS asserts that the “customer layer” of BaNCS is
distinct from what TCS describes as the “generic
features of the core BaNCS layers” listed in the Core
Administration System License Agreement’s definition
20a
of “Licensed Products” and, therefore, that its ownership is given to Transamerica under the 2018 Master
Services Agreement. But, as demonstrated by CSC, the
weight of the evidence does not support that conclusion. Both Suresh Muthuswami—TCS’s President of
the company’s Banking, Financial Services, and
Insurance Platforms, who executed the 2018 Master
Services Agreement on TCS’s behalf—and Arindam
Paul—TCS’s Delivery Manager for BaNCS and its
corporate representative with respect to TCS’s development of the customer layer—testified that TCS
retained ownership of the BaNCS software. Debarati
Mukhopadhyay, TCS’s Product Head of BaNCS,
explained in a TCS article about the BaNCS software
that “the customer layer acts as a repository for
modifications specific to a single organization or
business unit,” and that “[t]hese customer modifications are forward-compatible by design and easily
adaptable to successive updates to the core, business
or geography layers of TCS BaNCS.”
This evidence supports the conclusion that the
“customer layer” is a collection of “modifications” to or
“developments” of BaNCS, as those terms are used in
the 2018 Master Services Agreement and the Core
Administration System License Agreement. Additionally,
the 2018 Master Services Agreement requires TCS to
provide Transamerica with the source code for all
“software Deliverables,” whereas the Core Administration System License Agreement only requires TCS to
provide the “object code of the Licensed Products.”
Here, TCS retained all of the BaNCS source code,
including the source code for the “customer layer.” This
indicates that TCS understood itself, not Transamerica, to
be the owner of the “customer layer” under the
applicable contracts.
21a
In contrast, TCS references only two pieces of
evidence: the Schedule 6 list of “Licensed Components”
and testimony from TCS’s Deputy General Counsel
Vinod Verghese. Verghese testified that TCS
understood the 2018 Master Services Agreement to
mean that “all the results of the services performed by
TCS, which included the developed software, which is
the customer layer of BaNCS for Transamerica, that
would remain the sole property of Transamerica.”
This testimony contradicts the testimony offered by
Muthuswami, who executed the Agreement on TCS’s
behalf, and of Paul, who was designated as TCS’s
corporate representative on the customer layer. The
district court’s decision to credit Muthuswami and
Paul over Verghese is not clearly erroneous. See
Guzman v. Hacienda Recs. & Recording Studio, Inc.,
808 F.3d 1031, 1036 (5th Cir. 2015) (“[T]he great
deference owed to the trial judge’s findings [of fact]
compels the conclusion that ‘[w]here there are two
permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.’”
(alteration in original) (quoting In re Luhr Bros., Inc.,
157 F.3d 333, 338 (5th Cir. 1998))).
As to Schedule 6, TCS does not explain what aspect
of the list supports its contention that the “customer
layer” is not captured by the “Licensed Products”
definition, as is the rest of the BaNCS software. It is
true that Schedule 6 does not specifically reference the
“customer layer.” But it lists more than twenty
“components” of BaNCS and then provides extensive
descriptions of the various facets of each component.
And as noted, TCS has described the “customer layer”
as customer-specific modifications to the “off-the-shelf”
BaNCS product. It is thus reasonable to infer that the
components listed in Schedule 6 are the very
components that could be modified through the
22a
“customer layer.” TCS identifies nothing in Schedule 6
that is inconsistent with that conclusion.
* * *
For the reasons above, we affirm the district court’s
holding that TCS’s challenged use of CSC’s confidential information was unauthorized under the terms of
the relevant contracts.
2.
TCS argues that, even if the Third-Party Addendum
did not authorize TCS’s use of CSC’s information, the
district court clearly erred in finding that TCS knew or
had reason to know that its access and use were
unauthorized or, at least, in finding that TCS’s
misappropriation was willful and malicious.
We review for clear error. See Kristensen, 993 F.3d at
367. “A finding of fact is clearly erroneous if it is
without substantial evidence to support it, the court
misinterpreted the effect of the evidence, or this court
is convinced that the findings are against the
preponderance of credible testimony.” Id. (quoting
Becker v. Tidewater, Inc., 586 F.3d 358, 365 (5th Cir.
2009)). “[W]e show ‘even greater deference to the trial
court’s findings when they are based on determinations of credibility.’” Id. (quoting Deloach Marine
Servs., L.L.C. v. Marquette Transp. Co., L.L.C., 974 F.3d
601, 607 (5th Cir. 2020)).
Here, the district court found that “TCS knew its
misappropriation of the Trade Secrets was wrong and
intentionally misappropriated the Trade Secrets in
conscious disregard of CSC’s rights.” The record
reflects that under TCS’s Intellectual Property Rights
Manual, TCS was required to “secure access to thirdparty IP assets, via in-licensing from partners,
23a
vendors, academic institutions[,] or third-parties who
own such IP assets” before use of intellectual property.
But TCS’s employees failed to follow their own
internal procedures when they decided to use CSC’s
information—as the district court found, “TCS never
asked CSC whether Transamerica could give TCS
access to the Trade Secrets” and never asked for
“guidance on what, if anything, TCS was permitted to
do with respect to the Trade Secrets . . . .” TCS’s
argument that CSC had an affirmative obligation to
share documents prohibiting TCS from using its Trade
Secrets is thus inconsistent with its own policies.
The district court also found that “TCS knew as
early as April 2018 of CSC’s concerns regarding
the rebadging of Transamerica employees to TCS
employees,” and that “TCS knew as early as June 2018
that CSC did not believe TCS was authorized to use
the Trade Secrets in the ways it did.” TCS responds
that “a competitor’s demand that TCS stop building a
platform to replace its own is hardly compelling
evidence of knowledge.” But “actual or constructive
notice that the third party’s disclosure violated a duty
owed to the plaintiff,” will “make[] a defendant liable
for using a trade secret . . . .” GlobeRanger Corp. v.
Software AG United States of Am., Inc., 836 F.3d 477,
488 (5th Cir. 2016). And actual notice can be provided
by the plaintiff’s complaint, even though parties in
trade secrets cases are often competitors. See
Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693
(2d Cir. 1992) (interpreting Texas’s trade secret cause
of action). 7
TCS argues that even if the district court could impute
knowledge beginning in mid-2018, the misappropriation primarily
“occurred in 2017[,]” and thus damages dating back to 2017 were
inappropriate. But numerous of the district court’s findings on
7
24a
Even if the word of a competitor did not provide
notice to TCS that it was misappropriating trade
secrets, the district court found that TCS’s representations to Transamerica were sufficient to impute
knowledge to TCS. Transamerica informed TCS that it
should “not incorporate proprietary information or
intellectual property of CSC . . . into the Customer
Layer, except as expressly permitted in the Master
Agreement between the Parties or directly by the third
party.” The Master Agreement did not expressly
permit using CSC’s information, nor did CSC direct
TCS to do so. TCS responds “that Transamerica
repeatedly assured TCS that its use of CSC’s information was authorized.” TCS points to, for example,
a statement by Transamerica that it “feels very
confident that we ourselves and TCS are able to move
forward with the planned transition of employees and
service commencement this weekend.” But this is not
an explicit authorization to use CSC’s information. On
the contrary, the exchange appears to be referring to
rebadging occurring at the time. We will not disturb
the district court’s decision not to credit TCS’s
explanation for vague messages. TCS also points to
Transamerica’s statement to CSC that “Transamerica
is in full compliance with the [Third-Party Addendum]
and the [2018 Master Services Agreement] with
respect to this matter.” As a factual matter, however, a
statement by Transamerica to CSC does not absolve
TCS of knowledge of its misappropriation.
In support of a finding that TCS as a company had
adequate mens rea, CSC points out that multiple TCS
employees expressed knowledge that TCS was not
TCS’s misappropriation date back to that 2017 period, including
the method by which TCS obtained the Trade Secrets in the first
place.
25a
allowed to access CSC’s information. TCS responds
that the employees “were not sufficiently senior to
impute their beliefs to the company . . . .” We have held
that knowledge can be imputed to a company from an
employee with “somewhat significant managerial
authority ‘over the sphere of the activities in
question.’” United States ex rel. Vavra v. Kellogg Brown
& Root, Inc., 848 F.3d 366, 375 (5th Cir. 2017) (quoting
In re Signal Int’l, LLC, 579 F.3d 478, 496 (5th Cir.
2009)). The employees in question—a manager and
director—had supervisory authority over the
Transamerica project at issue in this case.
TCS also challenges the district court’s finding that
TCS’s misappropriation was willful and malicious.
TCS concedes that “[i]n the district court, the parties
agreed that the ‘willfully and maliciously’ standard
could be met by ‘intentional misappropriation resulting
from the conscious disregard of the rights of the owner
of the trade secret.’” Here, however, TCS urges us to
instead apply a standard based on “intent to cause
injury or harm” from a Fourth Circuit case involving
Texas state law claims. Steves & Sons, Inc. v. JELDWEN, Inc., 988 F.3d 690, 727 (4th Cir. 2021). But Steves
& Sons only acknowledges that the intent to cause
injury or harm standard is JELD-WEN’s preferred
standard; it does not take a position on what standard
to apply. An out-of-circuit case taking no position on
the standard is not persuasive, let alone binding, on
our court.
Using the standard agreed upon by the parties, the
district court made numerous findings of fact that TCS
had willfully and maliciously misappropriated CSC’s
trade secrets. For example, TCS acknowledged that it
misrepresented to Transamerica that rebadged
employees were not “using any third party intellectual
26a
property or proprietary information to build requirements and/or functionality.” And TCS employees
shared CSC trade secrets marked as “confidential
information” with the TCS BaNCS team, going so far
as to share “a snapshot” when the email did not go
through. The district court thus had ample basis to
find that TCS’s conduct was intentional and showed
“conscious disregard” for CSC’s rights to their
information.
We therefore hold that the district court did not
clearly err in finding that TCS knowingly misappropriated CSC’s information or that TCS’s misappropriation
was willful and malicious.
3.
TCS’s final liability argument is that CSC failed to
define its alleged trade secrets with sufficient
specificity. The DTSA defines “trade secret” to mean:
all forms and types of financial, business,
scientific, technical, economic, or engineering
information, including patterns, plans, compilations, program devices, formulas, designs,
prototypes, methods, techniques, processes,
procedures, programs, or codes, whether
tangible or intangible, and whether or how
stored, compiled, or memorialized physically,
electronically, graphically, photographically,
or in writing if—
(A) the owner thereof has taken reasonable
measures to keep such information secret;
and
(B) the information derives independent
economic value, actual or potential, from
not being generally known to, and not being
27a
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). “The existence of a trade secret is
a question of fact.” CAE Integrated, L.L.C. v. Moov
Techs., Inc., 44 F.4th 257, 262 (5th Cir. 2022). But, of
course, the applicable legal standard is a question of
law.
In its order denying TCS’s motion for summary
judgment, the district court relied primarily on this
court’s decision in GlobeRanger, 836 F.3d 477. TCS
seems not to contest on appeal that CSC’s definitions
of its trade secrets are sufficiently specific under
GlobeRanger. Rather, TCS argues that GlobeRanger is
not precedential because it addresses misappropriation of trade secrets under Texas law, rather than the
DTSA, and that GlobeRanger is out of step with other
circuits, which it says require greater specificity than
CSC provided. TCS is correct that this panel is not
specifically bound by GlobeRanger. It predated the
DTSA and therefore applies Texas’s misappropriation
law. But, as CSC notes, TCS never made this argument
before the district court. Instead, TCS supported its
insufficient-specificity argument by endeavoring to
distinguish GlobeRanger on the facts. Now, TCS urges
us to articulate for the first time what specificity
standard applies in DTSA cases and to hold that the
standard differs from that articulated in GlobeRanger
and applied by the district court here.
As we have previously held, “[a]rguments not raised
in the district court cannot be asserted for the first
time on appeal.” Greenberg v. Crossroads Sys., Inc., 364
F.3d 657, 669 (5th Cir. 2004); see also Burciaga v.
Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 389 (5th Cir.
28a
2017) (“We will not consider on appeal an issue not
previously presented to the district court unless such
review is ‘necessary to prevent a miscarriage of
justice.’” (quoting Thorton v. Schweiker, 663 F.2d 1312,
1315 (5th Cir. 1981))). Moreover, the requisite
specificity for trade secrets under the DTSA is a
matter of first impression for this court, and the
parties’ briefing of this issue is notably sparse. In light
of the waiver of this issue, and the parties’ minimal
discussion of the necessity of addressing it, we
therefore decline to take up this issue.
B.
The district court awarded compensatory damages,
exemplary damages, and a permanent injunction—all
of which are generally authorized by the DTSA. TCS
challenges each of these remedies on appeal, arguing:
(1) that the district court erred in awarding both
“avoided costs” damages and an injunction against
future use; (2) that the exemplary damages award was
excessive; and (3) that the injunction improperly binds
non-parties.
1.
The DTSA authorizes “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.” 18
U.S.C. § 1836(b)(3)(B)(i). CSC was awarded compensatory damages in the form of unjust enrichment
damages. The district court awarded CSC $56,151,583
in compensatory damages, based on testimony from
CSC’s damages expert Brian Napper that TCS was
unjustly enriched by that amount as a result of
its misappropriation. Napper used two alternate
29a
approaches to calculate the unjust enrichment damages:
(1) the cost approach (also referred to as the “avoided
costs” approach); and (2) the income approach. Under
the cost approach, Napper “analyze[d] how much
research and design costs [TCS] avoided by misappropriating [CSC’s] trade secrets.” Napper concluded
that the cost approach yielded an unjust enrichment
valuation of $56,151,583. Under the income approach,
Napper “calculate[d] the profits a [TCS] expected from
its misappropriation of [CSC’s] trade secrets.” Napper
concluded that the income approach yielded an unjust
enrichment valuation of $55,484,165.
The district court found that CSC had sufficiently
proven both damages measures at trial and, therefore,
that CSC was entitled to the greater of the two—
$56,151,583 under the cost approach. The district
court also entered an injunction against TCS. 8 As
relevant here, the injunction bars TCS from any future
use of CSC Trade Secrets or post-appropriation source
code or technical documentation for BaNCS.
TCS argues that the district court erred by imposing
both unjust enrichment compensatory damages and
an injunction prohibiting future use because: (1) under
the DTSA, “a monetary award is not available where
the plaintiff has suffered no harm distinct from lost
profits and will not suffer such harm in the future”;
and (2) the compensatory damages and injunctive
remedies are duplicative. TCS asks us to vacate the
compensatory damages award, though it acknowledges
In addition to the compensatory damages and injunction
discussed in this Part, the district court awarded CSC
$112,303,166 in exemplary damages (discussed in Section III.B.2
below), pre- and post-judgment interest, attorney’s fees, and costs.
8
30a
that it argued against the imposition of the injunction
before the district court. 9
TCS relies heavily on the Second Circuit’s decision
in Syntel. In that case, Syntel had been found liable for
trade secret misappropriation under the DTSA and
New York law based on evidence that showed it was
“actively creating a repository of [TriZetto’s] trade
secrets . . . to be used in future work.” Syntel, 68 F.4th
at 797. TriZetto presented expert testimony that
Syntel avoided spending $285 million in research and
development costs through its misappropriation and
that TriZetto lost $8.5 million in profits based on the
single instance where Syntel used TriZetto’s trade
secrets to perform a software upgrade for a third party.
The jury awarded TriZetto $285 million in compensatory damages in the form of avoided development costs
under the DTSA. Id. at 799.
The Second Circuit vacated the avoided-costs award,
holding that the DTSA did not “permit[] recovery of
avoided costs as unjust enrichment damages in this
specific case.” Id. at 806–07, 815. The court reasoned
that the DTSA “provides a tool to make trade secret
holders whole by further awarding ‘damages for any
unjust enrichment caused by the misappropriation . . .
not addressed in computing damages for [their] actual
loss’—i.e., in instances where the value of the secret is
damaged, or worse yet—destroyed.” Id. at 809 (quoting
18 U.S.C. § 1836(b)(3)(B)(i)(II)). Grounding its analysis
in the restitutionary origins of unjust enrichment, the
According to TCS, it makes more sense to vacate the damages
award now that TCS has “undertaken substantial effort to comply
with [the injunction’s] terms by, among other things, eliminating
CSC’s information from its files and servers.” TCS argues in the
alternative that “if the damages award stands,” the injunction
should be vacated as duplicative.
9
31a
court highlighted various circumstances where unjust
enrichment damages could be appropriate: (1) as a
“money substitute” for the return of a “specific thing”
that a defendant has gained; (2) where a defendant has
profited from the plaintiff’s trade secret; and (3) where
a defendant has saved costs through the misappropriation of a plaintiff’s trade secret, with the caveat
that “the amount of avoided costs damages recoverable
must still derive from ‘a comparative appraisal of all
the factors of the case,’ among which are ‘the nature
and extent of the appropriation’ and ‘the relative
adequacy to the plaintiff of other remedies.’” Id. at 810
(first quoting 1 Dan B. Dobbs, Law of Remedies § 4.1(1)
(1993); then quoting Restatement (Third) of Unfair
Competition § 45(2)).
The court reasoned that the second circumstance did
not apply because Syntel’s $823,899 in profit from the
single instance where it used the misappropriated
trade secrets was addressed in computing TriZetto’s
$8.5 million lost profits calculation from that same
transaction, and that, otherwise, TriZetto had suffered
no compensable harm. Id. at 811. The permanent
injunction had “ended Syntel’s use of TriZetto’s trade
secrets, and, therefore, its ability to profit from any
avoided costs,” and “Syntel’s misappropriation did not
diminish, much less destroy, the secrets’ continued
commercial value to TriZetto.” Id. The court therefore
held that TriZetto was “not entitled to avoided costs as
a form of unjust enrichment damages in this specific
case.” Id.
TCS asserts that awarding avoided-costs damages
to CSC was improper for the same reasons because
CSC “retains its trade secrets in full” and “did not
argue that it lost profits or that TCS’s alleged use of
the trade secrets in connection with the Transamerica
32a
contracts diminished their value.” TCS also highlights
that, prospectively, the permanent injunction “ensures
that TCS cannot impair the value of those secrets
going forward.”
We agree with much of the Second Circuit’s analysis.
Its specific holding—that awarding avoided-costs
damages gave TriZetto a windfall because Syntel’s
unjust gain (from the one instance that it actually used
TriZetto’s trade secrets) was already addressed in
computing damages for TriZetto’s actual loss—is
consistent with the basic and intuitive logic that the
compensatory damages award and the injunction
should not be duplicative. See Syntel, 68 F.4th at 814.
But Syntel also pronounces the general rule that a
secret holder can never be awarded unjust enrichment
damages under the DTSA where it “suffers no
compensable harm beyond its lost profits or profit
opportunities,” id. at 811, and it is not entirely clear
from the opinion what the court meant by “compensable
harm,” beyond the example of “instances where the
value of the secret is damaged, or worse yet—
destroyed,” id. at 809. To the extent that this
“compensable harm” standard is intended to require
proof of some quantifiable impact on the secret holder
that goes beyond proof of the misappropriator’s unjust
enrichment, that interpretation is divorced from the
text of the DTSA and from traditional understandings
of the “unjust enrichment” remedy. As noted, the DTSA
authorizes damages “for any unjust enrichment
caused by the misappropriation of the trade secret
that is not addressed in computing damages for actual
loss.” 18 U.S.C. § 1836(b)(3)(B)(i)(II). It does not
separately require a compensable, quantifiable injury
suffered by the secret holder.
33a
While Syntel discusses such a requirement, it does
so against a backdrop of a permanent injunction; the
court highlighted that the “facts matter,” as the
avoided costs were already addressed by permanently
enjoining the use of the misappropriated trade secrets.
See Syntel, 68 F.4th at 810. Thus, any lack of clarity
around defining a “compensable harm” is mitigated
and explained by the imposition of the injunction. We
decline to adopt that approach, given the myriad facts
that may arise in future claims where an injunction
may be inapt. However, despite Syntel’s more decisive
language on requirements for unjust enrichment
damages, the court ultimately appeared to recognize,
as we do, the interplay between such damages and
injunctive relief. While the “facts matter,” we also
maintain the importance of clarifying the contours of
unjust enrichment damages as a standalone matter—
isolated from the question of duplication with
injunctive relief. As such, before addressing the
overlap between these remedies, we first address the
availability of unjust enrichment damages.
As a general matter, interpreting unjust enrichment
damages under the DTSA as having no compensable
harm requirement comports with the definition of
unjust enrichment at its core. As explained in Syntel,
“‘unjust enrichment[’] is ‘a basis of civil liability
involving a claim for recovery that sometimes also goes
by the name restitution.’” Syntel, 68 F.4th at 809
(quoting Unjust Enrichment, BLACK’S LAW DICTIONARY
(11th ed. 2019)). The remedy focuses on the benefit to
the defendant, rather than the impact on the plaintiff.
See Restatement (Third) of Restitution and Unjust
Enrichment § 1 cmt. a (2011) (“Liability in restitution
derives from the receipt of a benefit whose retention
without payment would result in the unjust enrichment of the defendant at the expense of the claimant.
34a
While the paradigm case of unjust enrichment is one
in which the benefit on one side of the transaction
corresponds to an observable loss on the other, the
consecrated formula ‘at the expense of another’ can
also mean ‘in violation of the other’s legally protected
rights,’ without the need to show that the claimant has
suffered a loss.”); id. at § 42 cmt. f (“The minimum
liability in restitution for benefits obtained by
misconduct is the value of anything wrongfully taken
from the claimant, whether or not the taking causes
measurable harm to the claimant.”).
This understanding is consistent with longstanding
law in our circuit on trade-secret misappropriation.
See, e.g., Univ. Computing v. Lykes-Youngstown Corp.,
504 F.2d 518, 537–39 (5th Cir. 1974) (measuring the
“value of the secret to the defendant” is “usually the
accepted approach where the secret has not been
destroyed and where the plaintiff is unable to prove
specific injury,” making the “‘appropriate measure of
damages . . . not what plaintiff lost, but rather the
benefits, profits, or advantages gained by the defendant
in the use of the trade secret.’” (quoting Int’l Indus.,
Inc. v. Warren Petroleum Corp., 248 F.2d 696, 699 (3d
Cir. 1957))); Bohnsack v. Varco, L.P., 668 F.3d 262, 280
(5th Cir. 2012) (“Damages in misappropriation cases
can take several forms,” including “the development
costs the defendant avoided incurring through
misappropriation,” and “[t]his variety of approaches
demonstrates the ‘flexible’ approach used to calculate
damages for claims of misappropriation of trade
secrets.” (citations omitted)).
The remaining questions, then, are two-fold. First,
the threshold inquiry is not whether the secret holder
suffered compensable harm beyond “actual loss,” but
whether the misappropriator was unjustly enriched by
35a
the misappropriation in a manner that is not captured
by the measurement of the secret holder’s “actual loss.”
As discussed above, Syntel generally suggests that a
broader, context-specific analysis is required before
determining whether unjust enrichment damages,
such as avoided costs, may be awarded. Syntel, 68 F.4th
at 810. To clarify our reading of the statute, contra
Syntel, we set aside the possibility of an injunction: if
misappropriating trade secrets allows a misappropriator to avoid $1 million in costs for trade secrets they
continue to leverage, requiring that misappropriator
to pay $1 million in avoided-costs damages simply puts
them in the same financial position they would have
been in had they not misappropriated trade secrets at
the secret holder’s expense. See Restatement (Third) of
Restitution and Unjust Enrichment § 1 cmt. a (2011)
(“Liability in restitution derives from the receipt of a
benefit whose retention without payment would result
in the unjust enrichment of the defendant at the
expense of the claimant.”). If unjust enrichment
damages were not available, the misappropriator
would be allowed to keep the benefit of its own
misdeeds at the secret holder’s expense. That would be
a windfall.
Second, the more pertinent concern is whether the
unjust enrichment damages measurement overlaps
with either the “actual loss” damages measurement or
with, as more relevant here, injunctive relief. If a
misappropriator has been precluded from benefitting
from the trade secrets by virtue of an injunction, there
is no longer any unjust benefit. Imposing both an
injunction and an unjust enrichment damages award
in those circumstances would be duplicative and
therefore punitive. The outcome in Syntel is consistent
with this understanding; the court determined that
the past benefit Syntel had received was captured by
36a
the “actual loss” calculation and that Syntel could not
benefit in the future due to the permanent injunction.
See Syntel, 68 F.4th at 814; see also id. at 809 (“The
[DTSA] permits a plaintiff to recover both its actual
losses and a misappropriator’s unjust benefit caused
by misappropriation, so long as there is no double
counting.”); id. at 810–11 (“[T]he DTSA’s equitable
remedies work as a powerful tonic to reduce the harm
a trade secret holder suffers beyond its lost business.
The DTSA allows district courts to enjoin the
misappropriation of a trade secret to prevent its
continued use and/or its diminution in value.”).
The question of duplication is the crux of TCS’s
position. TCS argues—both as a matter of blackletter
law and under the DTSA—that requiring TCS to pay
the costs it avoided in developing BaNCS by using
CSC’s trade secrets compensates CSC for the very
same harm that the injunctive remedy already prevents
by barring TCS from using CSC’s trade secrets or that
version of BaNCS in the future. TCS does not contest
the measure of the unjust enrichment damages. For its
part, CSC simply counters that the avoided-costs
damages are compensation for past benefits that TCS
received, thus getting TCS “back to square one,” while
the injunction prevents TCS’s future use of CSC’s
trade secrets. CSC is only partially right.
The unjust enrichment damages award is an estimation of the costs that TCS would have incurred had it
developed BaNCS in the same way but without the
benefit of CSC’s trade secrets. It aims to get TCS back
to square one. But that “square one” is not the position
that TCS was in before it ever accessed or used CSC’s
trade secrets. It is the position that TCS would have
been in had it actually incurred the necessary costs to
redevelop BaNCS on its own. And because, in this
37a
counterfactual, TCS would have incurred the costs to
redevelop BaNCS, it would necessarily have had
access to its redeveloped version of BaNCS. At present,
however, the unjust enrichment damages award requires
TCS to pay for the cost of redeveloping BaNCS, while
the injunction prohibits TCS from accessing its
redeveloped version of BaNCS. Similar overlap would
occur even with the alternate “income approach”
measure of unjust enrichment damages, which
estimates TCS’s profits from misappropriating CSC’s
trade secrets, including profits from “transforming”
Transamerica’s policies to BaNCS and profits from the
ultimate usage of the redeveloped BaNCS platform.
But there is not complete overlap. First, both the
avoided-costs measure and the income measure capture
some benefit that TCS received before the imposition
of the permanent injunction. Second, in addition to
enjoining TCS’s use of BaNCS moving forward, the
injunction also bars TCS from further accessing, using,
possessing, or retaining any of CSC’s trade secrets.
This portion of the injunction is not duplicative as it
prevents further use of the trade secrets, while the
unjust enrichment damages measure only the amount
of TCS’s unjust enrichment from its past use of the
trade secrets to redevelop BaNCS.
The resulting question, then, is the proper remedy
to eliminate the overlap. TCS would prefer for us to
vacate the unjust-enrichment damages award and
leave the injunction in place. But without complete
overlap, TCS’s requested vacatur of the entire award
is improper. The better solution here—both legally and
logistically—is instead to reduce the scope of the
injunction to eliminate the overlap. In addition to
being simpler than undertaking a fact-intensive
recalculation of damages, adjusting the injunction
38a
rather than the damages award recognizes that
“injunctions are an extraordinary remedy, to be
granted only when a party is threatened with injury
for which he cannot obtain a sufficient legal remedy.” 10
DSC Commc’ns Corp. v. Next Level Commc’ns, 107 F.3d
322, 328 (5th Cir. 1997); see also 4 ROGER M. MILGRIM,
MILGRIM ON TRADE SECRETS § 15.02 (measuring an
unjust enrichment award “by the value of the
misappropriated trade secret . . . may preclude an
award of injunctive relief on the theory that having
received the full value of its trade secret, the owner is
not entitled to further relief”).
We therefore vacate the injunction and remand to
the district court to modify the injunction to eliminate
its prohibition on TCS’s use of “Post-Misappropriation
BaNCS Material,” while maintaining the bar on TCS’s
access to and use of CSC’s trade secrets.
2.
In addition to compensatory damages, the advisory
jury determined that CSC should be awarded
$140,000,000 in exemplary damages. In its Findings of
Fact and Conclusions of Law, the district court then
reduced this amount to $112,303,166 because “the
DTSA expressly authoriz[es] ‘2 times’ the amount of
compensatory damages.”
Exemplary damages are authorized under the DTSA
when a defendant acts “willfully and maliciously” in
misappropriating a trade secret. 18 U.S.C. § 1836(b)(3)(C).
TCS concedes that if we affirm the district court’s
This remedy also better comports with TCS’s arguments
before the district court, where TCS asserted both that an
avoided-costs measurement was the proper measure of damages
and that imposing an injunction would be inappropriate because
CSC had failed to show that legal remedies would be inadequate.
10
39a
finding that TCS acted in a willful and malicious
manner—which we do, see supra Section III.A.2—the
district court had discretion to award some amount of
exemplary damages. But TCS argues that, regardless,
the amount of the award “was legally excessive and
should be vacated or reduced.”
TCS relies on State Farm Mutual Automobile
Insurance Company v. Campbell for the proposition
that any ratio of exemplary damages to compensatory
damages higher than 1:1 can exceed “the outermost
limit of the due process guarantee” when “compensatory damages are substantial . . . .” 538 U.S. 408, 425
(2003). This is a misreading of Campbell. In Campbell,
the Court rejected an exemplary damages award in the
ratio of 145:1—plainly far more extreme than the 2:1
ratio at issue here. Id. The Court observed that
“[s]ingle-digit multipliers are more likely to comport
with due process” before contemplating a hypothetical
scenario in which a 1:1 ratio might be the maximum
allowable “based upon the facts and circumstances of
the defendant’s conduct and the harm to the plaintiff.”
Id. Notably, the Court in Campbell built on the holding
in BMW of North America, Inc. v. Gore, which endorsed
punitive damages in a 4:1 ratio. 517 U.S. 559, 581
(1996); Campbell, 538 U.S. at 425.
TCS emphasizes Campbell’s holding that “[t]he most
important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the
defendant’s conduct.” Campbell, 538 U.S. at 419
(quoting Gore, 517 U.S. at 575). The Supreme Court
has instructed lower courts to evaluate several factors
to determine reprehensibility, including whether: “the
harm caused was physical as opposed to economic; the
tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others; the
40a
target of the conduct had financial vulnerability; the
conduct involved repeated actions or was an isolated
incident; and the harm was the result of intentional
malice, trickery, or deceit, or mere accident.” Id. TCS
argues that none of these factors apply, because the
district court’s ruling merely “faulted TCS for failing
to adequately respond to CSC’s letters expressing
concern—letters from a competitor that had just lost
its client to TCS and that had erroneously accused
TCS of using CSC’s information to benefit other
customers.”
The district court, however, did far more than that.
It made findings that TCS: “knew its misappropriation
of the Trade Secrets was wrong and intentionally
misappropriated the Trade Secrets”; “refused to
contact CSC” despite multiple notices of misappropriation; “made misrepresentations to Transamerica”
regarding use of the information; intentionally “provided
CSC source code copybooks to TCS off-shore resources
to create duplicate copybooks”; and failed to discipline
its employees for any misconduct. While it is true that
the harm was not physical or related to health and
safety and that CSC did not have financial vulnerability, the district court’s fact finding shows that TCS’s
conduct involved repeated action and that TCS acted
maliciously and through repeated deceit by using
rebadged employees to obtain CSC’s information.
Finally, we have held that when “Congress has
effectively set the tolerable proportion [of exemplary
to compensatory damages], the three-factor Gore
analysis is relevant only if the statutory cap itself
offends due process.” Abner v. Kansas City S. R. Co.,
513 F.3d 154, 164 (5th Cir. 2008). Here, the district
court conformed to the proportion set forth in the
DTSA—a ratio no higher than 2 times the compensatory
41a
damages—and based this decision in its findings of
fact and in caselaw from this circuit finding “that the
statutory maximum civil penalty offers the appropriate
award” when the “reprehensible conduct” does not
implicate violence, health, or safety, but does involve
trickery, deceit, and “a larger pattern of misconduct.”
Lincoln v. Case, 340 F.3d 283, 293–94 (5th Cir. 2003).
Given those findings, as the Supreme Court and our
court have recognized, “a higher ratio may be needed
where ‘the injury is hard to detect or the monetary
value of noneconomic harm might have been difficult
to determine.’” Id. at 294 (quoting Gore, 517 U.S. at 582).
We therefore affirm the district court’s award of
exemplary damages in twice the amount of the
compensatory damages.
3.
Finally, TCS asserts that the district court erred by
extending the injunction to bind non-parties. Rule
65(d)(2) of the Federal Rules of Civil Procedure provides that an injunction may only bind “(A) the parties;
(B) the parties’ officers, agents, servants, employees,
and attorneys; and (C) other persons who are in active
concert or participation with anyone described in Rule
65(d)(2)(A) or (B).” FED. R. CIV. P. 65(d)(2). In its final
judgment, the district court defined “TCS Parties” to
mean “TCS and their respective affiliates, successors,
directors, officers, employees, consultants, agents,
servants, and attorneys, and any and all other persons
who are in active concert or participation with any of
them.”
TCS moved to amend the judgment, arguing in
relevant part that the injunction should be amended
to define “TCS Parties” consistent with the terminology used in Rule 65(d). Namely, TCS proposed to revise
42a
the definition to exclude TCS and TAIC’s affiliates,
successors, directors, officers, employees, consultants,
agents, servants, and attorneys from the definition of
the “TCS Parties.” In its “limited opposition,” CSC
objected to the position that “affiliates, directors, and
successors are not within the scope of the injunction
under the ‘active concert or participation’ prong,” and
urged the district court to leave the definition as is or
modify it to include the aforementioned parties. The
district court denied TSC’s motion without providing
analysis.
Before us, the parties expend little effort on this
issue. Despite TCS’s assertion that “there was no
lawful basis to enjoin non-parties,” it acknowledges
that non-parties “who are in active concert or
participation” with a party may be enjoined under
Rule 65(d)(2). The Supreme Court has explained that
Rule 65(d)(2) is “derived from the common-law
doctrine that a decree of injunction not only binds the
parties defendant but also those identified with them
in interest, in ‘privity’ with them, represented by them
or subject to their control.” Regal Knitwear Co. v.
N.L.R.B., 324 U.S. 9, 14 (1945). For that reason, nonparties may be bound by an injunction, as long as they
fall within the parameters of Rule 65(d)(2). See id. at
14 (“The term ‘successors and assigns’ in an
enforcement order of course may not enlarge its scope
beyond that defined by the Federal Rules of Civil
Procedure. Successors and assigns may, however, be
instrumentalities through which defendant seeks to
evade an order or may come within the description of
persons in active concert or participation with them in
the violation of an injunction.”); see also Ganpat v.
Eastern Pacific Shipping PTE, Ltd., 66 F.4th 578, 585–
86 (5th Cir. 2023) (rejecting party’s argument that an
43a
injunction was over-broad for purporting to bind a
particular non-party affiliate).
In Le Tourneau Co. v. N.L.R.B., this court considered
the National Labor Relations Board’s request for
rehearing on the basis that the court’s injunction
referenced only the Le Tourneau Company and did not
explicitly bind the company’s “officers, agents, successors and assigns.” 150 F.2d 1012, 1012 (5th Cir. 1945).
The court denied rehearing and explained why adding
the requested language was “wholly unnecessary”:
A decree of injunction, like other personal
judgments, binds parties and their privies,
and only these. This Company’s officers, agents
and successors, though not parties to this case
personally, are privies of the Company. All
that is necessary hereafter to bind any of
them is to notify them of the injunction. As to
assigns, they may or may not be bound by
such an injunction. If the assignment be of the
Company’s whole plant and business, it is
probable the assignee would be bound as a
successor. If the parking lots alone were sold
off for another use, we take it the injunction
would not affect the new owner. Of course a
sham sale to evade the injunction would not
be allowed to succeed. Persons who are not
parties nor in law affected by an injunction
cannot be brought within it by naming them
in it. While it is common practice to write
into injunctions such broad expressions as
are under discussion, they really have no
effect. . . . [The entities described by Rule
65(d)(2)] are bound whether named or not.
44a
Nothing is gained by multiplying words about
them.
Id. at 1012–13 (internal citations omitted).
Here, TCS has not pointed to any specific non-party
that it believes the district court has impermissibly
enjoined. The parties apparently agree that affiliates,
directors, successors, and consultants can legally be
bound by an injunction but only to the extent allowed
by Rule 65(d)(2)(C). Their only disagreement, then, is
whether the district court’s definition of “TCS Parties”
captures that agreement. To some extent, altering the
definition seems unnecessary because, regardless, the
permissible reach of the injunction is set by Rule
65(d)(2)(C). See Le Tourneau Co., 150 F.2d at 1012– 13;
Regal Knitwear, 324 U.S. at 14. Still, by intermingling
the terms “affiliates,” “directors,” and “consultants”
(which require “active concern or participation”) with
the terms that appear in Rule 65(d)(2)(B) (which do
not), the existing definition of “TCS Parties” risks
conflating these categories. For that reason, we direct
the district court on remand to modify the definition of
“TCS Parties” as follows, which more closely mirrors
CSC’s offered compromise:
“TCS Parties” means (i) TCS and TAIC; (ii)
their officers, agents, servants, employees,
and attorneys; and (iii) other persons who are
in active concert or participation with anyone
described in subsections (i) or (ii) (including
directors, affiliates, successors, and consultants).
This definition tracks the language of Rule 65(d)(2)
and reflects the parties’ shared position that nonparties who do not fall within subsection (d)(2)(B) can
be enjoined but only if they are “in active concert or
participation” as provided by subsection (d)(2)(C).
45a
IV.
For the foregoing reasons, we VACATE the injunction and REMAND to the district court for the
issuance of a revised injunction consistent with
this opinion—namely, removing the bar on TCS’s
future use of post-appropriation BaNCS material and
clarifying that the scope of the injunction comports
with Rule 65(d)(2). We otherwise AFFIRM the rulings
of the district court on all remaining issues.
46a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[Filed: December 19, 2025]
————
No. 24-10749
————
COMPUTER SCIENCES CORPORATION,
Plaintiff—Appellee,
versus
TATA CONSULTANCY SERVICES LIMITED;
TATA AMERICA INTERNATIONAL CORPORATION,
Defendants—Appellants.
————
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-970
————
ON PETITION FOR REHEARING AND
REHEARING EN BANC
Before HIGGINSON, HO, and WILSON, Circuit Judges. *
PER CURIAM:
The petition for panel rehearing is DENIED.
Because no member of the panel or judge in regular
active service requested that the court be polled on
rehearing en banc (FED. R. APP. P. 40 and 5TH CIR. R.
40), the petition for rehearing en banc is DENIED.
Judge Irma Carrillo Ramirez did not participate in the
consideration of the rehearing en banc.
*
47a
APPENDIX C
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
————
Civil Action No. 3:19-CV-0970-X
————
COMPUTER SCIENCES CORPORATION,
Plaintiff,
v.
TATA CONSULTANCY SERVICES LIMITED, et al.,
————
Defendants.
FINAL JUDGMENT
From November 8, 2023 to November 17, 2023, this
Court presided over a trial in this case before an
advisory jury. The advisory jury found Tata Consultancy
Services Limited (“TCS”) liable for willful and malicious
trade secret misappropriation under the federal Defend
Trade Secrets Act of 2016 (“DTSA”) and awarded
Computer Sciences Corporation (“CSC”) $70,000,000
in compensatory damages and $140,000,000 in
exemplary damages.
Through its Findings of Fact and Conclusions of Law
issued earlier today, the Court also found TCS liable
for willful and malicious trade secret misappropriation
under the DTSA and awarded CSC $56,151,583 in
compensatory damages and $112,303,166 in exemplary
damages. In the Court’s Findings of Fact and
Conclusions of Law, the Court also made rulings on
remaining issues, including prejudgment interest,
48a
entitlement to attorney’s fees, entitlement to costs, and
permanent injunctive relief. Because the Court
granted in part CSC’s Amended Motion for Entry of
Judgment, the Court now enters judgment on the
Findings of Fact and Conclusions of Law in the
following manner:
1. The Court ORDERS that TCS is liable for
willful and malicious trade secret misappropriation under the DTSA.
2. The Court ORDERS that TCS is liable to CSC
for $56,151,583 in compensatory damages and
$112,303,166 in exemplary damages.
3. The Court ORDERS TCS to pay CSC
$168,454,749 in compensatory and exemplary
damages.
4. The Court ORDERS that TCS is liable for
$25,773,576.60 in prejudgment
interest
through June 13, 2024.
5. The Court ORDERS TCS to pay CSC
$25,773,576.60 in prejudgment
interest
through June 13, 2024.
6. The Court ORDERS that TCS is liable for postjudgment interest at an annual rate of 4.824%
starting from the date of entry of this judgment.
7. The Court ORDERS that TCS is liable for CSC’s
attorney’s fees in an amount to be determined
in a later order. CSC must file a motion for
attorney’s fees with supporting evidence within
14 days of the date of this order.
8. The Court ORDERS that TCS is liable for CSC’s
costs in an amount to be determined in a later
order. CSC must file a bill of costs within 14
days of the date of this order.
49a
9. In accordance with the Findings of Fact and
Conclusions of Law, the Court ENJOINS TCS as
follows:
a. Additional Definitions
1) “Transamerica” means Transamerica
Corporation or any of its affiliates,
including Money Services Inc.
2) “CSC Trade Secrets” means CSC’s
proprietary source code and confidential
documentation for its VANTAGE-ONE®/
Wealth Management AcceleratorTM and
CyberLife® software platforms.
3) “TCS Parties” means TCS and their
respective affiliates, successors, directors,
officers, employees, consultants, agents,
servants, and attorneys, and any and all
other persons who are in active concert or
participation with any of them.
4) “TCS I&A Products” means TCS software
providing solutions in the U.S. life
insurance
and
annuities
market,
including but not limited to BaNCS.
5) “Post-Misappropriation BaNCS Materials”
means code, including source code and
object code, for BaNCS and any technical
documentation describing actual or
potential operation of BaNCS, in each
case developed after July 18, 2017.
6) “TCS Transamerica Support Personnel”
means the TCS officers, directors,
employees, consultants, agents, and
servants, if any, who are necessary to
support Transamerica’s use of Post-
50a
Misappropriation BaNCS Materials for
the purpose of administering existing
Transamerica products currently being
administered on TCS I&A Products.
7) “Monitor” means an independent monitor,
to be appointed by CSC and paid for by
TCS.
b. Without express written consent directly
from CSC at a point after entry of this
judgment, the TCS Parties shall not:
1) access, attempt to access, use, or attempt
to use any CSC Trade Secrets for any
reason, including but not limited to the
design,
development,
enhancement,
marketing, implementation, or use of any
TCS I&A Products;
2) possess or retain any CSC Trade Secrets
in any form in any location, including
(i) on any of TCS’s servers (including
email servers), shared drives, shared
domains, or other places of electronic
storage, (ii) on any of Transamerica’s
servers (including email servers), shared
drives, shared domains, or other places of
electronic storage to which TCS Parties
have access, or (iii) on any other servers
(including email servers), shared drives,
shared domains, or other places of
electronic storage to which TCS Parties
have access, including computers used by
TCS Parties;
3) access, attempt to access, use, or attempt
to use any Post-Misappropriation BaNCS
Materials for the design, development,
51a
enhancement, marketing, implementation, or use of any TCS I&A Products; or
resist, hamper, delay, or otherwise interfere with the activities of the Monitor,
who for a period of ten years shall have
unfettered access at any time to monitor
TCS’s design, development, enhancement, marketing, implementation, and
use of any TCS I&A Products to ensure
the TCS Parties do not improperly use
any CSC Trade Secrets or PostMisappropriation BaNCS Materials.
c. For a period of 18 months, TCS shall not
permit any TCS Parties who had access to
any CSC Trade Secrets to work on, or
assist in, directly or indirectly, the design,
development, enhancement, marketing,
implementation, or use of any TCS I&A
Products.
d. For a period of ten years, TCS shall:
1) maintain a list of all TCS Parties who had
access to any CSC Trade Secrets;
2) permit the Monitor to confirm that TCS
Parties do not have access to CSC Trade
Secrets;
3) permit the Monitor to confirm that TCS
Parties do not possess or retain any CSC
Trade Secrets in any form in any location,
including in the locations described in
paragraph 9(b)(2) above;
4) permit the Monitor to talk with any TCS
Parties who might be able to assist the
Monitor in determining whether CSC
52a
Trade Secrets or Post-Misappropriation
BaNCS Materials are being used in the
design, development, enhancement, marketing, implementation, or use of any
TCS I&A Products;
5) provide the Monitor with unfettered
access to TCS Parties; permit the Monitor
to examine, evaluate, and analyze TCS’s
hard-copy and electronic information in
any location, including in the locations
described in paragraph 9(b)(2) above, to
determine whether CSC Trade Secrets or
Post-Misappropriation BaNCS Materials
are being used in the design, development, enhancement, marketing, implementation, or use of any TCS I&A Products; and
6) provide the Monitor with unfettered
access to the hard-copy and electronic
information described above.
e. As an exception to paragraph 9(b) above,
to the extent Transamerica must use PostMisappropriation BaNCS Materials for
existing Transamerica products currently
being administered on TCS I&A Products:
1) TCS shall maintain a list of the TCS
Transamerica Support Personnel and
provide it to CSC; and
2) the TCS Transamerica Support Personnel
may access and use the PostMisappropriation BaNCS Materials
solely for the purpose of administering
the existing Transamerica products
currently being administered on TCS
I&A Products.
53a
f. CSC may confidentially provide the Monitor
with the type of information CSC deems
necessary to monitor TCS’s design,
development, enhancement, marketing,
implementation, or use of any TCS I&A
Product to ensure that TCS does not
improperly use any CSC Trade Secrets.
g. The Monitor shall disclose to the Court and
CSC the substance or outcome of its
investigation six months after the date of
this judgment and once every year
thereafter and may disclose to the Court
whether the Monitor has identified any
evidence of misappropriation of any
company’s trade secrets (not limited to CSC
Trade Secrets).
h. Six months after the date of this judgment
and once every year thereafter for the next
ten years, TCS shall file with the Court a
report in writing and under oath setting
forth in detail the manner and form with
which TCS has complied with this Order.
Within 14 days, CSC must file a motion for
determination of the amount of its attorney’s fees and
expenses and a separate bill of costs pursuant to
Federal Rule of Civil Procedure 54(d).
IT IS SO ORDERED this the 13th day of June, 2024.
/s/ Brantley Starr
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
54a
APPENDIX D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
————
Civil Action No. 3:19-CV-0970-X
————
COMPUTER SCIENCES CORPORATION,
v.
Plaintiff,
TATA CONSULTANCY SERVICES LIMITED, et al.,
————
Defendants.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Before the Court are the parties’ motions for entry
of judgment. (Docs. 506, 509). From November 8,
2023 to November 17, 2023, this Court presided over
a trial before an advisory jury. The jury found
Defendant Tata Consultancy Services Limited
(“TCS”) liable for willful and malicious trade secret
misappropriation under the federal Defend Trade
Secrets Act of 2016 (“DTSA”) and awarded Plaintiff
Computer Sciences Corporation (“CSC”) $70,000,000
in compensatory damages and $140,000,000 in
exemplary damages. 1
After careful consideration, the Court GRANTS IN
PART CSC’s amended motion for entry of judgment
(Doc. 509) and DENIES TCS’s motion (Doc. 506). As
1
Doc. 488.
55a
discussed more fully below, CSC’s damages expert
testified at trial that TCS was unjustly enriched in
the amount of $56,151,583, and the Court finds that
he testified credibly. However, in its post-trial motion
for entry of judgment, CSC contends that, by accounting for inflation, TCS was actually unjustly
enriched by at least $56,151,583 to $74,870,716,
therefore supporting the advisory jury’s $70,000,000
compensatory damages award. The role of an
advisory jury is to assist the judge, but it is the duty
of the judge to make findings of fact and enter
judgment in accordance with the record before the
Court. 2 And as the factfinder, the Court cannot
consider disputed evidentiary facts on paper when it
did not have the opportunity to examine the
credibility of that evidence at trial. 3 However, the
Court is awarding pre-judgment interest at a rate of
8.5% (totaling $25,773,576.60), which accounts for a
majority of the roughly $42 million delta CSC seeks.
Accordingly, after a thorough review of the evidentiary record, the Court finds that the evidence
supports no more than a $56,151,583 compensatory
damages award in light of the expert testimony in the
evidentiary record and an award of $112,303,166 in
exemplary damages. Likewise, the Court cannot hold
Tata America International Corporation (“TAIC”)
jointly and severally liable with TCS given that CSC
did not present adequate proof of liability against
TAIC at trial. Finally, the Court concludes CSC is
entitled to costs and attorney’s fees, and the Court
awards prejudgment interest and injunctive relief.
2
See Aetna Ins. Co. v. Paddock, 301 F.2d 807, 811 (5th Cir.
1962).
3
See Lifshen v. 20/20 Acct. Sols., L.L.C., 858 F. App’x 704,
708–09 (5th Cir. 2021) (per curiam).
56a
In accordance with Federal Rule of Civil Procedure
52(a), the Court makes the following findings of fact
and conclusions of law:
FINDINGS OF FACT
1.
The facts below were all proven by at least a
preponderance of the evidence.
2.
The facts below supporting willful and
malicious misappropriation were also proven
by clear and convincing evidence.
A. Parties
3.
CSC provides information technology services
and business solutions software to its
customers, including customers in the life,
wealth, and annuities industry. 4
4.
CSC was founded in 1959, is a Nevada corporation, and has a principal place of business in
Ashburn, Virginia. 5
5.
CSC is a wholly owned subsidiary of DXC
Technology Company (“DXC”). 6
6.
TCS is a global company offering technology
and consulting services to its customers,
including customers in the insurance industry. 7
7.
TAIC is a wholly owned subsidiary of TCS
Limited. 8
4
Doc. 492 at 246:1–8, 246:18–247:1.
5
Doc. 451 at 4.
6
Doc. 492 at 326:16–18.
7
Doc. 496 at 1213:2–11.
8
Doc. 451 at 5.
57a
Through its subsidiaries, Transamerica Corporation provides life insurance, annuities, and
other long-term savings and investment products to its customers. 9
8.
9.
Transamerica Corporation is a wholly owned
subsidiary of Aegon N.V. 10
10.
MSI is a wholly owned subsidiary of Transamerica Corporation. 11
11.
For many years, CSC has licensed Vantage
and CyberLife—two CSC software platforms
used to administer and process annuities and
life insurance policies—to Transamerica pursuant to license agreements. 12
12.
In December 1994, CyberTek Corporation
(“CyberTek”) entered into an Enterprise
License Agreement with MSI under which
CyberTek would license certain software
systems to MSI (as amended, the “CyberLife
Agreement”). 13
13.
Effective September 1999, CyberTek and MSI
amended the CyberLife Agreement to include
certain CyberLife software as part of the
licensed system. 14
14.
In 2000, CSC acquired CyberTek’s successor. 15
9
Id.
10
Id.
11
Id.
12
Doc. 492 at 246:22–247:4, 252:6–15, 291:1–8, 253:8–17.
13
Doc. 451 at 5.
14
Id.
15
Doc. 492 at 271:9–14.
58a
In December 1998, CSC entered into a CSC
Customer Agreement with Transamerica’s
predecessor, Aegon USA, Inc. (“Aegon USA”),
under which CSC would license certain software systems to Aegon USA (as amended, the
“Vantage Agreement”). 16
15.
16.
Effective June 2005, CSC and MSI, as assignee
of Aegon USA, amended the Vantage Agreement to include certain Vantage software as
part of the licensed system. 17
17.
In or around 2013, TCS began providing
maintenance services to Transamerica for
Vantage and CyberLife pursuant to a 2013
Master Services Agreement between TCS and
MSI. 18
18.
In 2014, to allow third parties like TCS to work
on CSC’s software with certain restrictions,
CSC and Transamerica entered into a ThirdParty Access Addendum to Software License
Agreements (the “TPAA”) effective February
2014. 19
19.
The TPAA is an “Addendum” to the “Software
license agreements set forth on Exhibit A,”
which are the CyberLife Agreement and the
Vantage Agreement. 20
16
Doc. 451 at 5.
17
Id.
18
Id.; Doc. 381 at 2–3.
19
Doc. 381 at 2–3; Doc. 451 at 5.
20
PX081 at 1, 6.
20.
59a
The TPAA allowed TCS to “access, copy,
execute and use” CSC’s software “solely for the
benefit of” Transamerica. 21
21.
The TPAA also allowed TCS “to copy” and
“modify” CSC’s software only if CSC’s earlier
agreement with Transamerica permitted such
modifications. 22
22.
In 2016, Transamerica decided its software
needed a refresh, so it initiated a vendor-selection process through which both CSC and TCS
bid for the work. 23
23.
At that time, TCS was looking for a client to
enter the third-party administrator market in
the U.S. insurance industry. 24
24.
BaNCS is the software platform that TCS uses
to, among other things, administer and process
annuities and life insurance policies. 25
25.
As of 2017, TCS was still building its U.S.
geography layer for BaNCS, and there was no
company using BaNCS to administer life
insurance and annuity products in the U.S.
because BaNCS was not ready to administer
such products in the U.S. 26
21
Id. at 3; Doc. 381 at 2–3.
22
PX081 at 3; Doc. 381 at 2.
23
Doc. 495 at 865:16–25.
24
Doc. 493 at 440:15–18, 441:7–11.
25
Id. at 481:25–482:6.
26
Id. at 440:19–441:6, 441:12–22; Doc. 496 at 1378:16–
1379:1, 1379:2–13, 1531:10–14.
26.
60a
TCS believed that landing Transamerica as an
anchor client would create an opportunity to
adapt BaNCS for the U.S. market. 27
27.
TCS won the selection process, and Transamerica began to transition from CSC’s software platforms to TCS’s BaNCS platform. 28
28.
On August 3, 2017, TCS and MSI entered into
Service Agreement No. 75 (“Project Chess –
Due Diligence”) to the 2013 Master Services
Agreement. 29
29.
On January 11, 2018, TCS entered into
agreements with MSI to, among other things,
administer Transamerica’s U.S. life insurance
and annuity business lines using BaNCS. 30
30.
The January 2018 agreements were TCS’s first
contracts with a U.S. insurance company wherein it would be licensing BaNCS to administer
and process annuities and life insurance
policies. 31
31.
As part of the January 2018 agreements, TCS
hired over 2,200 people who were formerly
employed by Transamerica (“TCS Rebadged
Employees”), including former Transamerica
employees who maintained Vantage and
CyberLife at Transamerica. 32
27
Doc. 493 at 441:15–22.
28
Doc. 495 at 866:20–22, 878:12–14; Doc. 492 at 291:9–14.
29
Doc. 451 at 6; PX115.
30
Doc. 451 at 5; PX094.
31
Doc. 496 at 1379:17–22.
32
Doc. 451 at 5; Doc. 494 at 753:14–17.
32.
61a
TCS promised to convert around 10.5 million
Transamerica policies to BaNCS in three to
five years. 33
33.
This promise was aggressive. 34
34.
Paul Ko—CSC’s current Account Manager for
the Transamerica account, whose testimony
the Court finds credible and reliable—testified
that he had never heard of a conversion of over
10 million policies before the 2018 TCSTransamerica contracts. 35
35.
The Transamerica conversion to BaNCS was a
“black box” conversion, which is more difficult
and expensive. 36
36.
A black box conversion is when a company
converts from one or more source systems
(here, Vantage and CyberLife) to a target
system (BaNCS) and the target company (TCS)
does not have permission to access the source
code or technical documents of the source
systems to complete the conversion. 37
37.
TCS’s promise was also ambitious because no
U.S. insurance company had ever used BaNCS
and TCS was still building BaNCS for use in
the U.S. 38
33
Doc. 494 at 802:17–22.
34
Id. at 802:8–803:5, 804:8–12.
35
Id. at 804:5–7.
36
Id. at 804:13–805:23.
37
Id. at 804:13–805:3.
38
Doc. 496 at 1378:16–1379:13; Doc. 493 at 440:19–441:6,
441:12–14.
38.
62a
Even as late as April 14, 2021—more than
three years after TCS’s promise to Transamerica—many carrier-agnostic functions necessary for BaNCS to be able to administer life
insurance and annuity products in the U.S.
were missing and still needed to be developed. 39
B. Trade Secret Misappropriation
39.
CSC treats its proprietary source code and
confidential documentation for its VANTAGE–
ONE® / Wealth Management AcceleratorTM
(“Vantage”) and CyberLife® (“CyberLife”)
software platforms (the “Trade Secrets”) as
trade secrets, and in the opinion of CSC’s
technical expert Paul Pinto, whose qualifications are discussed below and whose
opinions are credible and support the Court’s
findings of fact, the Trade Secrets qualify as
trade secrets under the requirements of the
DTSA. 40
40.
CSC owns the Trade Secrets. 41
41.
CSC owns the Vantage software platform,
including any modifications made to it by
Transamerica. 42
39
Doc. 496 at 1382:10–1385:18; PX451.
40
Doc. 494 at 796:17–24; Doc. 492 at 254:13–9, 260:6–10;
Doc. 495 at 931:21–932:1; 932:9– 950:25; 948:4–949:20; 950:3–
950:25.
41
PX069; PX088; PX081; Doc. 495 at 933:8–11; 935:12–936:2;
936:12–937:18; 939:3–942:16; 947:12–19, 949:7–9.
42
Doc. 492 at 251:21–23; PX010 at 1; Doc. 494 at 799:9–
800:21, 833:14–18; PX069; PX081; Doc. 494 at 779:15–780:5.
42.
63a
The Vantage Agreement provides that “[a]ll
copies of and intellectual property rights in”
Vantage, “includ[ing] all computer code” and
“Documentation . . . provided by CSC with”
Vantage, “including translations, adaptions,
compilations, partial copies within other
software, upgrades, corrections, modifications,
enhancements, and derivative works, whether
made by [Transamerica] or CSC, shall be the
property of CSC.” 43
43.
The Vantage Agreement further provides that
“[Transamerica] understands that [Vantage]
(including the program code, Documentation,
specifications, logic and design of [Vantage]
and any translations, adaptions, compilations,
partial copies within other software, upgrades,
corrections, modifications, enhancements, and
derivative works of [Vantage]) are confidential
trade secrets of CSC, developed at great
expense.” 44
44.
CSC owns the CyberLife software platform,
including any modifications made to it by
Transamerica. 45
45.
The CyberLife Agreement provides that “any
modified or merged version of [CyberLife],”
including the “computer programs for
[CyberLife] and its subcomponents designated
herein, and all materials related thereto
43
PX069 at 3.
44
Id. at 8.
45
Docs. 492–93 at 251:24–252:2, 272:13–22, 428:7–20; PX088
at 4; PX010 at 1; Doc. 494 at 797:24–799:8; Doc. 495 at 933:8–
11; 935:12–936:2; 936:12–937:18; 939:3–942:16; 947:12–19;
PX523 at 1–2; PX088; PX081.
64a
provided to [Transamerica] under this Agreement, which may include but not be limited to
. . . documentation, source codes, object codes,
specifications and materials of any type
whatsoever (tangible or intangible and machine or human readable) which incorporate or
reflect the design, specifications, or workings of
[CyberLife] and any changes, additions or
modifications,” “shall remain subject to the
LICENSE AND TITLE, POSSESSION AND
USE and TERMINATION provisions of this
Agreement.” 46
46.
The CyberLife Agreement further provides
that it “does not grant [Transamerica] any
legal or equitable title or other right in
[CyberLife]
or
any
modifications
of
47
[CyberLife].”
47.
In the CyberLife Agreement, Transamerica
“acknowledge[d] that [CyberLife] contain[s]
unique, confidential and secret information
and is a trade secret and confidential proprietary product of [CSC].” 48
48.
CSC created voluminous technical manuals for
Vantage and CyberLife. 49
49.
CSC owns these technical manuals. 50
46
PX088 at 2–3, 5.
47
Id. at 4.
48
Id.
49
Doc. 492 at 255:23–256:3, 256:23–257:2, 258:12–16.
50
Doc. 492 at 255:23–256:3, 256:23–257:4, 258:12–18, 275:1–6;
PX002 at 20; PX010 at 1.
50.
65a
Transamerica also created technical manuals
for Vantage and CyberLife. 51
51.
Under its agreements with Transamerica, CSC
owns the confidential information regarding
Vantage and CyberLife in these technical
manuals. 52
52.
CSC created source code, including copybooks,
for Vantage and CyberLife. 53
53.
CSC owns this source code, including any
modifications made by Transamerica. 54
54.
Pinto conducted an investigation into whether
the Trade Secrets are generally known,
including searches of the public domain, and
opined that the Trade Secrets are not generally
known. 55
55.
Jon Taute—a former CSC employee who
worked in the insurance software industry for
over 40 years and for CSC or one of its
predecessors for 35 years, and whose testimony
the Court finds credible and reliable—also
testified that he would not provide the Trade
Secrets to employees of a competitor building a
competing policy administration system. 56
51
PX549; PX550; PX551; PX552.
52
PX069 at 3–4, 8; PX088 at 2–5.
53
Doc. 492 at 266:7–9; PX534 at 1–983.
54
Doc. 492 at 261:22–262:1, 264:7–11, 265:17–25, 266:10–11;
PX534 at 1; PX002 at 20; PX010 at 1; PX069 at 3–4, 8; PX088 at
2–5.
55
56
Doc. 495 at 933:12–21, 949:10–950:7.
Doc. 492 at 243:21–244:2, 245:7–10, 246:15–17, 254:20–255:4,
260:12–19, 266:20–267:4.
56.
66a
The Trade Secrets consist of or relate to highly
specialized and complex software systems with
millions of lines of code. 57
57.
Pinto evaluated the Trade Secrets and opined
that they are not readily ascertainable through
proper means. 58
58.
CSC has one of the largest insurance software
businesses in the world. 59
59.
CSC receives hundreds of millions of dollars in
revenue per quarter from its insurance group,
including software licensing fees, maintenance
and support fees, and fees for software
enhancements and modifications. 60
60.
From 2015 to 2020, CSC’s third-party software
administration business grew from $100
million to $250 million, largely due to Vantage
and CyberLife. 61
61.
CSC’s insurance business process outsourcing
(“BPO”) services consist of providing end-toend processing for entire blocks of business,
often including underwriting and death claims
for millions of insurance policies. 62
62.
CSC administers BPO services for approximately 20 million insurance policies through
57
Id. at 252:6–20.
58
Doc. 495 at 949:24–950:7.
59
Doc. 493 at 569:19–23, 571:8–15.
60
Doc. 492 at 267:12–268:8; Doc. 493 at 569:19–23.
61
Doc. 493 at 571:8–572:2.
62
Doc. 492 at 269:8–270:1.
67a
CyberLife and approximately 18 million insurance policies through Vantage. 63
63.
CSC would not be able to offer these BPO
services without Vantage and CyberLife. 64
64.
CSC would lose millions of dollars of revenue if
a competitor improperly obtained the Trade
Secrets. 65
65.
BaNCS competes with Vantage and CyberLife
in the U.S. life insurance and annuities
market, and as found in Section IV.C below,
TCS obtained economic value from the disclosure and use of the Trade Secrets, which
demonstrates that another person could obtain
economic value from the disclosure or use of
the Trade Secrets. 66
66.
Pinto opined that the Trade Secrets derive
independent economic value because they are
secret and not generally known or readily
ascertainable through proper means. 67
67.
CSC securely stores its source code for Vantage
and CyberLife in electronic form in source code
libraries on servers used by CSC developers. 68
68.
CSC marks its technical manuals for Vantage
and CyberLife with statements that the
information is owned by CSC and is tradesecret,
confidential,
and
proprietary
63
Id. at 269:8–270:1.
64
Id. at 270:2–4.
65
Id. at 270:5–9.
66
Doc. 495 at 946:8–15; Doc. 494 at 801:18–22.
67
Doc. 495 at 933:12–21; 950:8–12.
68
Doc. 492 at 261:17–21, 263:16–20.
68a
information, and marks its Vantage and
CyberLife source code, including copybooks,
with a banner at the beginning stating: “This
program is proprietary, confidential and trade
secret property of Computer Sciences Corporation and may not be copied or published
without prior written consent.” 69
69.
The CyberLife Agreement allows Transamerica to use the Trade Secrets only to process data for Transamerica’s own use, does not
grant Transamerica any legal title or other
rights to CyberLife or modifications made to
CyberLife, and does not permit Transamerica
to use its access to CyberLife to build a
competing product.
70.
Section 1.1 of the CyberLife Agreement defines
the “System” as “[a]n assembly of [CSC’s]
computer programs for a System and its
subcomponents designated herein, and all
materials related thereto provided to [Transamerica] under this Agreement, which may
include but not be limited to, flow charts, logic
diagrams, documentation, source codes, object
codes, specifications and materials of any type
whatsoever (tangible or intangible and
69
Doc. 492 at 274:9–15, 275:1–10; Doc. 495 at 935:12–939:2;
Doc. 493 at 490:19–491:8; PX474 at 2; PX475 at 2; PX476 at 2;
PX477 at 2; PX478 at 2; PX479 at 2; PX480 at 2; PX481 at 2;
PX482 at 2; PX483 at 2; PX484 at 2; PX485 at 2; PX486 at 2;
PX487 at 2; PX489 at 2; PX490 at 2; PX491 at 2; PX492 at 2;
PX493 at 2; PX494 at 2; PX495 at 2; PX496 at 2; PX505 at 2;
PX506 at 1; PX507 at 2; PX509 at 2; PX510 at 2; PX511 at 2;
PX514 at 2; PX515 at 2; PX517 at 3; PX519 at 2; PX520 at 2;
PX521 at 2 and footer on 1–210; PX523 at 2; PX524 at 2; PX525
at 2; PX531 at 2; Doc. 492 at 261:22– 262:1, 262:13–16, 264:7–
11, 265:17–25; PX534 at 1.
69a
machine or human readable) which incorporate or reflect the design, specifications, or
workings of such programs and any changes,
additions or modifications provided by [CSC]
through Maintenance or Enhancements.” 70
71.
Under Section 4.1, the “License and Title”
granted to Transamerica is that Transamerica
“is entitled to use said mainframe Systems
solely at the Authorized Location to process
data for its own use and for the Authorized
Companies.” 71
72.
Section 4.2 provides that the CyberLife Agreement does not grant Transamerica “any legal
or equitable title or other right in the Systems
or any modifications of the Systems,” and that
“[n]either this Agreement nor any of the
Systems or related materials may be assigned,
sublicensed, or otherwise transferred by
[Transamerica], voluntarily or involuntarily,
without prior written consent by [CSC].” 72
73.
Under Section 5.1, Transamerica acknowledged that “the System(s) contain unique,
confidential and secret information and is a
trade secret and confidential proprietary product of [CSC],” and that Transamerica cannot
“allow any person or entity to transmit or
reproduce the System(s) in whole or in part in
any manner except as permitted” in the
agreement. 73
70
PX088 at 2–3.
71
Id. at 4.
72
Id.; Doc. 492 at 271:20–272:22.
73
PX088 at 4.
70a
Under Section 5.3, Transamerica “may modify
the Systems or merge the System with other
computer programs; however, any modified or
merged version of the System shall remain
subject to the License and Title, Possession
and Use, and Termination provisions of [the]
Agreement.” 74
74.
75.
Under Section 5.4, Transamerica “may not
reverse engineer, reverse assemble or reverse
compile any System or part thereof.” 75
76.
Under the Vantage Agreement, CSC provided
Transamerica with a limited license to use
Vantage, pursuant to the confidentiality
provisions—the agreement did not provide
Transamerica with any title or ownership in
Vantage, but rather provides that CSC owns
any works, modifications, enhancements,
copies,
software
upgrades,
corrections,
enhancements, and derivative works of
Vantage, irrespective of who makes them. 76
77.
Under Section 2 of the Vantage Agreement,
“Documentation” is defined as “the formal
documentation provided by CSC with a
Software Product licensed by [Transamerica]
as updated by CSC from time to time,” and
“Software Product” is defined as “any computer
software package owned or marketed by CSC,
and includes all computer code (whether
machine readable or human readable),
74
Id. at 5.
75
Id.
76
Doc. 495 at 941:16–942:16; PX069 at 3–4, 8.
71a
Documentation,
and
related
materials
identified by CSC as part of the package.” 77
78.
Under Section 3.1, Transamerica “receives only
a limited license to use [the] Software
Products,” “[n]o title, ownership, or intellectual
property
rights
are
transferred
to”
Transamerica,
Transamerica
“may
use
Software Products licensed to [Transamerica]
only in the manner and for the purposes
expressly authorized by [the] Agreement,” and
“CSC reserves all rights not expressly granted
to [Transamerica].” 78
79.
Under Section 3.2, “[a]ll copies of and intellectual property rights in Software Products,
including translations, adaptions, compilations, partial copies within other software,
upgrades, corrections, modifications, enhancements, and derivative works, whether made by
[Transamerica] or CSC, shall be the property
of CSC and subject to the terms of
[Transamerica’s] license to the Software
Products.” 79
80.
Under Section 9.1, Transamerica recognized
“that the Software Products (including the
program code, Documentation, specifications,
logic and design of the Software Products and
any translations, adaptations, compilations,
partial copies within other software, upgrades,
corrections, modifications, enhancements and
derivative works of the Software Products) are
77
PX069 at 3.
78
Id.
79
Id.
72a
confidential trade secrets of CSC, developed at
great expense.” 80
81.
CSC’s other license agreements for CyberLife
and Vantage contain language similar to the
restrictive language in the CyberLife Agreement. 81
82.
Under Section 1 of
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