Petition for Writ of Certiorari — Trinseo Europe GmbH, Petitioner v. Kellogg Brown & Root, L.L.C., et al.

Supreme Court briefJun 2, 2026

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No. 25-____

IN THE

Supreme Court of the United States

————

TRINSEO EUROPE GMBH,

Petitioner,

KELLOGG BROWN & ROOT, L.L.C.; STEPHEN HARPER,

also known as STEVE HARPER; STEVE HARPER

CONSULTING, INCORPORATED; POLYCARBONATE

CONSULTING SERVICES, INCORPORATED,

Respondents.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

PETITION FOR WRIT OF CERTIORARI

————

STEWART HOFFER

JUSTIN R. BRAGA

HICKS THOMAS LLP

700 Louisiana Street

Suite 2300

Houston, Texas 77002

CANDICE C. WONG

Counsel of Record

ELIZABETH J. KALANCHOE

JOHN Q. RUSSELL

FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON LLP

801 17th Street, N.W.

Washington, DC 20006

(202) 639-7000

Candice.Wong@friedfrank.com

Counsel for Petitioner

June 2, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Trinseo Europe GmbH sued under the Defend Trade

Secrets Act alleging the theft of 10 trade secrets, all

relating to one system that has always been licensed

as an integrated package. Trinseo offered trial

testimony supporting $130 million in damages but did

not artificially divide up that valuation per trade

secret. After trial, a jury found misappropriation of

some but not all the alleged secrets (four of 10) and

awarded some but not all the alleged damages—

approximately $77 million of the $130 million requested.

Importing a patent-law practice that it conceded

was an “imperfect overlay,” the district court vacated

the damages award in a post-trial judgment as a

matter of law ruling. App.86. It determined that

because Trinseo had not undertaken “strict apportionment,” App.52-53—apportioning damages per trade

secret or prescribing a methodology to do so—the jury

had no legally sufficient basis to attribute damages to

the four misappropriated secrets it ultimately found.

The Fifth Circuit took issue with the district court’s

labeling of its approach as “strict,” but endorsed the

same position: Absent a per-trade-secret apportionment showing or methodology, a damages award will

amount to “speculation” with “no basis” as a matter of

law. App.18, 23. Trinseo thus received no damages,

not $77 million, for the proven theft of its secrets.

The question presented is:

Whether, where a jury finds misappropriation of

some but not all alleged trade secrets, the jury’s

damages award has no legally sufficient basis unless

the trial evidence apportioned damages per trade

secret or prescribed a methodology to do so.

(i)

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioner Trinseo Europe GmbH was the plaintiff

in the U.S. District Court for the Southern District of

Texas and the appellant in the U.S. Court of Appeals

for the Fifth Circuit. Respondents Kellogg Brown &

Root, LLC (“KBR”), Stephen Harper, Steve Harper

Consulting, Inc., and Polycarbonate Consulting

Services, Inc. were defendants and appellees below.

Trinseo Europe GmbH is a wholly owned subsidiary

of Trinseo PLC, a publicly traded company with the

ticker symbol TSE. No publicly held corporation owns

10% or more of Trinseo PLC’s stock. Investment funds

associated with M&G PLC, a publicly traded company

on the London Stock Exchange, own 10% or more of

Trinseo PLC’s stock.

iii

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

• Trinseo, S.A. v. Harper, et al., No. 20-0478 (S.D.

Tex.) (post-trial motion for judgment as a

matter of law on damages granted on

September 11, 2024; judgment entered on

September 11, 2024; motion for new trial on

damages denied on November 13, 2024).

• Trinseo Eur. GmbH v. Kellogg Brown & Root,

L.L.C., et al., No. 24-20460 (5th Cir.) (judgment

affirmed on January 21, 2026; petitions for

rehearing and rehearing en banc denied on

March 4, 2026).

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

PARTIES TO THE PROCEEDINGS AND

CORPORATE DISCLOSURE STATEMENT ...

STATEMENT OF RELATED PROCEEDINGS .

iii

TABLE OF AUTHORITIES ................................

vii

OPINIONS BELOW ............................................

JURISDICTION ..................................................

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ......

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

A. Factual Background ............................

B. Procedural Background .......................

REASONS FOR GRANTING THE PETITION..

II.

The Courts of Appeals Are Divided

Over Whether Trade Secret Damages

Must Be Apportioned on a Per-TradeSecret Basis ...............................................

The Decision Below Is Wrong On the

Merits and Raises Issues of Exceptional

Importance ................................................

A. A Strict-Apportionment Approach to

Trade Secret Damages Is Unworkable ..

(v)

TABLE OF CONTENTS—Continued

Page

B. The Decision Below Invites Aberrational Intrusions on the Province of

the Jury ................................................

CONCLUSION ....................................................

APPENDIX

vii

TABLE OF AUTHORITIES

CASES

Page(s)

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ...................................

Becton, Dickinson & Co. v.

Tyco Healthcare Grp., LP,

616 F.3d 1249 (Fed. Cir. 2010) ................. 32-33

Bigelow v. RKO Radio Pictures,

327 U.S. 251 (1946) ...................................

Bilski v. Kappos,

561 U.S. 593 (2010) ...................................

Bio-Rad Labs, Inc. v. 10X Geronics Inc.,

967 F.3d 1353 (Fed. Cir. 2020) .................

Cartel Asset Mgmt. v. Ocwen Fin. Corp.,

249 Fed. App’x 63 (10th Cir. 2007)...........

Caudill Seed & Warehouse Co. v.

Jarrow Formulas, Inc.,

53 F.4th 368 (6th Cir. 2022) ..................... 18, 21

Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 589 (1993)........................... 9, 25

Dimick v. Schiedt,

293 U.S. 474 (1935) ...................................

Dunn v. United States,

284 U.S. 390 (1932) ...................................

Eastman Kodak Co. of NY v.

Southern Photo Materials Co.,

273 U.S. 359 (1927) ...................................

EchoSpan, Inc. v. Medallia, Inc.,

No. 22-CV-01732-NC, 2024 WL 3431337

(N.D. Cal. July 2, 2024) ............................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

EchoSpan, Inc. v. Medallia, Inc.,

No. 24-4751, 2025 WL 3046753

(9th Cir. Oct. 31, 2025) .............................

19, 21, 25, 30

18,

Fairmount Glass Works v.

Cub Fork Coal Co.,

287 U.S. 474 (1933) ...................................

Finesse Wireless LLC v.

AT&T Mobility LLC,

No. 25-953 (filed Feb. 6, 2026)..................

Finjan, Inc. v. Blue Coat Systems, Inc.,

879 F.3d 1299 (Fed. Cir. 2018) .................

Lucent Tech., Inc. v. Gateway, Inc.,

580 F.3d 1301 (Fed. Cir. 2009) .................

Markman v. Westview Instruments, Inc.,

52 F.3d 967 (Fed. Cir. 1995) .....................

McElrath v. Georgia,

601 U.S. 87 (2024) .....................................

Mid-Michigan Computer Systems, Inc. v.

Marc Glassman, Inc.,

416 F.3d 505 (6th Cir. 2005) .....................

Motorola Sols., Inc. v. Hytera Commc’ns

Corp., 108 F.4th 458 (7th Cir. 2024) ........

O2 Micro Int’l Ltd. v.

Monolithic Power Sys., Inc.,

399 F. Supp. 2d 1064 (N.D. Cal. 2005),

aff’d per curiam, 221 Fed. App’x 996

(Fed. Cir. 2007) ................................... 17, 18, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Pavo Sols. LLC v. Kingston Tech. Co.,

35 F.4th 1367 (Fed Cir. 2022) ..................

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) ................................... 19, 31

Russo v. Ballard Med. Prods.,

550 F.3d 1004 (10th Cir. 2008) ................. 20, 29

Sabre GLBL, Inc. v. Shan,

779 Fed. App’x 843 (3d Cir. 2019) ............ 20, 21

Sea-Land Servs., Inc. v. Gaudet,

414 U.S. 573 (1974) ............................... 2, 20, 29

Story Parchment Co. v. Paterson

Parchment Paper Co.,

282 U.S. 555 (1931) ................................... 20, 29

Syntel Sterling Best Shores Mauritius Ltd.

v. TriZetto Grp., Inc.,

No. 15 Civ. 211, 2024 WL 1116090

(S.D.N.Y. Mar. 13, 2024) ..........................

Syntel Sterling Best Shores Mauritius Ltd.

v. TriZetto Grp.,

No. 15 Civ. 211, 2024 WL 4553894

(S.D.N.Y. Oct. 23, 2024) ............................

Texas Advanced Optoelectronic Solutions,

Inc. v. Renesas Electronics America, Inc.,

895 F.3d 1304 (Fed. Cir. 2018) ..... 17, 18, 20, 21

Trinseo Eur. GmbH v.

Kellogg Brown & Root, L.L.C.,

165 F.4th 399 (5th Cir. Jan. 21,

2026) ...... 1, 5-7, 10-12, 15, 17, 21, 23, 30, 33, 34

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Powell,

469 U.S. 57 (1984) .....................................

University Computing Co. v. LykesYoungstown Corp.,

504 F.2d 518 (5th Cir. 1974) ..................... 3, 25

Versata Software, LLC v. Ford Motor Co.,

No. 2024-1140, 2026 WL 1449851

(Fed. Cir. May 22, 2026) ...........................

CONSTITUTION

U.S. Const. amend. VII ............ 1, 5, 14, 22, 28, 32

STATUTES

28 U.S.C. § 1254(l) ........................................

Defend Trade Secrets Act, 18 U.S.C.

§ 1836(b)(3)(B) ...........................................

2, 8

18 U.S.C. § 1836(b)(3)(B)(i)(II) ..................... 4, 23

18 U.S.C. § 1836(b)(3)(B)(ii) ......................... 4, 23

RULES

Fed. R. Civ. P. 50(a)......................................

Fed. R. Civ. P. 50(b)......................................

LEGISLATIVE MATERIALS

162 Cong. Rec. H2032 (daily ed. April 27,

2016) ..........................................................

H.R. Rep. No. 114-529, 114th Cong., 2d

Sess. (2016) ...............................................

TABLE OF AUTHORITIES—Continued

Page(s)

S. Rep. No. 114-220, 114th Cong., 2d Sess.

(2016) .........................................................

OTHER AUTHORITIES

Callmann on Unfair Competition,

Trademarks & Monopolies (4th ed.) ........

Ivan Moreno, Trade Secret Filings Hit

Record High in 2025, Report Finds,

Law360 (Jan. 28, 2026), https://www.law

360.com/articles/2433237/trade-secret-fil

ings-hit-record-high-in-2025-report-finds ....

Jeffrey Mordaunt, Neil Eisgruber & Joshua

Swedlow, Trends in Trade Secret Litigation Report 2020, Stout, LLC (2020) ........

John Marsh, Three More Mammoth Trade

Secret Verdicts Fail to Survive Appeal,

Bailey Cavalieri: The Trade Secret

Litigator (Feb. 10, 2026), https://www.tra

desecretlitigator.com/2026/02/three-moremammoth-trad e-secret-verdicts-fail-tosurvive-appeal-the-trade-secret-litigatorreads-the-tea-leaves-part-i/ ......................

Kevin McElroy & Lindsey Fisher, Trends in

Trade Secret Litigation Report Volume 3,

Stout, LLC (2024) .....................................

Lex Machina, Trade Secret Litigation Report

2026 (LexisNexis 2026), https://law.lex

machina.com/help/published-reports .......

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Melvin F. Jager, 2 Trade Secrets Law (Oct.

2021) ..........................................................

Unif. Trade Secrets Act, Prefatory Note

(Unif. L. Comm’n, amended 1985) ...........

PETITION FOR A WRIT OF CERTIORARI

Trinseo Europe GmbH (“Trinseo”) respectfully

petitions this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Fifth Circuit in this case.

OPINIONS BELOW

The Fifth Circuit’s opinion (App.1-41) is reported at

165 F.4th 399. The district court’s opinion granting

judgment as a matter of law on damages to

Respondents and vacating the jury’s damages award

(App.43-104) is unreported.

JURISDICTION

The Fifth Circuit entered its judgment on January

21, 2026 (App.1), and denied rehearing and rehearing

en banc on March 4, 2026 (App.42). This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Seventh Amendment to the United States

Constitution provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise reexamined in any Court of the United States,

than according to the rules of the common

law.

The Defend Trade Secrets Act, 18 U.S.C. § 1836(b)(3)(B),

provides that “[i]n a civil action brought under this

subsection with respect to misappropriation of a trade

secret, a court may … award—

(i) (I) damages for actual loss caused by the

misappropriation of the trade secret; and

(II) damages for any unjust enrichment

caused by the misappropriation of the trade

secret that is not addressed in computing

damages for actual loss; or

(ii) in lieu of damages measured by any

other methods, damages caused by the

misappropriation measured by imposition of

liability for a reasonable royalty for the

misappropriator’s unauthorized disclosure or

use of the trade secret.”

INTRODUCTION

After years of litigation and a nearly three-week

trial, a unanimous jury held Respondents liable for

stealing four Trinseo trade secrets and awarded

Trinseo approximately $77 million in damages. The

district court found abundant evidence of liability, but

no evidentiary basis for a remedy. The upshot of that

ruling was that a proven theft of multiple trade secrets

led to not a single dollar in damages.

Under this Court’s settled damages principles, juries

need not prove damages with “mathematical precision.” Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573,

590 (1974). For nearly 50 years, moreover, a “flexible

and imaginative approach” has defined courts’ treatment of trade secret damages—flexibility grounded in

the recognition that trade-secret owners who fall

victim to theft should not be left without a remedy

simply because of the difficulties in computing the

value of stolen knowledge. University Computing

Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 538-39

(5th Cir. 1974). Those difficulties are at their apex

where, as here, one integrated product implicates

multiple trade secrets whose per-trade-secret values

cannot be neatly parsed.

The Fifth Circuit below endorsed an approach to

trade secret damages that is the antithesis of flexible.

Trinseo alleged the theft of 10 trade secrets, all

relating to one system—its best-in-the-industry polycarbonate (“PC”) manufacturing technology. It was

undisputed at trial that throughout history, PC

technology has been licensed, sold, and valued as

“an entire package,” not by its components à la carte.

App.86-87. The jury found liability on some but not all

of Trinseo’s alleged trade secrets—four of the 10—and

awarded some but not all of Trinseo’s requested

reasonable royalty and unjust enrichment damages.

That jury, moreover, had been specifically instructed

that any damages it awarded should “reflect the value

attributable to the misappropriated technology, and

no more.” C.A.App.7556. Nonetheless, the district

court ruled, and the Fifth Circuit affirmed, that the

$77 million award amounted to a “guessing game”

because Trinseo had not apportioned its damages on a

per-trade-secret basis. App.64. That is, they required

a “strict apportionment” of damages, App.52-53, as the

evidentiary baseline to sustain any award. Because

Trinseo’s damages estimates pertained to the entire

package of PC technology, rather than individual

valuations of the four trade secrets, the award was

deemed infirm as a matter of law.

That “strict apportionment” overlay does not derive

from the text of the Defend Trade Secrets Act

(“DTSA”), which, to the contrary, expressly contemplates both reasonable royalty and unjust enrichment

damages for misappropriation.

See 18 U.S.C.

§§ 1836(b)(3)(B)(i)(II), (ii). Instead, the Fifth Circuit

derived the approach from patent-law principles and

decisions of the Federal Circuit. Indeed, the Fifth

Circuit deepened a circuit split by aligning itself with

the Federal Circuit, which has repeatedly vacated jury

awards where the trial evidence attributed unapportioned value to a greater number of alleged trade

secrets than were ultimately left standing. The Fifth

Circuit expressly distanced itself from the Sixth and

Ninth Circuits, both of which have upheld jury awards

against similar apportionment critiques and taken a

more flexible, deferential approach to their evidentiary

bases. It also set itself apart from the Third Circuit,

which has declined to recognize any categorical

requirement of per-trade-secret damages apportionment. All these lower-court divisions are already wellventilated. They have outsized commercial significance,

given the predominance of trade secret claims in the

Fifth and Ninth Circuits. And they are producing

drastically different outcomes on near-equivalent

facts—alternately precipitating the wholesale vacatur

or reinstatement of jury awards—underscoring the

need for this Court’s review.

Certiorari is all the more warranted because the

strict-apportionment approach is neither workable nor

just. Whatever the extent of the practice in patent

cases, where each patent is described in a discrete

patent well in advance of trial, it is a manifestly

“imperfect overlay” in trade secrets cases. App.86. The

line between trade-secreted and non-trade-secreted

information is a jury question, and a trade-secret

owner cannot know until the verdict what secrets

the jury will find. That means that where, as here,

individually valuating trade secrets is not possible, the

strict-apportionment approach boxes trade-secret

owners into an “all-or-nothing” predicament: They

need the jury to find all their alleged trade secrets to

recover anything, or they recover nothing. App.33.

The only way to avoid that predicament would be to

concoct per-trade-secret valuations out of thin air, or

preemptively estimate damages for permutations of

secrets in the hopes that one might correspond with

what the jury ultimately finds. This makes no

remedial sense. It produces arbitrary windfalls for

proven thieves and renders the survival of a jury

award a crapshoot.

More fundamentally, many jury awards will not

survive under the strict-apportionment approach

endorsed below. Engaging in fine-grained parsing of

the correspondence between the jury’s award and the

underlying evidence deviates from how we treat the

judgment of the jury in every other context, and runs

roughshod over bedrock principles of deference to a

jury’s reasonable inferences and damages approximations. The Seventh Amendment does not countenance

plucking out trade secret jury awards for this uniquely

searching scrutiny. This Court should grant the

petition and reverse.

STATEMENT OF THE CASE

A. Factual Background

Petitioner Trinseo owns trade-secreted intellectual

property, including drawings, designs, and specifications, pertaining to its “best in the industry”

manufacturing process for polycarbonate—a tough,

synthetic thermoplastic used to create everyday items

including eyeglass lenses, light fixtures, and medical

devices. App.2-3, 44.

The Dow Chemical Company (“Dow”), the prior

owner of Trinseo’s PC technology, first began developing its novel manufacturing process in the 1950s,

investing hundreds of millions of dollars to refine

the process over 15 years. C.A.App.9587:23-9588:17,

9611:22-9613:20, 10667:6-22, 13753:3-8. The Dowdeveloped process has two phases. The first is a “wet”

chemical processing phase that requires five

sequential stages to yield a distinctive, high-quality

virgin PC “flake”—distinct from the PC powder

produced by competitors. The second is a “dry”

chemical compounding phase that results in extruded

PC pellets that manufacturers further incorporate

into their products. App.2-3.

Dow opened its inaugural PC manufacturing plant

in 1985 in Freeport, Texas. App.3. It later licensed its

PC technology to joint ventures, including one with LG

Chemical to construct a state-of-the-art facility in

South Korea—the “LG Plant”—widely regarded as the

world’s finest. The LG Plant’s PC manufacturing

trains produced over $160 million in licensing fees for

Dow and later Trinseo. C.A.App.11567:14-11568:9.

In 2010, Dow sold its PC business, including its

intellectual property, to an entity called Styron, later

renamed Trinseo. App.3.

In 2013, Respondent KBR approached Trinseo about

licensing its PC technology. App.5. KBR sought to

offer Chinese clients a licensing package to design,

build, and operate PC manufacturing plants, but

lacked the know-how and time to develop a package

on its own. C.A.App.11070:11-21, 11102:21-11103:14.

Trinseo, however, discontinued talks in early 2014,

after it decided to cease wholesale licensing to avoid

injecting more capacity into the market and driving

down long-term profitability. App.6; C.A.App.11074:413.

Undeterred, KBR in 2016 learned of Stephen

Harper and his so-called “Tech Team” of fellow retired

Dow employees. App.3, 6. Unbeknownst to Trinseo, a

member of Harper’s team had stolen a trove of

Dow materials regarding the LG Plant. App.4;

C.A.App.10710:9-11. Also unbeknownst to Trinseo,

Harper’s team had, from 2012 to 2016, used stolen

drawings for the LG Plant design—marked “DowConfidential”—to help a Chinese company design its

first PC plant. App.4-5; C.A.App.10651:20-10652:21.

As Harper acknowledged, “everyone wanted LG.”

C.A.App.10690:11-22. Harper and his team reaped

more than $5 million in “consulting” fees.

C.A.App.11833:9-11834:24.

Needing help “to successfully deliver a working

plant,” KBR partnered with Harper and his team for

assistance in developing what KBR deemed its

“PCMAX” licensing package. App.6-7; C.A.App.14465.

KBR paid $1.325 million for Harper’s team to prepare

a PC plant preliminary design package that Harper

admitted was based on the stolen drawings, brazenly

sending pictures of those drawings to KBR to prove he

was using the “real thing.” App.6-7; C.A.App.10722:812, 10881:15-24.

KBR, meanwhile, traded on Trinseo’s reputation,

marketing its PCMAX package as a “Dow-type” PC

technology and describing it as “related to Dow/

Trinseo PC technology” that “Dow/Trinseo implemented” at the LG Plant and elsewhere. App.6-7;

C.A.App.14476, 49975. Those efforts were successful.

KBR sold two PCMAX packages to two Chinese

companies—Cangzhou in 2017 and Pingmei in 2018—

earning nearly $59 million. C.A.App.50158, 14104:1414106:10.

B. Procedural Background

1. Congress enacted the DTSA in 2016 to

strengthen federal protection for trade secrets, which

it recognized as among “any company’s most valuable

property.” H.R. Rep. No. 114-529, 114th Cong., 2d Sess.

2 (2016). The DTSA’s central purpose was to establish

“a single, national standard for trade secret

misappropriation with clear rules and predictability

for everyone involved,” H.R. Rep. No. 114-529, at 6; S.

Rep. No. 114-220, 114th Cong., 2d Sess. 14 (2016), and

foster “uniformity among the States,” 162 Cong. Rec.

H2032 (daily ed. April 27, 2016).

The DTSA drew largely from the Uniform Trade

Secrets Act (“UTSA”), a model statute for states

created in 1979 to “codif[y] the basic principles of

common law trade secret protection, preserving its

essential distinctions from patent law.” Unif. Trade

Secrets Act, Prefatory Note, at 2 (Unif. L. Comm’n,

amended 1985). Chief among those distinctions was

the flexible approach to damages for misappropriation.

The DTSA preserves multiple remedial options,

permitting a trade-secret owner to recover not just

“damages for actual loss caused” by misappropriation,

but also “a reasonable royalty for the misappropriator’s unauthorized disclosure or use” of the secret and

damages for “unjust enrichment caused by the

misappropriation” that is not addressed in the actual

loss computation. 18 U.S.C. §§ 1836(b)(3)(B).

2. In February 2020, Trinseo sued Harper and

his consulting entities (“Harper Respondents”) in the

Southern District of Texas, alleging misappropriation

under the DTSA and related claims. Trinseo later

added Respondent KBR.

Before trial, KBR moved under Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 589 (1993), to

exclude Trinseo’s damages expert, Thomas Pastore,

arguing that Pastore was required to but did not

apportion damages per trade secret. The district court

rejected the motion, paving the way for the jury to hear

from Pastore. C.A.App.6140-41 n.4.

A three-week trial commenced in January 2024.

Trinseo alleged misappropriation of 10 trade secrets

related to its PC technology, and sought reasonable

royalty and unjust enrichment damages. Pastore

testified to approximately $80 million in reasonable

royalty damages from KBR, and testified that KBR

and the Harper Respondents were unjustly enriched

by approximately $44.92 million and $5.53 million,

respectively.

C.A.App.11826:6-11827:5, 11831:2011834:24; see also Lucent Tech., Inc. v. Gateway, Inc.,

580 F.3d 1301, 1324 (Fed. Cir. 2009) (reasonable

royalties reflect what defendant wrongfully obtained,

based on the supposed result “had [the plaintiff and

defendant] successfully negotiated an agreement just

before infringement began”); Motorola Sols., Inc. v.

Hytera Commc’ns Corp., 108 F.4th 458, 471, 490 (7th

Cir. 2024) (unjust enrichment reflects a thief ’s illegal

gain measured by “defendant’s profits caused by the

misappropriation” of the secret).

After Trinseo rested, Respondents moved for

judgment as a matter of law (“JMOL”) pursuant to

Federal Rule of Civil Procedure 50(a), again contending that Trinseo was required to but did not apportion

damages per trade secret. C.A.App.12679:23-12680:7,

7340, 7383-84, 7424-29. The court denied the motion.

C.A.App.12685:24-25.

Respondents then presented witnesses, including

their own damages expert, David Leathers. Leathers

criticized Pastore’s computations and estimated reasonable royalty damages for all the alleged secrets

to fall instead between $3 and $4.3 million.

C.A.App.13683:14-16.

Agreed-upon jury instructions prescribed that any

reasonable royalties “must reflect the value attributable to the misappropriated technology, and no more,”

and that “[w]hen determining a Defendant’s net

profits for unjust enrichment, you should consider only

profits caused by trade secrets misappropriated by

the Defendant.” C.A.App.7556-57 (emphases added).

Jurors were advised that damages “must be based

on evidence and not on speculation or guesswork”

and that the jury was “to determine an amount that

will fairly compensate each party for the harm it

has proven.” C.A.App.7525-26. Although KBR had

proposed an instruction that damages be awarded on

a per-trade-secret basis—contending yet again that

Trinseo was required to but did not apportion damages

per trade secret—the court “overruled” the objection.

C.A.App.6484-87, 7557-58, 13392-93.

After nearly three days of deliberations, the jury

returned a verdict. The jury found four of the 10

alleged secrets, and found all four had been

misappropriated.1 App.9, 45; C.A.App.7546, 7549-52.

The jury awarded Trinseo approximately $77 million

in damages: $50 million in reasonable royalty

The four trade secrets were the (i) process control strategy

and concepts and control algorithms; (ii) phosgene reactor design

and associate pressure vessel containment; (iii) continuous plug

flow oligomerization reactor inside pressure vessel containment

(with static mixer design); and (iv) steam devolatization process.

All relate to the “wet side” of the PC manufacturing process.

damages from KBR, $21.21 million in unjust enrichment damages from KBR, and $5.48 million in unjust

enrichment damages from the Harper Respondents—

some but not all of Pastore’s estimates of $80 million,

$44.92 million, and $5.54 million, respectively. App.9,

45; C.A.App.7557-58.

Nearly eight months later, on September 11, 2024,

the district court granted Respondents’ post-trial

JMOL motion on damages pursuant to Rule 50(b).

App.43-44. In granting JMOL on this go-round,

notwithstanding its prior decisions to allow the matter

to go to the jury, the district court emphasized that the

jury’s liability findings were “clearly supported” by

“an abundance of evidence.” App.50. It entered a

permanent injunction against any future use of

the trade secrets, finding that “there was certainly

evidence that [Trinseo’s] trade secrets had value” and

that Respondents had “caused … irreparable injury”

to Trinseo. App.100, 105. On damages, the district

court acknowledged that the Fifth Circuit had not yet

“encountered a case involving apportionment in trade

secret cases.” App.58. Nonetheless, it was persuaded

by the “policies articulated by … Federal Circuit cases”

to apply patent-law apportionment principles to the

trade-secrets context, and interpreted them for the

first time to specifically require “evidence that apportions value per trade secret” or a methodology for the

jury to do so. App.58-60, 64, 88. It thus vacated the

$77 million award as “speculative and unsupported”—

ignoring evidence that supported that figure, see infra

n.3—and entered a take-nothing judgment. App.88.

Trinseo moved for a new trial on damages in light of

the ruling, which the district court summarily denied

on November 13, 2024. C.A.App.8422.

3. The Fifth Circuit affirmed.

It similarly

acknowledged that it had “never explicitly adopted

patent law’s apportionment principles in the trade

secret context.” App.13. It too proceeded to import

those principles and interpreted them for the first

time to require a trade-secret owner to “individually

valuate each alleged trade secret” (or the specific juryfound group of secrets) or “provide a methodology for

the jury” to do so.” App.18 n.10. It too divined this

approach from “persuasive” Federal Circuit decisions

vacating jury awards upon purported failures to

apportion damages per trade secret, and professed

itself unmoved by contrary decisions of the Sixth and

Ninth Circuits. App.15. The Fifth Circuit sought to

minimize the district court’s own characterization of

its approach as “strict apportionment,” dismissing the

“passing use of the term” as having been employed just

“twice.” App.17-18; but see App.52 (district court

noting, then refuting, contention that “strict apportionment is not required”); App.53 (noting, then

refuting, questions as to the “applicability” of “strict

apportionment” to trade secrets); App.57, 64, 88-89

(describing its conception of apportionment as “strictly

mandated,” “restrictive,” and “harsh”). But it squarely

endorsed the same strict approach: Absent the

aforementioned apportionment, any damages award

amounts to mere “speculation” with “no basis” as a

matter of law. App.18, 23.

REASONS FOR GRANTING THE PETITION

The decision below arises out of a post-trial, postverdict JMOL ruling that vitiated the jury’s damages

determination wholesale, presenting a uniquely clean

vehicle to resolve an important issue of law that has

divided lower courts. An exhaustive trial produced

“an abundance of evidence” of theft. App.50. Clear

statutory language entitled Trinseo to reasonable

royalty and unjust enrichment damages, both of which

the jury awarded. And agreed-upon jury instructions

limited the jury’s award to only those damages that

reflected “the value attributable to the misappropriated technology, and no more.” C.A.App.7556. The

jury did its part. Yet the district court, which disputed

none of these points, zeroed out the jury’s approximately $77 million award based on Trinseo’s purported failure to apportion damages at trial.

The district court based its ruling on a strictapportionment approach drawn from patent law. At a

high level, that principle means that any damages

awarded should reflect the value attributable to the

misappropriated technology—just as the jury here was

instructed. But the courts below went substantially

further, divining an inflexible command to present a

showing or methodology of per-trade-secret damages.

They held that, absent such a showing or methodology,

any damages award is bereft of a legally sufficient

basis whenever the jury, as here, finds some but not

all of the alleged secrets. By this token, Trinseo

was out of luck because the jury ultimately found

four misappropriated trade secrets while Trinseo’s

damages model included more than four.

Whatever the merits of strict apportionment in the

patent context—where every patent is described,

formally qualified, and known well before trial—it

does not translate to the trade-secrets context, where

what is and is not a trade secret is typically

determined by the jury. Making jury awards rise

or fall on the happenstance of whether damages

valuations at trial corresponded to the precise number

and permutation of trade secrets ultimately found by

the jury after trial makes little sense. It is all the more

confounding where, as here, multiple secrets often

relate to a single, integrated system whose value

cannot be apportioned per trade secret. And it defies

the commands of the Seventh Amendment, ratcheting

up the “basis” ordinarily required to sustain a jury’s

reasonable inferences and damages approximations,

to which courts have long deferred. This Court should

rectify the arbitrary and aberrational approach

adopted below before it metastasizes further.

I. The Courts of Appeals Are Divided Over

Whether Trade Secret Damages Must Be

Apportioned on a Per-Trade-Secret Basis

The decision below expands and sharpens a circuit

split over the apportionment of damages in cases

involving multiple trade secrets. That well-documented

disarray reflects differing approaches to examining

jury damages awards in trade-secret cases nationwide,

including in districts with some of the heaviest tradesecret dockets. Those differing approaches, moreover,

can be determinative of the very viability of jury

awards for trade-secret owners who rightfully take

trade secret claims to trial and win, yet whose

damages valuations at trial may not have neatly

corresponded to the trade secrets ultimately found by

the jury.

1. The Fifth Circuit below endorsed the strictest

view of apportionment on the map. Both the Fifth

Circuit and district court squarely imported patent-

law apportionment principles to require owners of

trade secrets to “individually valuate each alleged

trade secret” or “provide a methodology for the jury

to do so.” App.18 n.10; accord App.64 (requiring

“evidence that apportions value per trade secret” or a

“methodology” for the jury to “do so itself ”). By this

view, whenever a jury finds liability on some but not

all the alleged trade secrets, a damages award can only

be sustained upon evidence that “allocate[s] value per

trade secret” and thereby allocates value to the

particular group of jury-found secrets. App.83; see also

App.84 n.24 (faulting Trinseo’s expert for not parsing

out reasonable royalty damages based on “individual

trade secrets”); App.90 (requiring “evidence apportioning damages per trade secret”); App.100 (“Trinseo

failed to pinpoint that value on a per-secret basis”).

Absent a per-trade-secret showing or methodology, the

Fifth Circuit reasoned, the jury is left to engage in

“speculation” and any damages award would have “no

basis” as a matter of law. App.18, 23; accord App.64,

83 (“the jury is left to play a guessing game” and any

award would have “no evidentiary basis”).

The Fifth Circuit quibbled with labeling this

approach “strict apportionment,” brushing off the

district court’s “passing use” of that very label. App.18.

The district court, however, meant what it said. The

jury here found liability on four of the 10 trade secrets

Trinseo alleged, and awarded damages of approximately $77 million of the $130 million Trinseo

requested. Yet the district court jettisoned that award

wholesale, deeming this “harsh consequence” compelled as a matter of law. App.88. It maintained that

Trinseo was required to, but did not, “place a dollar

value to each individually alleged trade secret” and

each secret’s “percentage of the total value of the

PC package.” App.51. It categorically required such

apportionment even as it conceded that it was all but

impossible here, where the trade secrets were never

sold individually. App.86. It then concluded that

there was no legally sufficient evidentiary basis, even

drawing reasonable inferences in favor of the verdict,

that could sustain the damages award.

The district court below subjected the jury’s chosen

award to a near-mathematical level of scrutiny. When

Trinseo claimed that the jury did apportion damages

by awarding some but not all the estimated damages,

accounting for the reduction from 10 alleged secrets to

four, the district court disagreed. The district court

reasoned that, even if so, there was no “convincing

explanation for why the jury reduced liability for the

claimed trade secrets by 60% (from 10 to 4 secrets) yet

reduced the requested damages figure by only 37.5%,”

not “by 60%.” App.53-54 & n.8 (emphases added). In

effect, it deemed the apportionment insufficiently

proportional by parsing percentage deltas.

Nor did it stop there: The district court further

opined that even if a jury were to “award[] 1/3 of the

damage figure after finding liability on only one out of

three alleged trade secrets,” this “might be fine if there

were testimony that each trade secret was equally

valuable but would be unsupportable absent such

evidence.” App.64-65 (emphasis added). By the district

court’s logic, even a proportional reduction might not

pass muster unless the evidence attributed equal

value per trade secret. Vanishingly few jury awards

could survive the exacting level of scrutiny applied by

the district court and affirmed by the Fifth Circuit.

2. The Fifth Circuit expressly aligned itself in this

regard with the Federal Circuit. In decisions that the

Fifth Circuit found “persuasive,” the Federal Circuit

has “vacated damages awarded by juries due to failure

to apportion in trade secret cases.” App.13, 15. In

Texas Advanced Optoelectronic Solutions, Inc. v.

Renesas Electronics America, Inc., 895 F.3d 1304, 1310

(Fed. Cir. 2018) (“TAOS”), for instance, a jury awarded

damages for three misappropriated trade secrets, but

the Federal Circuit affirmed only one of the three

liability findings. The Federal Circuit noted that the

plaintiff ’s expert had “assigned all profits to the

misappropriation of all [three] trade secrets” and “did

not explain which of the trade secrets contributed to

what amount of profit to be disgorged” or “distinguish

among [the three] grounds.” Id. at 1317. “On this

record,” the Federal Circuit reasoned, there was “no

basis” to conclude that the sole remaining trade secret

“support[ed] the entire award.” Id.

Similarly, in O2 Micro International Ltd. v.

Monolithic Power Systems, Inc., 221 Fed. App’x 996

(Fed. Cir. 2007), the Federal Circuit summarily

affirmed the district court’s vacatur of a jury’s

damages award and JMOL ruling for the defendant.

The plaintiff ’s expert had offered an unapportioned

unjust-enrichment figure for 11 asserted secrets. The

jury found five secrets to have been misappropriated

but awarded unjust enrichment damages for just one,

so-called “Trade Secret 1.” O2 Micro Int’l Ltd. v.

Monolithic Power Sys., Inc., 399 F. Supp. 2d 1064, 1076

(N.D. Cal. 2005), aff’d per curiam, 221 Fed. App’x 996

(Fed. Cir. 2007). The district court vacated the award

for lack of damages evidence specific to Trade Secret 1.

It acknowledged testimony describing Trade Secret 1

as the “heart” of the technology and, in the context

of all 11 alleged secrets, as driving 75-90% of the

“importance.” Id. at 1077. But it dismissed such

testimony as “fail[ing] to provide the necessary reasonable basis for the jury to apportion unjust enrichment damages.” Id. As the district court concluded,

and the Federal Circuit agreed, the evidence as to

Trade Secret 1 did not sufficiently justify “award[ing]

seventy-five percent of the [requested] amount of unjust

enrichment damages for all trade secrets” to Trade

Secret 1 alone. Id. at 1076-77 (emphasis added).

3. By contrast, other circuits have adopted a more

flexible, deferential approach to damages awards in

cases similarly involving multiple trade secrets and

distanced themselves from TAOS and O2 Micro. The

Sixth Circuit in Caudill Seed & Warehouse Co. v.

Jarrow Formulas, Inc., 53 F.4th 368, 375, 377, 388-90

(6th Cir. 2022), declined to disturb an award after the

jury found misappropriation on four of six alleged

trade secrets. Although the plaintiff ’s damages model

assumed misappropriation of all six alleged secrets,

the Sixth Circuit declined to overturn the award as a

matter of law. Because the jury had downwardadjusted from the expert’s unapportioned estimate,

the Sixth Circuit saw “no mismatch between the

expert’s testimony and the ultimate damages award.”

Id. at 393. Emphasizing its “broader view” of the

“evidence that can support a trade-secrets damages

award,” the Sixth Circuit underscored the premium on

“flexib[ility].” Id. at 389-90; see also id. at 390 (refusing

to “import … rigid reasoning into the malleable

context of trade secrets”). The Sixth Circuit also

highlighted testimony about one trade secret that

particularly drove Caudill’s research and development

expenses—testimony that gave the jury more “options”

in valuating that one secret and in reaching its award.

Id. at 389-90.

Meanwhile, the Ninth Circuit in EchoSpan, Inc. v.

Medallia, Inc., reversed and reinstated a jury’s award

after it was initially vacated for a purported failure

to apportion per-trade-secret damages. No. 24-4751,

2025 WL 3046753, at *1 (9th Cir. Oct. 31, 2025).

EchoSpan went to trial on nine alleged trade secrets

pertaining to one integrated product, and requested

unjust enrichment damages totaling $23.4 million. Id.

at *2. The jury found liability on one of the nine, and

awarded $11.7 million—roughly half the requested

award. The district court then granted JMOL to

Medallia, finding that there was no evidence permitting the jury to apportion value to the one secret and

excise the value of the eight non-secrets.

Respondents below had invoked EchoSpan’s district

court ruling as presenting a case “exactly like”

Trinseo’s, C.A.Dkt.134 at 30, but abandoned the

analogy after the Ninth Circuit reversed that very

ruling—reinstating the award the district court had

wrongly vacated. The Ninth Circuit held that the

district court had “erred in assuming the jury did

not apportion.” EchoSpan, 2025 WL 3046753, at *1.

Emphasizing that courts must draw all reasonable

inferences in favor of the verdict and that awards need

not be mathematically precise, the Ninth Circuit held

that the $11.7 million award could be viewed as the

jury’s effort “to approximate the share of total unjust

enrichment attributable to the misappropriat[ed]”

secret. Id. at *2. The record, moreover, included total

unjust-enrichment evidence, testimony about secrets

that were the main drivers of value, and explanations

of how the alleged secrets contributed to and interacted within the product. Id. As the Ninth Circuit

explained, “the drawing of legitimate inferences from

the facts are jury functions, not those of a judge,” so

the jury “did not have to either completely discount or

completely credit” that testimony; it could reasonably

have come out in between. Id. (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000)) (emphases added).

The Third Circuit has also rejected across-the-board

per-trade-secret apportionment. In Sabre GLBL, Inc.

v. Shan, 779 Fed. App’x 843 (3d Cir. 2019), the Third

Circuit dismissed the argument that trade-secret owners

must “prove the amount of damages attributable to

each trade secret … allegedly misappropriated,” and

declined to read TAOS to establish otherwise. Id. at 852.

The cases on the more flexible side of the split arise

against the backdrop of foundational principles of

deference to jury damages determinations. As this

Court has made clear, juries need not prove damages

with “mathematical precision” and “must be allowed a

fair latitude to make reasonable approximations.”

Sea-Land Servs., 414 U.S. at 590; Story Parchment Co.

v. Paterson Parchment Paper Co., 282 U.S. 555, 563

(1931) (“[I]t will be enough if the evidence show the

extent of the damages as a matter of just and

reasonable inference, although the result be only

approximate.”). Courts routinely hold in trade-secret

cases that damages approximately “within the range

permitted” by the evidence—though they may not

precisely accord with any single estimate or piece of

testimony—fall within the jury’s province. Russo v.

Ballard Med. Prods., 550 F.3d 1004, 1018 (10th Cir.

2008) (Gorsuch, J.); see also id. (juries often “f[i]nd

the truth to lie somewhere in between … extremes

suggested by the evidence”). Any uncertainty going “to

the extent of the damage,” not “the fact of damage,”

should not preclude an award, lest this approach “deny

all relief to the injured person, and thereby relieve the

wrongdoer.” Story Parchment, 282 U.S. at 562-63

(emphases added); accord Melvin F. Jager, 2 Trade

Secrets Law § 7:20 & n.68 (Oct. 2021) (“Where the fact

is certain, the uncertainty as to the amount will not

prevent damages from being assessed.”).

What is clear is that the same cadre of cases is

being consistently marshaled for and against strict

apportionment. E.g., App.13-22 (analogizing to TAOS

and O2 Micro; distinguishing Caudill and EchoSpan);

Caudill, 53 F.4th at 389 (distinguishing TAOS and O2

Micro); EchoSpan, 2025 WL 3046753, at *2 (distinguishing O2 Micro); Sabre GLBL, 779 Fed. App’x at

852 (distinguishing TAOS); see also EchoSpan, Inc.

v. Medallia, Inc., No. 22-CV-01732-NC, 2024 WL

3431337, at *8-9 (N.D. Cal. July 2, 2024) (distinguishing Caudill; analogizing to O2 Micro). The lines of

demarcation are widely recognized. Consequently,

juries can expect verdicts to be heeded in some

districts and nullified in others, with courts vacillating

from broad deference to near-mathematical scrutiny of

their evidentiary bases. With near-equivalent facts

producing drastically different outcomes based on

nothing more than the forum of suit, the resulting

uncertainty breeds gamesmanship and—as this case

demonstrates—profoundly arbitrary and unjust

results. See infra Part II.

The circuits implicated, moreover, have outsized

commercial significance, given the predominance of

trade secret claims in the Fifth and Ninth Circuits.

According to one study of trade secret litigation

between 1990 and 2019, “[f]ederal district courts in

Texas alone were responsible for nearly 20% of trade

secret decisions,” and “following the enactment of the

DTSA …. California and Texas saw the most DTSA

filings.” Jeffrey Mordaunt, Neil Eisgruber & Joshua

Swedlow, Trends in Trade Secret Litigation Report

2020, Stout, LLC, 10, 13 (2020); see also Ivan Moreno,

Trade Secret Filings Hit Record High in 2025, Report

Finds, Law360 (Jan. 28, 2026), https://www.law360.

com/articles/2433237/trade-secret-filings-hit-record-hi

gh-in-2 025-report-finds (C.D. Cal. “lead[s] all [trade

secret] court filings from 2023 through 2025”).

Meanwhile, trade-secret cases continue to climb. In

2025 alone, 1,500 cases were filed in federal district

courts, Lex Machina, Trade Secret Litigation Report

2026, 5 (LexisNexis 2026), https://law.lexmachina.

com/help/published-reports, as the nation’s inventors

and intellectual property owners increasingly fend off

foreign threats that prioritize theft over innovation.

At this crucial time, only this Court is well-positioned

to bring the uniformity and predictability that Congress intended with the DTSA to this commercially

vital area of law.

II. The Decision Below Is Wrong On the

Merits and Raises Issues of Exceptional

Importance

The precedent set below is also deeply problematic.

Strict apportionment renders the viability of trade

secret damages awards contingent on an inflexible,

highly specific evidentiary baseline. Satisfaction of

that baseline, moreover, turns on the happenstance of

whether a product or system is even amenable to à la

carte valuations and whether the damages evidence at

trial neatly corresponded to the trade secrets

ultimately found by the jury. This regime not only

sharply curtails congressionally-envisioned remedies

for the proven theft of trade secrets, but it curtails

them arbitrarily. More fundamentally, it invites

intrusive judicial second-guessing of jury verdicts that

flouts the commands of the Seventh Amendment and

bedrock principles of deference.

A. A Strict-Apportionment Approach to

Trade Secret Damages Is Unworkable

The DTSA lends no support for conditioning recovery

of damages on strict apportionment. The statute

expressly provides for both reasonable royalty and

unjust enrichment damages for proven misappropriation. See 18 U.S.C. §§ 1836(b)(3)(B)(i)(II), (ii). Here,

Trinseo established misappropriation, proved that its

trade secrets had value, and was awarded both types

of damages envisioned by the statute. Those damages

were then gutted by the Fifth Circuit’s engrafting of a

stringent limitation that Congress did not enact.

The Fifth Circuit and district court instead drew

support for their strict-apportionment rule from

“patent law cases” and “policies articulated by the

Federal Circuit.” App.12, 88. But whatever the merits

of importing the general patent-law apportionment

concept2 that damages “must reflect the value

attributable to the infringing features of the product,

and no more,” Finjan, Inc. v. Blue Coat Systems, Inc.,

879 F.3d 1299, 1309-10 (Fed. Cir. 2018), categorical

imposition of a strict-apportionment requirement is

a poor fit for the trade-secrets context. See App.86

(“Patent law is perhaps an imperfect overlay.”).

Patents are public, discrete, and defined through a

formal process. “[T]o receive patent protection, any

claimed invention must be novel … nonobvious … and

fully and particularly described.” Bilski v. Kappos, 561

U.S. 593, 609 (2010); see also 2 Callmann on Unfair

Competition, Trademarks & Monopolies § 14:27 &

n.52 (4th ed.). Trade secrets, by contrast, protect a

broader range of technologies, covering commercially

Even in the patent context, courts have “never required

absolute precision in applying the principles of apportionment.”

Bio-Rad Labs, Inc. v. 10X Geronics Inc., 967 F.3d 1353, 1377 (Fed.

Cir. 2020); see also, e.g., Pavo Sols. LLC v. Kingston Tech. Co., 35

F.4th 1367, 1380 (Fed Cir. 2022) (“[W]hen a sufficiently comparable license is used as the basis for determining the appropriate

royalty, further apportionment may not necessarily be required.”).

valuable information that is not publicly known given

the required efforts to maintain secrecy. Because

trade-secret owners define trade secrets based on what

they view as worth protecting, the contours are less

ascertainable. The dividing line between trade secrets

and non-secrets—unlike that between patented and

non-patented features—is ordinarily a jury question,

clarified through litigation and settled only upon the

jury’s verdict. See Kevin McElroy & Lindsey Fisher,

Trends in Trade Secret Litigation Report Volume 3,

Stout, LLC, 23 (2024) (42% of cases studied included

multiple types of trade secrets, including some that

“overlap”).

Those features underscore that a strict-apportionment approach carries, as acknowledged below,

inordinately “harsh consequence[s]” in trade secrets

cases. App.88. Given the less ascertainable bounds of

a trade secret, it is not at all uncommon for what the

company deems protected to deviate from what the

jury finds. Trade-secret owners are particularly at risk

of facing the predicament where the jury finds some

but not all of the alleged trade secrets. And because it

is unknowable until a verdict which secrets a jury will

find, the damages evidence they present at trial will

often not correspond precisely to the number and

permutation of jury-found secrets.

These complexities are only compounded by the fact

that “‘[d]amages in trade secrets cases are difficult to

calculate.’” Mid-Michigan Computer Systems, Inc. v.

Marc Glassman, Inc., 416 F.3d 505, 510 (6th Cir. 2005).

Because trade secrets derive value from their confidentiality, owners rarely license them at all—and do

so even more rarely when the trade secrets are

embedded within an integrated system or process.

Here, even the district court recognized that “in the

industry, the entire PC package … was the product.”

App.86 (emphasis added). “[I]t was not ten individual

trade secrets that were misappropriated” but rather

“an entire PC manufacturing plant design,” and “PC

packages are purchased or licensed in their entirety,”

not through “sales of individual trade secrets within

the package.” Id. Even KBR’s own expert knew of

no contrary example. C.A.App.13723:1–8. Yet strict

apportionment would dictate that victims of theft

undertake the often-impossible exercise of retroactively isolating per-trade-secret values even where,

as here, the market values the secrets as a package.

See, e.g., EchoSpan, 2025 WL 3046753, at *2 (alleging

multiple secrets pertaining to one “360-degree review

product”). Requiring evidence that does not exist is

problematic on its face. It also flies in the face of the

“flexible and imaginative approach” courts have long

taken to trade secret damages—an approach rooted in

the recognition that “‘each case [should be] controlled

by its own peculiar facts and circumstances,’” rather

than subject to categorical dictates.

University

Computing Co., 504 F.2d at 538 (citation omitted).

Trinseo’s “all-or-nothing” predicament, App.33—

where it had to prevail on everything or recover

nothing—was thus a predicament of the lower courts’

creation, not its own. Trinseo bundled its damages for

the PC package as a whole not because of some

strategic “gamble,” as the Fifth Circuit suggested, but

because of undisputed market realities about how

PC technology is licensed and purchased. Id. The

putative alternative—ginning up per-trade-secret

valuations in the face of those realities—would have

run headlong into Daubert reliability issues. At

bottom, there is virtually nothing trade-secret owners

can do to avoid an “all-or-nothing” predicament. They

cannot see into the future and tailor their damages

evidence to secrets the jury will later find. They

cannot alter market realities of their product. Even if

they wanted to whittle down the number of trade

secrets they allege, or gamble on subsets of secrets a

jury might ultimately find—for instance, proffering

one expert to speak to how trade secrets 1, 3, and 5

were value-drivers of the product, and another to

speak to trade secrets 2, 4, and 6—these choices would

remain fraught with risk. Any jury’s deviation from

that number or permutation of secrets could still,

under the Fifth Circuit’s approach, leave an award at

risk and consequent theft unpunished. Moreover,

proffering multiple narratives on damages to preemptively account for multiple potential verdicts would

generate confusion, muddy the presentation of

evidence, and needlessly prolong trials.

Nor is implementation of strict apportionment at all

straightforward. The Fifth Circuit’s rigid approach

demands correspondence between the trade secrets

valuated and the trade secrets ultimately found,

whereby damages for four secrets can only be

sustained by valuations corresponding to those four

secrets, while valuations of more than four render any

award speculative. But countless variations will

abound. What if there were valuations as to four

secrets, and the jury found three secrets but awarded

an inexplicable amount untethered to the valuations?

What if there were valuations available as to three

secrets, but the jury found four and awarded proportionally more than the three valuations combined?

What if the plaintiff provided valuations as to two

secrets, the defendant proffered that two other secrets

had zero value, and the jury found four secrets and

attributed value to all four? What if there were

valuations of four secrets and the jury found four but

included a different fourth secret? Ultimately, per-

trade-secret valuations do not ensure close correspondence between the evidence and the award, and

conversely, such correspondence can be gleaned absent

valuations of every secret. More broadly, juries’

thought processes are not readily decipherable—

precisely why courts have long considered jury

verdicts through a more flexible lens, rather than

micromanaging their inputs or parsing their outputs.

At bottom, the strict-apportionment approach is

neither workable nor just, and this Court should not

hesitate to correct course. Drawing on an inapt

analogy to patent law, it portends drastic consequences

for proven victims of trade secret theft and substantial

windfalls for proven thieves who profit from stolen

knowledge. This is not a coherent regime. Because

there is little a trade-secret owner can do ex ante to

ensure that damages evidence corresponds to the

number and permutation of trade secrets later found

by the jury, strict apportionment effectively leaves the

very prospect of recovering damages to fate, contravening the congressional intent behind the DTSA.

The losers are American companies—companies that

invest heavily to innovate and develop valuable

technologies to benefit consumers and create jobs—

who pursue trade-secret thieves in court, prevail in

hard-fought trials, and secure damages from a jury

only to see them nullified. The only winners are tradesecret thieves who are incentivized to steal trade

secrets with impunity. No remedial purpose is served

by permitting the decision below to stand and

perpetuate still more arbitrary results.

B. The Decision Below Invites Aberrational Intrusions on the Province of the

Jury

More fundamentally, the strict-apportionment

approach invites fine-grained judicial parsing of jury

determinations and their underlying bases that is

fundamentally at odds with our legal traditions

and the commands of the Seventh Amendment. By

ratcheting up the evidentiary baseline to sustain jury

damages awards, it sets a markedly low bar to

overturn them—and threatens the overturning of any

number of jury damages awards issued, as here, after

diligent consideration by properly-instructed juries.

As this Court has said, “[t]he right of trial by jury is

of ancient origin, characterized by [William] Blackstone as

‘the glory of the English law’ and ‘the most transcendent privilege which any subject can enjoy.’” Dimick

v. Schiedt, 293 U.S. 474, 485 (1935). The Seventh

Amendment commands that “[i]n Suits at common

law, … the right of trial by jury shall be preserved and

no fact tried by a jury, shall be otherwise re-examined

in any Court of the United States, than according to

the rules of the common law.” U.S. Const. amend. VII.

Indeed, respect for jury pronouncements is so

engrained that courts have cautioned against

questioning the award even where verdicts are

contradictory. See, e.g., McElrath v. Georgia, 601 U.S.

87, 97 (2024) (“[I]nconsistency in a verdict is not a

sufficient reason for setting it aside.”); United States v.

Powell, 469 U.S. 57, 69 (1984) (upholding jury verdicts

that “cannot rationally be reconciled,” acquitting

defendant of predicate offense but convicting on

compound offenses); Dunn v. United States, 284 U.S.

390, 393-94 (1932) (holding that “[c]onsistency in the

verdict is not necessary” as “the verdict may have been

the result of compromise, or of a mistake on the part

of the jury,” and “verdicts cannot be upset by

speculation or inquiry into such matters.”). Nor do we

require jury determinations to hew precisely to

underlying evidence. Cf. Russo, 550 F.3d at 1018

(Gorsuch, J.) (juries often “f[i]nd the truth to lie

somewhere in between … extremes suggested by the

evidence”). As this Court warned long ago, “courts

should be slow to impute to juries a disregard of their

duties” and to attempt to stand in their shoes.

Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S.

474, 484-85 (1933).

Against that backdrop, this Court has underscored

damages assessment as a core jury prerogative—one

in which juries can “make a just and reasonable

estimate of the damage based on relevant data,”

including “probable and inferential” evidence. Bigelow

v. RKO Radio Pictures, 327 U.S. 251, 264 (1946); see

also Story Parchment, 282 U.S. at 563 (“[I]t will be

enough if the evidence show the extent of the damages

as a matter of just and reasonable inference”). Where

the fact of damage is established, as here, juries

receive “fair latitude to make reasonable approximations” of the extent of that damage. Sea-Land Servs.,

414 U.S. at 590; see also Eastman Kodak Co. of NY v.

Southern Photo Materials Co., 273 U.S. 359, 379 (1927)

(“Damages are not rendered uncertain because they

cannot be calculated with absolute exactness.”).

After a three-week trial, the “attentive and

thorough” jury below, App.50, saw fit to unanimously

award Trinseo $77 million in damages based on its

view of the harm done to Trinseo and the wrongful

profits Respondents reaped. The Fifth Circuit and

district court, however, nullified that award. The jury

had been instructed to only award damages that

reflected the value attributable to the misappropriated

trade secrets, and do so based only on evidence, not

speculation or guesswork. Rather than reasonably

inferring that the jury heeded those instructions and

that $77 million was the value it attributed to the

misappropriated secrets, the courts presumed the

opposite—that the award did amount to speculation

and guesswork, and that the $77 million improperly

reflected value attributable to more than the four

secrets. Instead of drawing all inferences in favor of

the award, the courts aggressively second-guessed it.

At times, the scrutiny approached near-mathematical

levels of exactitude, as when, in rejecting Trinseo’s own

interpretation that the jury had apportioned value to

just the four secrets, the district court reasoned that

the jury “reduced liability for the claimed trade secrets

by 60%” yet “reduced the requested damages figured

by only 37.5%.” App.53-54 & n.8 (emphases added).

That scrutiny further extended to the discussion of

the award’s potential evidentiary bases. In other

cases, courts have pointed to testimony about secrets

that disproportionately drove the value of a product or

process to uphold damages figures even absent pertrade-secret apportionment. See, e.g., EchoSpan, 2025

WL 3046753, at *2. Here, the Fifth Circuit strained to

minimize analogous testimony about value-drivers. It

acknowledged that two of the four jury-found secrets

were said to “‘form[] the heart or the core of the value’

of Trinseo’s PC technology.” App.22. Yet it reasoned

that the same expert testified that “other, non-trade

secret components were [also at] the heart or core” and

observed that a different expert had provided differing

analysis about “core” components as well. Id. It should

have been immaterial, however, that the expert also

testified about non-secrets, or that another expert

provided inconsistent testimony. This was transparent

“weighing of the evidence”—a function constitutionally

reserved for the jury, not the Fifth Circuit. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986) (“Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a

judge….”); Reeves, 530 U.S. at 152-53 (faulting lower

court for “disregard[ing]” half of the supposedly

contradictory statements that “favor[ed]” the nonmovant in a JMOL ruling). And it was emblematic

of the unduly inflexible conception below of what

evidence could support the jury’s actions. Cf. e.g.,

App.64-65 (opining that even awarding “1/3 of the

damage figure after finding liability on only one out of

three alleged trade secrets” would be “unsupportable”

absent “testimony that each trade secret was equally

valuable”) (emphasis added).

In fact, there was a multitude of ways that the jury

could have settled on its $77 million figure. Having

whittled down the number of trade secrets by 60%,

the jury could have correspondingly whittled down the

damages requested yet applied a less-than-60%

reduction given the outsized value of the two valuedrivers. There was also ample record evidence that

supported the jury’s $77 million figure.3 Instead, the

Testimony established that the two trains licensed to

Cangzhou and Pingmei were $25 million per train, totaling the

$50 million in reasonable royalties. C.A.App. 13655:14–17, 21–23.

The jury could alternatively have reached that figure from

evidence about the 2013 and 2014 negotiations between Trinseo

and KBR; the midpoint of their competing valuations was $250

per ton, which, when multiplied by 200,000 metric tons, totaled

$50 million. C.A.App.7814. Meanwhile, the jury’s $21.2 million

in unjust enrichment damages approximated Pastore’s estimate

for either Cangzhou or Pingmei. See C.A.App.11831-32 (esti-

court drew inferences against the jury’s award. For

instance, the district court acknowledged other

damages evidence beyond Pastore’s testimony that the

jury might have relied on to reduce damages from $130

million to $77 million. It inexplicably maintained,

however, that the jury still improperly intended the

$77 million to reflect damages “representing all ten

trade secrets.” App.54 n.8. (emphasis added). But a

reasonable inference in favor of the verdict, and one

consistent with the jury instructions, would have been

that the reduced figure of $77 million reflected the

reduced number of trade secrets—and thus reflected

that the jury had properly apportioned value to the

four misappropriated secrets alone. The courts below

did not afford the jury any such deference.

It makes little sense to single out trade secrets jury

awards for this level of granular scrutiny. The Federal

Circuit’s penchant for overturning patent-case jury

verdicts has long drawn ire. See Pet. at 26, Finesse

Wireless LLC v. AT&T Mobility LLC, No. 25-953

(filed Feb. 6, 2026) (pending petition for certiorari

calling out the pattern of “uniquely intrusive appellate

review of jury verdicts in patent cases”). Judges and

commentators have faulted the Federal Circuit for

effectively carving out a patent-law exception to the

Seventh Amendment where, “notwithstanding any

trial level activity,” the Federal Circuit “will do pretty

much what it wants under its de novo retrial.”

Markman v. Westview Instruments, Inc., 52 F.3d 967,

993 (Fed. Cir. 1995) (Mayer, J., concurring in the

judgment) (citation omitted); see also Becton,

Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d

mating unjust enrichment of $22.9 million for Cangzhou and

$22 million for Pingmei). All this evidence supported the jury’s

award, yet it went unmentioned below.

1249, 1266 (Fed. Cir. 2010) (Gajarsa, J., dissenting)

(criticizing colleagues’ “search of perfection in the jury

verdict” which “fails to allow the jury to perform its

proper function”). The Fifth Circuit’s decision below

only compounds that perceived pattern, importing a

specific point of patent-law practice to extend the

“search of perfection in the jury verdict” to trade secret

jury awards going forward. E.g., John Marsh, Three

More Mammoth Trade Secret Verdicts Fail to Survive

Appeal, Bailey Cavalieri: The Trade Secret Litigator

(Feb. 10, 2026), https://www.tradesecretlitigator.com/

2026/02/three-more-mammoth-trade-secret-verdictsfail-to-survive-appeal-the-trade-secret-litigator-readsthe-tea-leaves-part-i/ (listing instances of large trade

secret verdicts being recently overturned).

Finally, the wholesale vacatur of the jury’s damages

award here—after Trinseo’s years of litigation,

“abundan[t]” proof of misappropriation, and “certain[]

evidence that the trade secrets had value,” App.50,

100—was particularly egregious because it was

premised on a requirement that the Fifth Circuit

acknowledged it had “never explicitly adopted.”

App.13; see also App.58 (“the Fifth Circuit does not

appear to have encountered a case involving apportionment in trade secrets cases”); App.94 n.33

(addressing what might happen “in the event that the

Fifth Circuit determines that apportionment by trade

secret is not required to support an unjust enrichment

award”). In similar circumstances, other courts have

not hesitated to recognize the unfairness to parties

whose damages presentation at an initial trial

implicated legal issues that the relevant circuit

had yet to decide. See Syntel Sterling Best Shores

Mauritius Ltd. v. TriZetto Grp., Inc., No. 15 Civ. 211,

2024 WL 1116090, at *8 (S.D.N.Y. Mar. 13, 2024)

(recognizing that “[v]acating the entirety of the

jury’s … damages” based on legal error “in effect,

penalizes TriZetto for presenting a theory of damages

that had yet to be addressed by the Second Circuit and

had been accepted by the Seventh Circuit”); Syntel

Sterling Best Shores Mauritius Ltd. v. TriZetto Grp.,

No. 15 Civ. 211, 2024 WL 4553894, at *2 (S.D.N.Y. Oct.

23, 2024) (remanding for a new trial on damages

because “[p]enalizing TriZetto with no compensatory

damages for relying on a colorable theory in an unclear

area of law would be a serious injustice and disrespect

the jury’s view”); see also Versata Software, LLC v. Ford

Motor Co., No. 2024-1140, 2026 WL 1449851, at *5

(Fed. Cir. May 22, 2026) (remanding for a new trial on

damages after “partially vacat[ing] the district court’s

JMOL zeroing out the jury’s damages award”); Cartel

Asset Mgmt. v. Ocwen Fin. Corp., 249 Fed. App’x 63, 82

(10th Cir. 2007) (remanding for a new trial on damages

because “interests of justice require [that plaintiff]

have a chance to correct its evidentiary shortcomings

before reducing the jury’s award to only $1 nominal

damages”).

At minimum, the Fifth Circuit and district court

before it erred in denying Trinseo a new trial on

damages, App.32, CA.App.8422, after declaring for the

first time that a per-trade-secret showing or methodology is required to sustain any damages award as a

matter of law. Trinseo was penalized for taking a

colorable position on strict apportionment—namely,

that it was not required—that was, and is, supported

by other circuits’ caselaw, on an issue concededly

unresolved by the Fifth Circuit at the time. The

interests of justice demand that Trinseo at least be

afforded an opportunity to prove its damages anew

under the newly-minted apportionment regime set

forth by the decision below.

CONCLUSION

The petition for a writ of certiorari should be

granted. If this Court does not grant plenary review,

it should summarily reverse the judgment below.

Respectfully submitted,

STEWART HOFFER

JUSTIN R. BRAGA

HICKS THOMAS LLP

700 Louisiana Street

Suite 2300

Houston, Texas 77002

CANDICE C. WONG

Counsel of Record

ELIZABETH J. KALANCHOE

JOHN Q. RUSSELL

FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON LLP

801 17th Street, N.W.

Washington, DC 20006

(202) 639-7000

Candice.Wong@friedfrank.com

Counsel for Petitioner

June 2, 2026

APPENDIX

APPENDIX TABLE OF CONTENTS

APPENDIX

Page

Appendix A: Opinion, United States Court of

Appeals for the Fifth Circuit, Trinseo Eur.

GmbH v. Kellogg Brown & Root, L.L.C., No.

24-20460 (Jan. 21, 2026) ................................

Appendix B: Order, United States Court of

Appeals for the Fifth Circuit, Trinseo Eur.

GmbH v. Kellogg Brown & Root, L.L.C., No.

24-20460 (Mar. 4, 2026) .................................

42a

Appendix C: Sealed Order, United States

District Court for the Southern District of

Texas, Trinseo Eur. GmbH v. Kellogg Brown

& Root, L.L.C., No. 20-478 (Sept. 11, 2024)

(unsealed by Fifth Circuit on Feb. 4, 2025)...

43a

Appendix

Amended

Permanent

Injunction, United States District Court for

the Southern District of Texas, Trinseo Eur.

GmbH v. Kellogg Brown & Root, L.L.C., No.

20-478 (Nov. 13, 2024) ................................... 105a

Appendix E: Final Judgment, United States

District Court for the Southern District of

Texas, Trinseo Eur. GmbH v. Kellogg Brown

& Root, L.L.C., No. 20-478 (Sept. 11, 2024) .. 113a

(i)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[FILED: January 21, 2026]

————

No. 24-20460

————

TRINSEO EUROPE GMBH,

Plaintiff—Appellant/Cross-Appellee,

versus

KELLOGG BROWN & ROOT, L.L.C.; STEPHEN HARPER,

also known as STEVE HARPER; STEVE HARPER

CONSULTING, INCORPORATED; POLYCARBONATE

CONSULTING SERVICES, INCORPORATED,

Defendants—Appellees/Cross-Appellants.

————

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-478

————

Before SMITH, STEWART, and RAMIREZ, Circuit Judges.

IRMA CARRILLO RAMIREZ, Circuit Judge:

After a jury found that the defendants misappropriated Trinseo Europe GmbH’s (Trinseo) trade secrets

and awarded it more than $75 million in damages, the

district court granted the defendants’ motions for

judgment as a matter of law and vacated the damages

award. It also granted summary judgment on Trinseo’s

alternative misappropriation of confidential information

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

entered a permanent injunction. We AFFIRM.

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

started developing a new process for manufacturing

polycarbonate (PC). PC is a material known for its

high heat tolerance, optical clarity, and high-impact

strength. It is used to produce items such as eyeglass

lenses, lighting fixtures, medical devices, and bulletproof glass. Dow’s PC manufacturing process was

based on an “interfacial” process, as distinct from a

“melt” process. Its PC plants encompassed a chemical

processing side called the “wet” side, and a compounding side called the “dry” side. The wet side is the part

of the plant that makes the physical PC in a “flake”

form. On the dry side, those flakes are combined and

melded with necessary additives to create the actual

product—a “pellet”—which is sold to manufacturers

that then incorporate the PC into their products.

The wet side (or chemical processing side) includes

five sequential stages. The first stage combines carbon

monoxide and chlorine gas in the “Phosgene Reactor”

to make phosgene gas. The phosgene gas is combined

with other chemicals in the “Oligomerization Reactor,”

and the resulting solution goes through another

reactor and a series of centrifuges to yield PC

molecules dissolved in methylene chloride. The

solution then moves into the “Steam Devolatilization

Process,” where the PC molecules are first combined

with a thermal stabilizer. Then, the PC molecules are

agglomerated together while being separated from the

methylene chloride solvent solution using a specially

designed nozzle, a “snake” apparatus, and other

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

formed. The flake is then sent through a series of

dryers and transported to the compounding side (i.e.,

the dry side) for later extrusion into pellet form. The

entire process is controlled by the “Process Control

Strategy.”

Dow first employed its PC manufacturing process in

1985 at its inaugural plant in Freeport, Texas. In 1991,

Dow opened another PC manufacturing plant in

Germany. Dow then licensed its technology to produce

PC through two joint ventures: one with Sumitomo in

Japan and one with LG in South Korea. In 2010, Dow

sold its entire PC business and technology under the

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

the private equity company changed the name of the

business from Styron to Trinseo.

Stephen Harper (Harper) worked as a chemical

engineer for Dow for 23 years, until his retirement in

1999. He worked on Dow’s PC technology during the

1980s and helped develop the Freeport plant. Harper

started consulting in the PC industry, and in 2007, he

presented information about Dow-type PC technology

to, and ultimately created a PC plant design package

for, a Chinese company. In 2009, an American

engineering firm hired Harper as a consultant. To help

with the project, Harper formed Stephen Harper

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

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

Tech Team created a process design package (PDP)

that the American engineering firm could use to

The core Tech Team group comprised Harper, William Davis,

Bryce Koslan, Richard Kirk, and Chip Melton, but other former

Dow employees would also play minor roles.

develop an engineering design package for a Chinese

client.2

In August 2011, the Stratford Research Institute

(SRI) published a report titled “Polycarbonate via Dow

Phosgenation Process.” This report was based in part

on information gleaned from Harper and the Tech

Team while they were working on SHC’s 2009 project.

Trinseo asked SRI to withdraw the report because it

“contain[ed] highly confidential, proprietary, and nonpublic, trade secret information.” SRI promptly pulled

the report from its website. Trinseo also inquired with

SRI about the sources for the report, and SRI

responded that the information came from “patents,

public documents[,] and various consultants.” Trinseo

collaborated with SRI on a revised report that was

published in November 2011.

In 2012, SHC agreed to provide an American

engineering services broker, Prime 3 Group (Prime 3),

PC technology and technical support in licensing the

technology to other clients. In March 2013, SHC

entered into another agreement with Prime 3 to

provide a basic engineering design plan for a PC plant

for Luxi Chemical Group (Luxi) in China. In April

2013, Enex International (Enex)—a Texas-based technology firm—became the provider of engineering

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

its processes, and its equipment. In other words, a PDP is a

“controlling document that embodies or describes the [PC]

technology.” A PDP is a “lead-in” to a basic engineering design

plan (BEDP), which “contains all of the information that’s

required to do [a] detail[ed] design” of the plant and explains

“exactly where in the process instrumentation needs to be . . . .”

In essence, the BEDP creates “what the plant looks like

physically.” It is also the package that is given to the “final

engineering company.”

services and detailed designs for the Luxi project. SHC

continued to act as the technology provider.

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

design to help create a similar plant. Harper obtained

a copy of Dow’s LG plant drawings—which were

marked “confidential”—from Tech Team member Chip

Melton (Melton), who had retained the drawings after

his employment with Dow ended. Harper used the

drawings for the Luxi plant, which became operational

in 2016. In 2017, Harper dissolved SHC and changed

the company’s name to PCS.

Kellogg Brown & Root, LLC (KBR) approached

Trinseo in September 2013 in hopes of licensing its

Dow-developed PC technology. Those discussions

continued into May 2014, when KBR and Trinseo

executed a nondisclosure agreement. During their

negotiations, Trinseo learned about “ex-Dow employees rumored to be practicing outside confidentiality

boundar[ies].” Certain Trinseo employees, including

longtime employee Jerry Duane (Duane), were

assigned to “work together” with KBR to investigate

the issue. But there was never a substantive

investigation. Instead, Trinseo relied on “a standing

instruction” with its employees in China “to report

back anything . . . that might be relevant to the

company.” Employees never “reported anything back

about [the] potential of ex-Dow employees consulting.”

In September 2014, Trinseo hosted several former

Dow employees, including Harper, for the official

closure of the Freeport plant. As Harper recalls, during

that event he told Duane that “he was doing some

consulting with a bunch of old polycarbonate guys

from the [1980s].” As Duane recalls, Harper did not

“link his consulting activities to consulting in

polycarbonate.” Duane also did not “make the

connection” that Harper might be part of the rumored

ex-Dow employees Trinseo assigned him to investigate

with KBR.

Ultimately, KBR and Trinseo did not execute a

licensing deal—Trinseo decided to stop licensing its

PC technology to avoid “get[ting] additional interfacial

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

a licensing partner. In 2015, KBR identified Enex—

which had worked on the Luxi project—as a potential

partner. In 2016, Enex granted KBR a license to use

its PC technology. KBR then began marketing its

“PCMax” package, advertising it as “Dow-type” PC

technology.

Enex later connected KBR to Harper and the Tech

Team. After meeting with them in May 2017, KBR was

“convinced” that the Tech Team was “well qualified

to fill in the gaps” KBR had “regarding the PC

technology[,] . . . including final product formulations.”

In June 2017, PCS agreed to provide KBR “technical

assistance in support of a two-day sales workshop that

KBR had scheduled with LG Chemical.” Ultimately,

LG never entered into a license agreement with KBR.

In September 2017, PCS and KBR began

negotiating an amendment to their agreement. Harper

told KBR he intended to develop a PDP based on the

In 2014, Trinseo started dwindling down what remained of its

PC business. Dow had already sold its interest in the LG joint

venture in 2010. Trinseo then closed the Freeport plant and

exited the joint venture with Sumitomo. By 2017, the only

remaining Trinseo PC production facility was the plant in

Germany. Trinseo has not since substantively engaged in the PC

industry, except that in November 2024, it executed a PC

licensing deal with a company in India.

LG plant design. In October 2017, KBR secured its

first PCMax licensing agreement with a Chinese

company, Cangzhou. In November 2017, PCS entered

an amended agreement with KBR to provide consulting services. KBR continued to market its PCMax

technology as “related to Dow/Trinseo PC technology.”

In May 2018, a member of the Tech Team emailed

Duane, who was planning to retire soon, and stated

that if Duane was “interested in doing some [PC]

consulting work, [he] should contact Steve Harper.”

The email further stated that Harper and others had

worked on a PC project in China several years prior,

and that Harper had been “having discussions with

KBR” regarding a “PC project for another Chinese

client.” In June 2018, KBR signed a license agreement

to develop a PC plant in China for a new client,

Pingmei.

On February 12, 2020, Trinseo filed its original

complaint against Harper, SHC, and PCS (collectively,

the “Harper Defendants”). It filed a second amended

complaint adding several claims and defendants,

including KBR, on January 11, 2022. Relevant to this

appeal, Trinseo alleged that the Harper Defendants

and KBR misappropriated ten of Trinseo’s trade

secrets in violation of the Defend Trade Secrets Act

(DTSA): (1) the Process Control Strategy and Concept

and Control Algorithms (Process Control Strategy),

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

Phosgene Reactor Design and Associated Pressure

Vessel Containment (Phosgene Reactor), (4) the Continuous Plug Flow Oligomerization Reactor Inside

Pressure Vessel Containment (Oligomerization Reactor),

(5) the Thermal Stabilizer Addition System, (6) the

Steam Devolatilization Process, (7) the Polymer

Solution Atomizer Nozzle, (8) the Snake Design,

(9) Polycarbonate Product Composition, Formulations,

or Recipes, and (10) Negative and Positive Knowledge.

Trinseo also alleged, in the alternative, misappropriation of confidential information under Texas law, but

the district court found the claims were preempted by

the Texas Uniform Trade Secrets Act (TUTSA) and

granted summary judgment.

Approximately a year before trial, KBR moved to

exclude the opinions of Trinseo’s damages expert,

Thomas Pastore (Pastore). KBR specifically argued

that Pastore was required to apportion damages

between the misappropriated features and nonmisappropriated features of Trinseo’s PC technology.

On November 30, 2023, the district court granted

KBR’s motion in part. As to KBR’s apportionment

argument, the district court noted that, in the Fifth

Circuit, “the proper measure of damages in cases of

trade secret appropriation is determined by reference

to the analogous line of cases from patent law,” which

require apportionment “when the accused technology

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

The district court stated that “Trinseo appear[ed]

willing to gamble that it [could] convince the jury that

the allegedly misappropriated trade secrets provided

all of the value of KBR’s end usage/product,” but if

Trinseo did not, “Pastore’s testimony [would] be totally

undermined.” It concluded that although Trinseo’s

“all-or-nothing approach” could fail, the approach did

not “render Pastore’s opinions inadmissible.”

Trinseo presented Pastore’s testimony to support its

damages model at trial. Pastore’s estimation of damages

was premised on the purported misappropriation of all

ten alleged trade secrets. Pastore did not individually

valuate each of the alleged trade secrets or any specific

combination of trade secrets, nor did he provide a

method for the jury to do so.

Out of the ten trade secrets alleged, the jury found

only four—the Process Control Strategy, Phosgene

Reactor, Oligomerization Reactor, and Steam

Devolatilization Process—actually qualified as trade

secrets. The jury further found that the defendants

misappropriated all four of these secrets. The jury

awarded Trinseo $50 million in reasonable royalty

damages and $21,206,132 in unjust enrichment

damages against KBR; $0.00 in unjust enrichment

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

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

unjust enrichment damages against PCS. The jury

also found by a preponderance of the evidence that

Harper is responsible for the conduct of SHC and PCS.

Finally, the jury rejected the Harper Defendants’ and

KBR’s limitations defenses.4

After trial, all defendants moved for judgment as a

matter of law under Federal Rule of Civil Procedure

50(b). The district court found that the jury’s liability

and affirmative defense findings were supported by

the evidence. As to damages, it found that—as in

patent law—“apportionment is generally required in

trade secrets cases involving multiple alleged trade

secrets.” According to the district court, “to protect

itself in the event that the jury finds liability on some,

but not all, alleged trade secrets, a plaintiff must

provide either (1) evidence that apportions value per

trade secret, or (2) evidence that provides some

Specifically, the jury found by a preponderance of the evidence

that Trinseo had not discovered, nor should have discovered

through the exercise of reasonable diligence, (1) Harper’s first

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

first alleged misappropriation before November 27, 2017.

10a

methodology or guidance for how the jury may do so

itself.” It determined that “Trinseo’s failure to

apportion [its trade secret damages], combined with

the jury’s failure to find liability on all ten alleged

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

granted judgment as a matter of law and vacated the

reasonable royalty and unjust enrichment damages

against KBR and the Harper Defendants.5

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

the district court granted Trinseo’s motion for a

permanent injunction. It subsequently entered an

order enjoining KBR and the Harper Defendants from

using Trinseo’s trade secrets. The district court then

entered a final, take-nothing judgment against Trinseo.

Trinseo moved for a new trial on damages, which the

district court summarily denied.

Trinseo, KBR, and the Harper Defendants filed

timely appeals. The parties first challenge different

aspects of the district court’s resolution of the motions

for judgment as a matter of law. Trinseo also appeals

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

and argues the district court erroneously determined

that Trinseo’s misappropriation of confidential information claims were preempted by TUTSA.6 Finally,

As to the unjust enrichment award against KBR, the district

court made a “contingent alternative finding” that, in the event

this court found apportionment was not required, the jury’s

award was otherwise unsupported by the evidence. On this basis,

the district court granted KBR’s request for remittitur and

reduced the award to $10.5 million. We need not address the

district court’s alternative finding because, as discussed below,

the district court properly vacated the damages based on

Trinseo’s failure to apportion.

Trinseo presents a myriad of other issues on appeal. It asks

the court to resolve the “open question” of whether the jury’s

response to the unjust enrichment question is “merely advisory”

11a

KBR asserts the district court abused its discretion in

granting a permanent injunction.

Trinseo argues the district court erred in granting

judgment as a matter of law and vacating the damages

awarded by the jury. KBR and the Harper Defendants

challenge the district court’s decision to sustain the

jury’s liability and affirmative defense findings.

We review decisions on Rule 50(b) motions for

judgment as a matter of law de novo, “apply[ing] the

same legal standard as the district court.” Baisden v.

I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir.

2012). “A party is only entitled to judgment as a matter

of law on an issue where no reasonable jury would

have had a legally sufficient evidentiary basis to find

otherwise.” Apache Deepwater, L.L.C. v. W&T Offshore,

Inc., 930 F.3d 647, 653 (5th Cir. 2019) (citing FED. R.

CIV. P. 50(a)(1)). “[B]ut our standard of review with

respect to a jury verdict is especially deferential.”

Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016)

(citation modified). We draw all reasonable inferences

in the light most favorable to the verdict. Westlake

Petrochemicals, L.L.C. v. United Polychem, Inc., 688

F.3d 232, 239 (5th Cir. 2012).

Trinseo argues the district court erred in relying on

patent law apportionment principles to nullify the

jury’s reasonable royalty and unjust enrichment

awards against KBR and the Harper Defendants.

and challenges the district court’s contingent grant of a

remittitur. If a new trial is granted, Trinseo also challenges

certain evidentiary rulings by the district court. Given our

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

12a

Alternatively, it asserts there is sufficient evidence to

support the jury’s award even under patent law

apportionment rules. We disagree on both points.

The DTSA sets forth available damages with respect

to trade secret misappropriation. 18 U.S.C. § 1836(b)(3)(B).

First, courts may award “damages for actual loss

caused by the misappropriation of the trade secret”

and “damages for any unjust enrichment caused by the

misappropriation of the trade secret that is not

addressed in computing damages for actual loss.” Id.

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

damages caused by the misappropriation measured by

imposition of liability for a reasonable royalty for the

misappropriator’s unauthorized disclosure or use of

the trade secret.” Id. § 1836(b)(3)(B)(ii).

As this court has long held, “[i]t seems generally

accepted that ‘the proper measure of damages in the

case of a trade secret appropriation is to be determined

by reference to the analogous line of cases involving

patent infringement . . . .’” Univ. Computing Co. v.

Lykes-Youngstown Corp., 504 F.2d 518, 535–38 (5th

Cir. 1974) (quoting Int’l Indus., Inc. v. Warren

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

(reviewing numerous patent cases to determine how

damages should be assessed in the trade secret

context). Looking to patent law cases, it is wellestablished that “[w]hen the accused technology does

not make up the whole of the accused product,

apportionment is required.” See Finjan, Inc. v. Blue

Coat Sys., Inc., 879 F.3d 1299, 1309 (Fed. Cir. 2018). In

other words, a patentee “must in every case give

evidence tending to separate or apportion the

defendant’s profits and the patentee’s damages

between the patented feature and the unpatented

13a

features . . . .” Garretson v. Clark, 111 U.S. 120, 121

(1884) (citation modified).

Although we have never explicitly adopted patent

law’s apportionment principles in the trade secret

context, we outlined the same general principles in

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

Specifically, we observed that reasonable royalty

damages in trade secret cases should yield “an

apportionment of profits based on an approximation of

the actual value of the infringed device to the

defendant.” Id. at 537 (emphasis added). A plaintiff

may also recover “the full total of [a] defendant’s

profits or some apportioned amount designed to

correspond to the actual contribution the plaintiff’s

trade secret made to the defendant’s commercial

success.” Id. at 539 (emphasis added). In short, trade

secret damages—whether measured by a reasonable

royalty or lost profits—must, like patent damages,

“reflect the value attributable to the infringing

features of the product, and no more.”7 See Finjan, 879

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

773 F.3d 1201, 1226 (Fed. Cir. 2014)) (applying

apportionment principles in a patent law case).

Applying apportionment rules similar to those

outlined in University Computing, courts have vacated

damages awarded by juries due to failure to apportion

in trade secret cases. See, e.g., Tex. Advanced

Optoelectronic Sols., Inc. v. Renesas Elecs. Am., Inc.,

895 F.3d 1304 (Fed. Cir. 2018) [hereinafter TAOS]; O2

Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 399 F.

Recognizing the emphasis University Computing places on

apportionment, Trinseo concedes that the “patent-law concept [of

apportionment] is not necessarily inconsistent with how this

Court conceived of damages in trade secret misappropriation

cases.”

14a

Supp. 2d 1064 (N.D. Cal. 2005), aff’d, 221 F. App’x 996

(Fed. Cir. 2007). In TAOS, for example, the jury found

the defendant misappropriated three trade secrets

and awarded disgorgement damages. 895 F.3d at 1310.

On appeal, the Federal Circuit affirmed the jury’s

liability finding as to only one of the trade secrets. Id.

at 1312–15. Because the plaintiff “did not explain

which of the trade secrets contributed to what amount

of profit to be disgorged” and instead “assigned all

profits to the misappropriation of all trade secrets,”

however, the Federal Circuit found “no basis to

conclude that the [one] remaining” trade secret

“support[ed] the entire award.” Id. at 1317. As a result,

it held that the “monetary award for trade secret

misappropriation must be vacated because [the court

had] determined that misappropriation liability here

can properly rest on only one of the three grounds that

[the plaintiff] presented to the jury. [The plaintiff ’s]

calculation of monetary relief did not distinguish

among those grounds.” Id.

Likewise, in O2 Micro, the jury determined that the

plaintiff had established eleven trade secrets, but only

five were misappropriated by the defendant and only

one unjustly enriched the defendant. 399 F. Supp. 2d

at 1069. Prior to trial, the district court had warned

the plaintiff “of the dangers of bundling all of its

alleged trade secrets damages together.” Id. at 1076.

Regardless, the plaintiff ’s expert only “provided the

jury with a damages calculation based on an assumption that all of the trade secrets were misappropriated.”

Id. Because the expert did “not provide a reasonable

basis for the jury to apportion damages,” the court

concluded there was no “reasonable basis for the jury

to determine the amount that [the defendant] was

unjustly enriched based upon its misappropriation of

[one trade secret].” Id. at 1077. “After the jury

15a

concluded that [the defendant] did not misappropriate

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

that the “expert testimony regarding damages for

misappropriation of all trade secret[s] was useless to

the jury.” Id. The district court then granted the

defendant’s motion for judgment as a matter of law as

to the jury’s unjust enrichment award. Id.

The reasoning in TAOS and O2 Micro is consistent

with the apportionment principles outlined by this

court in University Computing, and we find it

persuasive.8 They also reflect the commonsense notion

Although TAOS and O2 Micro were in the same procedural

posture as this case, we note that several district courts have

applied the same apportionment principles when resolving

motions for summary judgment and to exclude expert testimony.

See, e.g., Alcatel USA, Inc. v. Cisco Sys., Inc., 239 F. Supp. 2d 660,

671 (E.D. Tex. 2002) (granting summary judgment on the

plaintiff’s state law trade secret claims because the plaintiff

“fail[ed] to apportion the value of its alleged trade secrets” and

instead “attempt[ed] to attribute every penny of . . . [its]

technology to the value of its alleged trade secrets”); LivePerson,

Inc. v. [24]7.AI, Inc., No. 17-CV-01268-JST, 2018 WL 6257460, at

*2 (N.D. Cal. Nov. 30, 2018) (“[The expert’s] opinion must be

excluded because he does not apportion trade secret misappropriation damages among particular alleged trade secrets, and

offers no methodology for the jury to calculate trade secret

misappropriation damages on fewer than all of the 28 alleged

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

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

2023) (precluding an expert from “testifying that the jury should

award the entire $15.4 million lump-sum royalty if the jury found

that only one [out of four] of Plaintiffs’ alleged trade secrets has

been misappropriated”); Ford Motor Co. v. Versata Software, Inc.,

No. 15-11624, 2018 WL 10733561, at *11 (E.D. Mich. July 9, 2018)

(excluding an expert’s testimony regarding trade secret damages

because he “failed to apportion [the plaintiff’s] alleged damages

on a trade-secret-by-trade-secret basis” and so, “if the jury were

to conclude that [the defendant] misappropriated less than all of

[the plaintiff’s] trade secrets . . . , then [the expert’s] damages

16a

that trade secret damages must be tied to the

defendant’s wrongful conduct—i.e., the misappropriation.

Here, Trinseo presented damage estimations that

assumed misappropriation of all ten alleged trade

secrets. But the jury found only four trade secrets were

misappropriated by KBR and the Harper Defendants.

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

secrets damages together,” the jury did not have a

reasonable basis to award damages based on the

misappropriation of only four trade secrets.9 See O2

Micro, 399 F. Supp. 2d at 1076; TAOS, 895 F.3d at

1317.

Trinseo urges us to look instead to the Sixth

Circuit’s decision in Caudill Seed & Warehouse Co. v.

Jarrow Formulas, Inc., 53 F.4th 368 (6th Cir. 2022),

which Trinseo asserts rejected O2 Micro and TAOS.

But Caudill distinguished O2 Micro and TAOS,

calculation would not assist the jury in calculating damages and

could only serve to confuse them”). This was the context in which

the district court in this case first faced the apportionment issue,

as KBR moved to exclude Pastore’s opinions based on failure to

apportion. Although the district court denied the motion to

exclude on this basis, it warned Trinseo that it’s its “all-or-nothing

approach” to damages was a “gamble.” It further put Trinseo on

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

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

Trinseo argues O2 Micro is not instructive because the

district court ultimately awarded reasonable royalty damages.

But the district court in O2 Micro determined that the plaintiff’s

“reasonable royalty estimate” was not “plagued with the same

problem as its unjust enrichment damages award” because there

was expert testimony “that the parties in a hypothetical

negotiation would agree to a $900,000 paid-up reasonable royalty

for any one group of trade secrets.” 399 F. Supp. at 1077–78. The

expert also testified that the trade secrets found by the jury

“would be an example of a group of trade secrets.” Id. at 1078.

Trinseo did not present similar evidence.

17a

emphasizing that the expert did not take an “all-ornothing approach” and “gave the jury options” that

“allowed the jury to calculate the value” of one trade

secret “even while finding no misappropriation of ”

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

did not give the jury similar options.

Trinseo also relies on Bishop v. Miller, 412 S.W.3d

758 (Tex. App.—Houston [14th Dist.] 2013, no pet.),

arguing it represents a “flexible, non-categorical”

approach to trade secret damages. In Bishop, the

defendant argued the plaintiff ’s expert’s “damages

calculations were unreliable because he failed to

provide separate values for each of the items the jury

found to be [the plaintiff ’s] trade secrets and instead

provided only one value for misappropriation.” 412

S.W.3d at 777–78. The court rejected that argument,

however, because the jury found that the plaintiff

“owned a compilation trade secret comprised of some

or all of the thirteen items listed in the jury charge.”

Id. at 778 (emphasis added). The jury in this case was

not presented with a question regarding compilation

trade secrets.

Finally, Trinseo argues that the district court’s socalled “strict apportionment” requirement—a term

that the district court used twice in its 48-page order—

conflicts with the flexible approach to trade secret

damages adopted in University Computing. See 504

F.2d at 535. First, although this court has endorsed a

flexible approach to trade secret damages, that does

not disturb the settled principle that “[e]stimation of

damages . . . should not be based on sheer speculation.”

See Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d

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

669 (“While the Court recognizes that some degree of

speculation is inherent in calculating a suppositious

18a

licensing agreement between two parties that has

never occurred, this hypothetical construct, however,

must contain some degree of certitude.”). Allowing

damages to be awarded for the misappropriation of

four trade secrets based on an estimation that

presumed misappropriation of ten trade secrets lends

itself to such speculation. Second, despite its passing

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

“strict apportionment” theory. Nor do we.

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

secret misappropriation damages must reflect the

value attributable to the information or technology

that is misappropriated by the defendant. It follows

that, where a plaintiff alleges multiple trade secrets,

the jury must have a reasonable basis to award

damages attributable only to the information or

technology that actually qualifies as a trade secret.10

Trinseo failed to present evidence that would allow the

jury to do so in this case.

Trinseo next argues that, even if apportionment

principles apply in this case, the district court should

have accepted the jury’s reasonable royalty award

under either the “built-in apportionment” theory or

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

Given that “every case requires a flexible and imaginative

approach to the problem of damages,” we need not give an

exhaustive list of ways a plaintiff may do so. See Univ. Computing,

504 F.2d at 538. But a few possible methods come to mind. For

instance, a plaintiff could individually valuate each alleged trade

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

Alternatively, a plaintiff could provide a methodology for the jury

to calculate the value of a particular trade secret or group of trade

secrets.

19a

“entire market value” exception.11 Trinseo also argues

that the jury’s verdict should be sustained because the

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

driver of the demand for Trinseo’s PC manufacturing

technology.”

KBR argues that Trinseo has forfeited its “built-in

apportionment” argument. “A party forfeits an

argument by failing to raise it in the first instance in

the district court—thus raising it for the first time on

appeal—or by failing to adequately brief the argument

on appeal.” Rollins v. Home Depot USA, 8 F.4th 393,

397 (5th Cir. 2021). We have discretion, however, to

consider an issue raised for the first time on appeal

where “it is a purely legal matter and failure to

consider the issue will result in a miscarriage of

justice.” Id. at 398 (quoting Essinger v. Liberty Mut.

Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008)).

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

apportionment” argument in the district court. The

issue is also not a “purely legal matter,” as Trinseo

admits that it “has both legal and factual aspects.” See

id. “Nor is there manifest injustice to correct here”

given that “nothing prevented” Trinseo from raising its

“built-in apportionment” argument in responding to

KBR’s motion for judgment as a matter of law. See id.

at 399. There is “no principled basis” to address

Trinseo’s forfeited “built-in apportionment” argument.

See id. at 398.

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

entire market value exception in the context of the jury’s unjust

enrichment awards. Even so, our analysis below would apply to

the unjust enrichment awards with equal weight.

20a

KBR also argues Trinseo has waived its arguments

regarding the entire market value exception. Where

an appellant “fail[s] to challenge the district court’s

finding of waiver,” the appellate court is “precluded

from reaching the arguments” the district court found

waived. XL Specialty Ins. Co. v. Kiewit Offshore Servs.,

Ltd., 513 F.3d 146, 152 (5th Cir. 2008).

Although the district court in this case provided an

in-depth analysis of the entire market value exception

on the merits, it also found Trinseo waived the issue.

Specifically, the district court stated:

It is worthwhile to examine Trinseo’s position

on the entire market value rule in the broader

context of the litigation. Trinseo did not

request a jury instruction or question

pertaining to any interpretation of the entire

market value rule. In fact, it specifically

argued against including KBR’s proposed

instruction on the issue. At the January 22nd

charge conference, KBR requested an instruction on the entire market value rule[.] . . .

Trinseo objected, arguing that patent jury

instructions cannot be so easily thrown into a

trade secret case[] . . . . Consequently, the

Court did not include, and Trinseo did not

request, an instruction on the entire market

value based on either line of cases. Thus, it

waived its application.

Trinseo has challenged the district court’s conclusion

on the merits, but it makes no mention of the district

court’s finding of waiver. Trinseo’s failure to do so

precludes this court from now addressing the entire

market value issue. See id.

21a

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

driver” argument is another “thinly veiled entiremarket-value-rule argument,” which the district court

correctly held was waived and wrong on the merits.

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

driver” argument differs in any meaningful respect

from the entire market value rule, which is “a narrow

exception” to the apportionment requirement that

“allows for the recovery of damages based on the value

of an entire apparatus containing several features,

when the feature patented constitutes the basis for

customer demand.” LaserDynamics, Inc. v. Quanta

Comput., Inc., 694 F.3d 51, 67 (Fed. Cir. 2012) (citation

modified). The only case Trinseo cites that applied a

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

did so under the assumption that apportionment was

required. See EchoSpan, Inc. v. Medallia, Inc., No. 244751, 2025 WL 3046753, at *1 (9th Cir. Oct. 31, 2025)

(unpublished). In EchoSpan, the district court vacated

the jury’s unjust enrichment award because the jury

found the defendant misappropriated only one out of

nine alleged trade secrets and the plaintiff “did not

apportion this relief on a trade-secret-by-trade-secret

basis.” Id. The Ninth Circuit acknowledged that, “[i]n

a highly technical context, apportionment testimony

may be essential to provide a reasonable basis for

a jury to value a defendant’s gain.” Id. at *2

(distinguishing O2 Micro). But in EchoSpan, the

plaintiff ’s “trade secrets could be explained in lay

terms” and the jury heard evidence regarding “the

relative importance” of the jury-found trade secret to

the “system’s commercial value.” Id. at *2. Indeed, the

jury heard that only that jury-found secret was the

“‘core’ tool that ‘enables everything.’” Id. As a result,

22a

the jury in EchoSpan “could determine from the

evidence which alleged trade secrets would drive the

most value” in the defendant’s product. Id.

This case, which presents highly technical trade

secrets, is markedly different from EchoSpan. Here,

the jury found four trade secrets: the Process Control

Strategy, Phosgene Reactor, Oligomerization Reactor,

and Steam Devolatilization Process. At trial, Trinseo’s

expert testified that the Oligomerization Reactor and

Steam Devolatilization Process were among the

alleged trade secrets that “form[ed] the heart or the

core of the value” of Trinseo’s PC technology. That very

same expert testified that other, non-trade secret

components were the heart or core of the PC

technology, including the “thermal stabilizer,” “steam

nozzle,” and “atomizing nozzle.” A different expert

opined that “the oligomerization and agglomeration

were the core and the key elements, especially the

snake, the nozzles, [and] the thermal stabilizer.” This

testimony contrasts with the testimony in EchoSpan,

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

the system. See id. Importantly, Trinseo also presented

no evidence or methodology that would have allowed

the jury to ascribe any particular value to the juryfound trade secrets. Pastore admitted he offered no

opinion that would allow the jury to award a “royalty

value for” a particular “share” of a misappropriated

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

every trade secret” identified by Trinseo “was in fact

misappropriated by KBR.”

* * *

In sum, Trinseo was required to present evidence

that would have allowed the jury to award a

reasonable royalty that reflects “an apportionment of

profits based on an approximation of the actual value

23a

of the infringed device to the defendant,” or an

“apportioned amount” of the defendants’ profits

“designed to correspond to the actual contribution the

plaintiff ’s trade secret made to the defendant’s

commercial success.” See Univ. Computing, 504 F.2d at

537, 539. This rule is consistent with the “analogous

line of cases involving patent infringement,” id. at 535

(quoting Int’l Indus., 248 F.2d at 699), which require

apportionment “[w]hen the accused technology does

not make up the whole of the accused product.” Finjan,

879 F.3d at 1309. Because Trinseo only presented

damage estimates that assumed misappropriation of

ten alleged trade secrets, the jury had no basis for

awarding damages based on the misappropriation of

only the four trade secrets it found. The district court

did not err in vacating the jury’s award of damages

against KBR and the Harper Defendants.

KBR argues the district court erred in denying

judgment as a matter of law on the jury’s findings of

liability for trade secret misappropriation. We disagree.

KBR contends there is legally insufficient evidence

that Trinseo’s information qualified as “trade secrets ”

as that term is defined by the DTSA.

Under the DTSA, information constitutes a “trade

secret” where (1) “the owner thereof has taken

reasonable measures to keep such information secret,”

and (2) “the information derives independent economic

value, actual or potential, from not being generally

known to, and not being readily ascertainable through

proper means by, another person who can obtain

economic value from the disclosure or use of the

information.” 18 U.S.C. § 1839(3).

24a

First, KBR asserts Trinseo did not take reasonable

measures to keep its information a secret, citing four

instances that purportedly put Trinseo on notice that

its PC technology was publicly disclosed, and which

Trinseo did nothing to address. The first instance

cited by KBR occurred in August 2011, when SRI

published a report regarding Dow’s PC technology.

Second, in May 2014, Trinseo heard about rumored

ex-Dow employees “practicing outside confidentiality

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

Freeport plant closure, Harper told Duane that he was

doing consulting work with former Dow employees.

Finally, in May 2018, a member of the Tech Team told

Duane he should contact Harper if he was interested

in PC consulting work.

For each event cited by KBR, Trinseo has pointed to

competing evidence in the record. As to the SRI report,

Trinseo immediately requested a withdrawal, inquired

about sources, and worked with SRI to create a revised

report that did not contain protected information. In

addition, Trinseo assigned employees to work with

KBR to investigate the rumored ex-Dow employees. It

also had a “a standing instruction” with its employees

in China to report back relevant information. Duane

and Harper’s brief meeting at the Freeport plant

shows only that Trinseo was on notice that Harper was

doing consulting work; there is no evidence suggesting

Trinseo was on notice that Harper was using trade

secrets. Indeed, Duane testified that Harper did not

mention anything about “providing technology” and

that consulting alone did not have cause for concern.

And Trinseo sent a demand letter to Harper to

stop misappropriating Trinseo’s PC technology a year

after Duane received an email stating that Harper’s

25a

consulting involved PC. Viewing the evidence in the

light most favorable to the verdict, the jury had

sufficient evidence to conclude that Trinseo took

reasonable measures to protect its trade secrets.

Second, KBR argues that Trinseo’s trade secrets

were “generally known” because Harper had circulated

them in the PC industry for years before KBR acquired

the technology. “Secrecy is a relative term. The information may be known to several persons and yet still

be secret if third parties would be willing to pay for a

breach of trust in order to ascertain it.” Taco Cabana

Int’l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1125 (5th

Cir. 1991) (citation modified); see also Reingold v.

Swiftships, Inc., 126 F.3d 645, 650 (5th Cir. 1997)

(holding that information derived economic value from

not being generally known where “it would have been

extremely expensive and time consuming for anyone

to duplicate the [trade secret information] through

independent designing, planning, and construction or

by reverse engineering”).

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

secrets, the Harper Defendants had been disclosing

that information by using the LG plant drawings.

But the jury heard testimony that the ten claimed

trade secrets were not “generally known or publicly

disclosed.” Duane also testified he did not think it

would be possible for any engineer to “readily

ascertain” Trinseo’s trade secrets “without spending

much time, effort[,] or expense.” Indeed, Trinseo

presented evidence suggesting KBR did not believe it

could complete its PCMax technology without the

trade secret information held by the Harper

Defendants. In short, even though the trade secrets

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

26a

Harper Defendants’ disclosures, “third parties” like

KBR were still “willing to pay for a breach of trust in

order to ascertain [them].” See Taco Cabana, 932 F.2d

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

sufficient evidence that the Process Control Strategy,

Phosgene Reactor, Oligomerization Reactor, and

Steam Devolatilization Process were not generally

known.12

KBR also asserts there is legally insufficient

evidence that it misappropriated Trinseo’s technology,

attacking different components of the evidence for

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

Process Control Strategy, KBR contends there was no

evidence that the Tech Team had access to this

information. KBR also asserts there is insufficient

evidence of misappropriation of the Phosgene Reactor

because the jury heard Duane testify KBR did not use

this technology in its PCMax design. Finally, KBR

argues that the jury heard testimony that it either did

not acquire or did not use certain elements of the

KBR’s other arguments on this issue are also without merit.

As to the Process Control Strategy, KBR argues that Trinseo

failed to sufficiently define this secret because the jury heard

testimony that no particular hardware or software was misappropriated. But the jury heard ample evidence describing the Process

Control Strategy. For example, Duane defined it as the PC plant’s

“rules . . . of operation” and as an “overview” of how the plant runs.

KBR also argues that testimony that certain components of the

Phosgene Reactor, Oligomerization Reactor, and Steam Devolatilization Process had been publicly disclosed is fatal to Trinseo’s

trade secret claims. But the jury heard testimony that numerous

other non-disclosed elements comprised these trade secrets.

Viewing this evidence in the light most favorable to the verdict, a

reasonable jury could find Trinseo’s secrets were not generally

known.

27a

Oligomerization Reactor and Steam Devolatilization

Process.

A defendant can misappropriate a plaintiff ’s trade

secret under the DTSA by:

(A) acquisition of a trade secret of another by

a person who knows or has reason to know

that the trade secret was acquired by

improper means; or

(B) disclosure or use of a trade secret of

another without express or implied consent

by a person who—

(i) used improper means to acquire knowledge of the trade secret;

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

had reason to know that the knowledge of

the trade secret was—

(I) derived from or through a person who

had used improper means to acquire the

trade secret;

(II) acquired under circumstances giving

rise to a duty to maintain the secrecy of

the trade secret or limit the use of the

trade secret; or

(III) derived from or through a person

who owed a duty to the person seeking

relief to maintain the secrecy of the trade

secret or limit the use of the trade secret;

(iii) before a material change of the position

of the person, knew or had reason to know

that—

28a

(I) the trade secret was a trade secret;

and

(II) knowledge of the trade secret had

been acquired by accident or mistake[.]

18 U.S.C. § 1839(5).

Here, KBR ignores the competing evidence regarding

its misappropriation for each secret found by the jury.

For instance, Duane testified that KBR did not have

access to one particular software component of the

Process Control Strategy, but that “there were

elements of the process control strategy that were

included in the process design” used by KBR. There

was also testimony that KBR acquired, rather than

used, the Phosgene Reactor technology from the Tech

Team. See id. And, as described above, the evidence at

trial suggested the Oligomerization Reactor and

Steam Devolatilization Process comprised numerous

elements other than what was publicly disclosed. The

jury also heard testimony that KBR acquired the

Oligomerization Reactor design, which “was translated

from the PDP into [KBR’s] eventual engineering.” The

same is true of the Steam Devolatilization Process.

Weighing the evidence in the light most favorable to

the verdict, we find that the jury could reasonably

conclude that KBR misappropriated the Process

Control Strategy, Phosgene Reactor, Oligomerization

Reactor, and Steam Devolatilization Process.

* * *

Because sufficient evidence exists for the jury to

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

misappropriated those secrets, the district court did

not err in denying KBR’s motion for judgment as a

29a

matter of law concerning liability for trade secret

misappropriation.

The Harper Defendants argue that the district court

erred in denying judgment as a matter of law with

respect to the jury’s “alter ego” and statute of

limitations findings. Again, we disagree.

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

preponderance of the evidence that Stephen Harper is

responsible for the conduct of” both SHC and PCS.

The Harper Defendants argue there was insufficient

evidence for the jury to reach this conclusion, and that

the district court erred in finding otherwise. But the

district court determined it did not need to address

the alter ego issue, instead granting the Harper

Defendants’ motion for judgment as a matter of law

only on the issue of apportionment.

Notably, the jury was charged with answering the

alter ego question only if it awarded damages as to

SHC and PCS. Because we affirm the district court’s

decision to vacate the damages awarded against the

Harper Defendants, we need not address the alter ego

issue.

Next, the Harper Defendants argue the district

court erred in denying judgment as a matter of law on

their limitations defense. Specifically, they assert that

accrual of the limitations period under the DTSA does

not require that Trinseo knew the identity of the

misappropriator—it only requires that Trinseo knew

of the misappropriation, which occurred by 2014.

30a

The DTSA provides that claims must be brought

within three years of “the date on which the

misappropriation with respect to which the action

would relate is discovered or by the exercise of

reasonable diligence should have been discovered.” 18

U.S.C. § 1836(d) (emphasis added). In order for a claim

to accrue under the DTSA, the plaintiff must have

discovered the “misappropriation” as that term is

defined in the statute. As discussed, the DTSA defines

“misappropriation” as “acquisition of a trade secret of

another by a person who knows or has reason to know

that the trade secret was acquired by improper means.”

Id. § 1839(5)(A) (emphasis added). Alternatively, misappropriation is defined as “disclosure or use of a trade

secret of another . . . by a person who” (1) “used

improper means to acquire knowledge of the trade

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

secret was acquired or derived by particular means; or

(3) “before a material change of the position of the

person, knew or had reason to know that” that “the

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

the trade secret had been acquired by accident or

mistake.” Id. § 1839(5)(B) (emphasis added).

The question here is whether Trinseo discovered, or

should have discovered, the “misappropriation with

respect to which [this] action would relate” before

February 12, 2017. See id. § 1836(d). The Harper

Defendants assert that three events triggered the

limitations period: (1) the August 2011 SRI report, (2)

the May 2014 meeting with KBR wherein Trinseo

learned about “ex-Dow employees rumored to be

practicing outside confidentiality boundar[ies],” and

(3) the Freeport plant closure in 2014 where Harper

told Duane about his consulting practice.

31a

First, although the 2011 report may have put

Trinseo on notice that SRI potentially acquired trade

secret information, the evidence establishes that

Trinseo quickly asked SRI to take the report down,

asked about the sources, and collaborated on a revised

report that did not include proprietary information.

SRI told Trinseo the information was from “patents,

public documents[,] and various consultants,” but did

not disclose the identity of those consultants. Giving

deference to the jury’s verdict, there is sufficient

evidence that the SRI report did not cause Trinseo to

discover the “misappropriation with respect to which

the action” against Harper “would relate.” See id. In

other words, the jury could reasonably conclude

Trinseo did not discover “acquisition of a trade secret

. . . by a person who knows or has reason to know that

the trade secret was acquired by improper means” or

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

either “used improper means to acquire knowledge of

the trade secret” or “knew or had reason to know” the

knowledge of the trade secret was derived or acquired

under the circumstances prescribed by the statute. See

id. § 1839(5).

Second, although Trinseo learned about unidentified

ex-Dow employees potentially practicing outside

confidentiality boundaries in May 2014, this does not

establish as a matter of law that Trinseo learned about

the trade secret misappropriation—as defined by the

DTSA—that gave rise to Trinseo’s lawsuit against

Harper. Trinseo and KBR also agreed to work together

to investigate the rumored ex-Dow employees, and

Trinseo had a standing instruction with its employees

in China “to report back relevant information.” At

bottom, the Harper Defendants dispute whether

Trinseo’s efforts give rise to “reasonable diligence”—a

32a

question of fact that was properly left to the jury. See

Margolies v. Deason, 464 F.3d 547, 553 (5th Cir. 2006).

Third, there is competing evidence with respect to

Harper and Duane’s conversation during the closure of

the Freeport plant. Harper testified he told Duane he

was engaged in PC consulting, but Duane recalled that

Harper only mentioned consulting—not PC consulting.

A reasonable jury could conclude that a former

employee’s consulting work did not trigger a duty to

investigate. See Aspen Tech., Inc. v. M3 Tech., Inc., 569

F. App’x 259, 264 n.9 (5th Cir. 2014) (“[T]he limitations

period does not begin to run until a plaintiff knew or

should have known ‘that it was wrongfully injured,’

and there is nothing ‘wrongful in and of itself ’ for

employees to ‘leave their employ and compete with

their former employers.’” (quoting Pressure Sys. Int’l,

Inc. v. Sw. Rsch. Inst., 350 S.W.3d 212, 217 (Tex. App.—

San Antonio 2011, pet. denied))).

The jury had a reasonable basis for concluding that

Trinseo did not discover, nor could have discovered

through the exercise of reasonable diligence, Harper’s

first alleged misappropriation before February 12,

2017. The district court did not err in denying judgment as a matter of law on the Harper Defendants’

limitations defense.

III

Trinseo asserts that the district court erred in

denying its motion for a new trial on damages, arguing

that the district court retroactively applied new rules

of law by requiring apportionment.

“A district court has discretion to grant a new trial

under Rule 59(a) of the Federal Rules of Civil

Procedure when it is necessary to do so ‘to prevent an

injustice.’” Seibert v. Jackson Cnty., 851 F.3d 430, 438

33a

(5th Cir. 2017) (quoting United States v. Flores, 981

F.2d 231, 237 (5th Cir. 1993)). The district court’s

decision is reviewed for abuse of discretion. Id.

“[R]eview of the denial of a motion for new trial is

especially deferential.” Thompkins v. Belt, 828 F.2d

298, 302 (5th Cir. 1987).

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

held that “the proper measure of damages in the case

of a trade secret appropriation is to be determined by

reference to the analogous line of cases involving

patent infringement . . . .” Univ. Computing, 504

F.2d at 535 (quoting Int’l Indus., 248 F.2d at 699).

University Computing also cited general apportionment principles. Id. at 537, 539. KBR raised the

apportionment rule in a motion to exclude expert

testimony approximately one year before trial. In

addressing KBR’s argument, the district court

expressly warned Trinseo—more than a month before

trial and multiple times thereafter—that its “all-ornothing approach” was a “gamble” and that the

testimony of Trinseo’s expert would be “totally

undermined” if Trinseo failed to obtain a verdict on all

ten of its alleged trade secrets. Trinseo has not shown

that the district court abused its discretion by denying

its motion for new trial. Nor has it shown that its

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

of longstanding precedent and the district court’s

warning warrants a new trial to prevent injustice.

Next, Trinseo appeals the district court’s summary

judgment ruling on its misappropriation of confidential

information claims, arguing that TUTSA does not

34a

preempt claims asserted in the alternative to trade

secret claims.13

We review the grant of summary judgment de novo.

Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir.

2016). Summary judgment is proper “if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a). “A genuine

dispute as to a material fact exists when, after

considering the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits, a

court determines that the evidence is such that a

reasonable jury could return a verdict for the party

opposing the motion.” Haverda v. Hays Cnty., 723 F.3d

586, 591 (5th Cir. 2013).

The Texas Supreme Court has not addressed the

extent to which TUTSA preempts misappropriation of

confidential information claims premised on the

same information as misappropriation of trade secret

claims, so we “must make an ‘Erie guess’ as to how it

would do so.” Brand Servs., L.L.C. v. Irex Corp., 909

F.3d 151, 157 (5th Cir. 2018) (footnote omitted)

(quoting In re Katrina Canal Breaches Litig., 495 F.3d

191, 206 (5th Cir. 2007)); see also Erie R.R. Co. v.

In the alternative, Trinseo asks this court to certify the

question of whether TUTSA preempts common law claims for

misappropriation of confidential information to the Texas

Supreme Court. Because there is persuasive authority from state

appellate courts that provide guidance on the issue presented, we

decline to do so. See Associated Mach. Tool Techs. v. Doosan

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

(unpublished) (“We have at times, but not invariably, applied

certain factors in deciding whether to certify: (1) the existence of

sufficient sources of state law; (2) the degree to which considerations of comity are relevant; and (3) practical limitations.”).

35a

Tompkins, 304 U.S. 64 (1938). We first look to the

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

the decisions of state intermediate courts.” Brand

Servs., 909 F.3d at 157.

TUTSA “displaces conflicting tort, restitutionary,

and other law of this state providing civil remedies for

misappropriation of a trade secret,” except that the

statute does not preempt “contractual remedies,”

“criminal remedies,” or “other civil remedies that are

not based upon misappropriation of a trade secret.”

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.007. TUTSA

defines a “trade secret” as “all forms and types of

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

has taken reasonable measures under the circumstances to keep the information secret,” and (2) “the

information derives independent economic value,

actual or potential, from not being generally known to,

and not being readily ascertainable through proper

means by, another person who can obtain economic

value from the disclosure or use of the information.”

Id. § 134A.002(6). As with the Uniform Trade Secrets

Act (UTSA), TUTSA provides it “shall be applied and

construed to effectuate its general purpose to make

uniform the law with respect to the subject of this

chapter among states enacting it.” Id. § 134A.008.

In Brand Services, this court interpreted the

preemption provision in the Louisiana Uniform Trade

Secrets Act (LUTSA), which is substantively identical

to TUTSA’s preemption provision, to determine whether

a common-law conversion claim for confidential information was preempted. 909 F.3d at 158–59; compare

LA. STAT. ANN. § 51:1437 with TEX. CIV. PRAC. & REM.

CODE ANN. § 134A.007. We held that “the plain text of

LUTSA would preclude a civilian law conversion claim

36a

involving confidential information that qualifies as a

trade secret under LUTSA.” Brand Servs., 909 F.3d at

158. But given that “courts have come to varying

conclusions about the [UTSA’s] preemption provision’s

intended scope,” this court found it necessary to “look

to intermediate state court decisions” to determine

whether claims premised on confidential information

that is not a trade secret are also preempted. Id.

Because “Louisiana appellate courts have twice held

that LUTSA does not preempt where non-trade secret

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

preempt civilian law claims for conversion of information that does not constitute a trade secret under

LUTSA.” Id. at 159.

Like LUTSA, TUTSA preempts claims premised on

misappropriation of a trade secret and does not

preempt “civil remedies that are not based upon

misappropriation of a trade secret.” TEX. CIV. PRAC. &

REM. CODE ANN. § 134A.007 (emphasis added). But the

text does not answer the question of whether a

plaintiff can plead misappropriation of confidential

information in the alternative to a trade secret claim,

where both claims are admittedly premised on the

same information. And, as noted in Brand Services,

“courts interpreting their respective states’ versions of

the [UTSA] have not uniformly applied UTSA’s

preemption provision.” 909 F.3d at 158. Under these

circumstances, it is appropriate also to look to Texas

intermediate court decisions. See id.

Texas intermediate courts have consistently held

that “a common law claim is preempted by TUTSA

when the gravamen of the claim duplicates a TUTSA

claim.” Reynolds v. Sanchez Oil & Gas Corp., No. 0118-00940-CV, 2023 WL 8262764 at *16 (Tex App —

37a

Houston [1st Dist ] Nov 30, 2023 no pet.) (finding that

breach of fiduciary duty claims were preempted to the

extent based on misappropriation of trade secrets and

confidential information); see also Super Starr Int’l,

LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829, 843

(Tex. App.—Corpus Christi–Edinburg 2017, no pet.)

(holding that breach of fiduciary duty claims premised

on confidential and proprietary information were

preempted because they “duplicate[d] [the plaintiff ’s]

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

HouseCanary, Inc., 612 S.W.3d 517, 533 (Tex. App.—

San Antonio 2020, pet. denied) (vacating a jury’s fraud

finding and holding the claim was preempted to the

extent the “foundation” of the claim was “an assertion

that [the defendant] misappropriated [the plaintiff ’s]

trade secrets”); Coe v. DNOW LP, 718 S.W.3d 338, 354–

55, 369–70 (Tex. App.—Houston [14th Dist.] 2025, pet.

filed) (holding that a civil conspiracy theory of trade

secret liability, as well as fiduciary duty claims

premised on trade secret misappropriation, were

preempted). In other words, TUTSA “preempts claims

that rely on the same facts as a trade-secretmisappropriation claim . . . .” Coe, 718 S.W.3d at 353.

In determining whether a claim is preempted, Texas

courts look to “the substance of the facts alleged rather

than to the way a claim is pleaded.” Id. at 355.

For instance, even where a claim is premised on

“confidential information” rather than trade secrets,

that claim is preempted if “as pleaded” by the

plaintiffs, “the confidential and proprietary information at issue . . . falls within TUTSA’s definition of a

trade secret.” Reynolds, 2023 WL 8262764, at *18. “[A]s

the Supreme Court of Texas has recognized in other

contexts, ‘the law should not reward artful pleading.’”

Coe, 718 S.W.3d at 354 (quoting Pitts v. Rivas, 709

S.W.3d 517, 525 (Tex. 2025)).

38a

Here, Trinseo asserted its misappropriation of confidential information claims in the “alternative” and

based those claims entirely on the information that it

alleged constituted trade secrets. Looking to the

substance of the claims, Trinseo alleged that it used

the confidential information in its business, which

provided “an opportunity to obtain an advantage over

competitors.” Trinseo further asserted that it “owned

this confidential information and took reasonable

steps under the circumstances to keep that information substantially secret.” A Texas intermediate

court has determined that nearly identical allegations

“show[ed] that even the confidential and proprietary

information at issue . . . derives independent economic

value from not being generally known or readily

ascertainable by proper means and is the subject of

reasonable efforts to maintain its secrecy.” See

Reynolds, 2023 WL 8262764, at *18 (citing TEX. CIV.

PRAC. & REM. CODE ANN. § 134A.002(6)). In other

words, “as pleaded” by Trinseo, even the information

that it alleges is confidential “falls within TUTSA’s

definition of a trade secret.” See id. And regardless of

the labels chosen by Trinseo, the substance of its

common law claims “duplicate” its trade secret claims.

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

misappropriation of confidential information claims

“rely on the same facts as [its] trade-secret-misappropriation claim[s],” those claims are preempted by

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

The district court did not err in granting summary

judgment on Trinseo’s misappropriation of confidential information claims.

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

permanent injunction, arguing that Trinseo failed to

39a

establish the necessary elements to obtain injunctive

relief.

A grant of a permanent injunction is reviewed for

abuse of discretion. Young Conservatives of Tex. Found.

v. Smatresk, 73 F.4th 304, 308 (5th Cir. 2023). “The

district court abuses its discretion if it ‘(1) relies on

clearly erroneous factual findings . . . , (2) relies on

erroneous conclusions of law . . . , or (3) misapplies the

factual or legal conclusions when fashioning its

injunctive relief.’” Spirit Aerosystems, Inc. v. Paxton,

142 F.4th 278, 284 (5th Cir. 2025) (quoting BNSF Ry.

Co. v. Int’l Ass’n of Sheet Metal, Air, Rail & Transp.

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

2020)). “The district court’s order is entitled to

deference, but we review de novo any questions of law

underlying the decision.” BNSF Ry. Co., 973 F.3d at

334.

To obtain a permanent injunction, a plaintiff must

establish:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as

monetary damages, are inadequate to compensate for that injury; (3) that, considering

the balance of hardships between the plaintiff

and defendant, a remedy in equity is warranted; and (4) that the public interest would

not be disserved by a permanent injunction.

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

(2006).

As to the first factor, Trinseo has demonstrated it

will suffer harm by the continued use of its trade

secrets. For example, Trinseo presented evidence that

it decided to slow down its PC licensing efforts to avoid

“get[ting] additional interfacial [PC] into the market”

40a

because doing so may have an “effect on the market.”

But KBR plans to continue putting Dow-like PC

technology in the market by opening additional plants.

This threat of disclosure constitutes irreparable

harm.14 See Heil Trailer Int’l Co. v. Kula, 542 F. App’x

329, 336 (5th Cir. 2013) (unpublished) (noting that,

under Texas law, the threat of trade secret disclosure

constitutes irreparable injury).

As to the second factor, KBR argues Trinseo had an

adequate remedy at law because monetary damages

would sufficiently compensate for Trinseo’s injuries

caused by KBR’s misappropriation. But ample evidence at trial showed KBR intended to continue

licensing its PCMax technology. A monetary remedy

would not be adequate to protect Trinseo from that

future harm.

For the balance of hardships, KBR complains about

costs or inconvenience associated with complying with

an injunction. But “when the potential harm to each

party is weighed, a party can hardly claim to be

harmed where it brought any and all difficulties

occasioned by the issuance of an injunction upon

itself.” Texas v. United States, 809 F.3d 134, 187 n.203

KBR argues Trinseo has not demonstrated irreparable harm

because it delayed seeking injunctive relief until after trial and

because Trinseo long ago exited the PC business. Delay in seeking

an injunction may be one factor that weighs against granting an

injunction, but it is not determinative. See Boire v. Pilot Freight

Carriers, Inc., 515 F.2d 1185, 1193 (5th Cir. 1975) (finding that the

movant’s three-month delay in seeking injunctive relief “is not

determinative of whether relief should be granted”). Regardless,

Trinseo contemplated seeking injunctive relief from the beginning of its lawsuit, as its second amended complaint includes a

request for a permanent injunction. Trinseo also has not wholly

exited the PC market, as evidenced by its November 2024 PC

licensing deal with a company in India.

41a

(5th Cir. 2015) (citation modified) (quoting Kos

Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 728 (3d Cir.

2004)). And Trinseo presented evidence that KBR’s

continued trade secret misappropriation is harmful

because it devalues Trinseo’s PC technology.

On the final factor, protection against the misappropriation of trade secrets serves the public

interest. See Aspen Tech., 569 F. App’x at 273 (affirming

the grant of a permanent injunction in a trade secret

case in part because “it was in the interest of public

policy to prohibit the sale and use of [the defendant’s]

products . . . that were derived from the improper

misappropriation of trade secrets”). It serves the

public interest to protect against KBR’s further

misappropriation of Trinseo’s secrets.

The district court did not abuse its discretion in

granting the permanent injunction.

* * *

The district court’s judgment is in all respects

AFFIRMED.

42a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[FILED: March 4, 2026]

————

No. 24-20460

————

TRINSEO EUROPE GMBH,

Plaintiff—Appellant/Cross-Appellee,

versus

KELLOGG BROWN & ROOT, L.L.C.; STEPHEN HARPER,

also known as STEVE HARPER; STEVE HARPER

CONSULTING, INCORPORATED; POLYCARBONATE

CONSULTING SERVICES, INCORPORATED,

Defendants—Appellees/Cross-Appellants.

————

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-478

————

ON PETITION FOR REHEARING

AND REHEARING EN BANC

Before SMITH, STEWART, and RAMIREZ, 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 Priscilla Richman, did not participate in the consideration

of the rehearing en banc.

43a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[ENTERED: September 11, 2024]

————

CIVIL ACTION NO. 4:20-CV-0478

————

TRINSEO, S.A.,

Plaintiff,

STEPHEN HARPER, et al.,

Defendants.

————

SEALED ORDER

The Court issues this Order following a jury trial in

the above-styled matter. Plaintiff Trinseo Europe

GmbH’s (“Trinseo” or “Plaintiff ”) brought this lawsuit

under the Defend Trade Secrets Act (“DTSA”) alleging

misappropriation of ten trade secrets related to

polycarbonate manufacturing (“PC”). Trinseo sued

Defendant Kellogg Brown & Root, LLC (“KBR”),

Defendants Steve Harper, Steve Harper Consulting,

Inc. (“SHC”), Polycarbonate Consulting Services. Inc.

(“PCS”) (collectively, the “Harper Defendants”), and

Defendants William Davis and Polycarbonate Resins

Consulting, LLC (“PRC”) (collectively, the “Davis

Defendants”). Upon considering the parties’ respective

post-trial motions, the Court hereby AFFIRMS the

jury’s finding of liability as to KBR and the Harper

Defendants, VACATES the jury’s award of

$50,000,000.00 in reasonable royalty damages against

44a

KBR, VACATES the jury’s award of $21,206,132.00

in unjust enrichment damages against KBR, and

VACATES the jury’s award of $5,480,523.00 against

the Harper Defendants. The Court will enter a

separate take-nothing Final Judgment and will also

enter a Permanent Injunction in separate orders.

I. Trial

After twelve days of trial and nearly three days of

deliberation, the jury returned a unanimous verdict.

(Doc. No. 321).

Evidence. There was evidence that clearly established that the Harper Defendants and KBR used

confidential PC manufacturing drawings from the

Dow Chemical Company (“Dow”). While primarily

originating at Dow, that intellectual property

eventually became Trinseo’s, and at all pertinent times

relating to the allegations herein, it remained

Trinseo’s intellectual property. These Dow drawings,

designs, and specifications made up Dow’s plant

design package for PC manufacturing that was

generally believed to be the best in the industry at the

time it was created. The evidence demonstrated that

various portions of this PC package design were taken

by former employees without Dow’s or Trinseo’s

permission. Also without permission, the Harper

Defendants knowingly used the PC information in

consulting and KBR used the PC information in

designing their own PC manufacturing package

(“PCMax”), which it ultimately licensed in two Chinese

projects—Cangzhou and Pingmei. There is little to no

doubt that Trinseo established liability in terms of

misappropriation; the real question is whether that

misappropriation caused Trinseo any damage and

whether Trinseo has proved its damages as required

by law.

45a

Liability. The jury found that only four out of

Trinseo’s ten claimed trade secrets were in fact trade

secrets. Specifically, the jury found the following to be

trade secrets: (1) Process control strategy and Concepts

and Control Algorithms, (2) Phosgene Reactor Design

and Associated Pressure Vessel Containment, (3)

Continuous Plug Flow Oligomerization Reactor Inside

Pressure Vessel Containment (with static mixer

design), and (4) Steam Devolatization Process.1 The

jury further found that KBR and the Harper

Defendants had misappropriated these four trade

secrets, while finding that the Davis Defendants had

not misappropriated any trade secrets.

Damages. As for compensatory damages against

KBR, the jury awarded $50,000,000.00 in reasonable

royalty damages and $21,206,132.00 in unjust enrichment damages. As for compensatory damages against

the Harper Defendants, the jury awarded $0 against

Steve Harper, personally, $2,930,817.00 against SHC,

and $2,549,706.00 against PCS in unjust enrichment

damages. The jury did, however, find that Steve

Harper was personally responsible for the conduct of

SHC and PCS. The jury did not award any exemplary

damages against any defendant.

Defenses. Finally, the jury did not find that either

of the alleged affirmative defenses barred recovery.

Specifically, the jury did not find that Trinseo

discovered, or should have discovered through the

exercise of reasonable diligence, the misappropriation

By contrast, the following six claimed trade secrets were

found not to be trade secrets: Raw materials Specifications/

Composition, Thermal Stabilizer Addition System, Polymer

Solution Atomizer Nozzle, “Snake” Design, Polycarbonate Product

Composition, Formulas, or “Recipes,” and Negative and Positive

Knowledge.

46a

before the statute of limitations ran, and the jury

likewise did not find that the doctrine of laches

applied.2

II. Pending Motions

After Trinseo had rested, Defendants filed several

Motions for Judgment as a Matter of Law. (Docs. Nos.

292, 295, 300). Defendants argued the merits of these

motions outside the presence of the jury. The Court

overruled the motions and permitted the case to

continue. Defendants then put on their evidence. After

the Defendants rested and after three days of

deliberation, the jury returned its verdict and was

dismissed. The parties engaged in extensive briefings

regarding the effect of the jury’s findings. In total,

there are five pending post-trial motions, each with

responses, replies, and sur-replies. The pending motions

are: 1) KBR’s Motion for FRCP 50(b) Judgment as a

Matter of Law and Motion for FRCP 52(c) Judgment

on Partial Findings (Doc. No. 326); 2) Harper Defendants’

Motion for FRCP 50(b) Judgment as a Matter of Law

and Motion for FRCP 52(c) Judgment on Partial

Findings (Doc. No. 334); 3) KBR’s Alternative Motion

for New Trial or Remittitur (Doc. No. 350); 4) Trinseo’s

Motion for Entry of Final Judgment (Doc. No. 328); and

5) Trinseo’s Motion for Entry of Permanent Injunction

(Doc. No. 330). The Court will, to an extent, address the

motions in the order listed above; however, many of

these motions discuss overlapping issues. For example,

the issue of apportionment is a common thread. While

It is uncertain whether the common law doctrine of laches

applies to claims for misappropriation under the DTSA. The

Court notes that in submitting the question to the jury, it made

no determination regarding whether the defense was, in fact,

viable. Given that the jury answered the question “no” as to each

Defendant, the Court need not reach this question.

47a

the Court will address each essential issue raised by

the motions, it will not necessarily do so in the order

in which the parties raised them.

III. Legal Standards

a. Judgment as a Matter of Law

Judgment as a matter of law is appropriate if there

is no “legally sufficient evidentiary basis” for “a

reasonable jury . . . to find for the party on that issue”

on which it prevailed at trial. Fed. R. Civ. P. 50(a);

Laxton v. Gap Inc., 333 F.3d 572, 577 (5th Cir. 2003).

“Evidence is legally insufficient where the facts and

inferences point so strongly and overwhelmingly in

favor of the moving party that reasonable jurors could

not arrive at a contrary verdict.” N. Cypress Med. Ctr.

Operating Co. v. Aetna Life Ins., 898 F.3d 461, 473 (5th

Cir. 2018) (internal quotes and citation omitted).

Courts “accord great deference to the jury’s verdict

when evaluating the sufficiency of the evidence.”

Thomas v. Tex. Dep’t of Crim. Just., 220 F.3d 389, 392

(5th Cir. 2000). The court “must examine the evidence

as a whole,” MultiPlan, Inc. v. Holland, 937 F.3d 487,

494 (5th Cir. 2019), and “draw all reasonable

inferences in the light most favorable to the verdict,”

Allstate Ins. v. Receivable Fin. Co., 501 F.3d 398, 405

(5th Cir. 2007) (internal quotes and citation omitted).

In that light, the court asks whether the state of proof

is such that reasonable and impartial minds could

reach the conclusion the jury expressed in its verdict.”

Am. Home Assur. Co. v. United Space All., LLC, 378

F.3d 482, 487 (5th Cir. 2004) (same). In doing so, the

court must “credit[] the non-moving party’s evidence

and disregard[] all evidence favorable to the moving

party that the jury is not required to believe.” Apache

Deepwater, L.L.C. v. W&T Offshore, Inc., 930 F.3d 647,

48a

653 (5th Cir. 2019) (same). It “may not make credibility

determinations or weigh the evidence, as those are

jury functions.” Fairchild v. All Am. Check Cashing,

Inc., 815 F.3d 959, 966 (5th Cir. 2016) (same).

b. Motion for New Trial

Rule 50 also provides that a party “may include an

alternative or joint request for a new trial under Rule

59.” Fed. R. Civ. P. 50(b); Long v. Shultz Cattle Co., 881

F.2d 129, 132 (5th Cir. 1989) (An alternative motion for

a new trial “may be granted even if the moving party

is not entitled to judgment as a matter of law.”). Rule

59(a) provides that a court may grant a new trial “for

any reason for which a new trial has heretofore been

granted in an action at law in federal court.” Fed. R.

Civ. P. 59(a)(1)(A), Though undefined by the Rule, a

district court may grant a new trial if, for example, it

finds that “the verdict was against the weight of the

evidence,” or “the damages awarded were excessive.”

In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant

Prod. Liab. Litig., 888 F.3d 753, 784 (5th Cir. 2018)

(brackets, internal quotes, and citation omitted). “A

motion for a new trial should not be granted unless the

verdict is against the great weight of the evidence, not

merely against the preponderance of the evidence.”

Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 497 (5th Cir.

2002).

The decision to grant or deny a motion for a new

trial, including the determination of whether a verdict

is against the great weight of the evidence, is a

question committed to the district court’s sound

discretion. Six Dimensions, Inc. v. Perficient, Inc., 969

F.3d 219, 230 (5th Cir. 2020); Foradori v. Harris, 523

F.3d 477, 503–04 (5th Cir. 2008). This discretion is even

broader when the district court denies, rather than

grants, such a motion. Compare Cates v. Creamer, 431

49a

F.3d 456, 460 (5th Cir. 2005) (“Where a motion for a

new trial is granted, we scrutinize that decision more

closely,” because “the broad discretion allowed to the

trial court is tempered by the deference due to a jury”

(internal quotes and citation omitted)), with

Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269

(5th Cir. 1998) (“It goes without saying that review of

the denial of a new trial motion is more limited than

when one is granted. The denial will be affirmed

unless, on appeal, the party that was the movant in

district court makes a clear showing of an absolute

absence of evidence to support the jury’s verdict, thus

indicating that the trial court had abused its

discretion in refusing to find the jury’s verdict contrary

to the great weight of the evidence.” (internal quotes

and citation omitted)).

IV. Analysis

a. KBR’s Motion for FRCP 50(b) Judgment as a

Matter of Law and Motion for FRCP 52(c)

Judgment on Partial Findings (Doc. No. 326)

In its omnibus 46-page motion, KBR manages to

raise an inordinate number of issues with the trial.

While the Court appreciates KBR’s thoroughness, it

finds some of these issues more meritorious than

others and will only address those. Broadly speaking,

KBR objects that there is legally insufficient evidence

to support the jury’s finding of liability, reasonable

royalty

compensatory

damages,

and

unjust

enrichment compensatory damages, and that the

jury’s findings on the statute of limitations and laches

defenses were contrary to the evidence.

50a

i. Objections Regarding Jury’s Liability

Findings: Trade Secret Status, Misappropriation, Statute of Limitations Defense,

and Laches Defense

The Court first addresses what it considers to be

KBR’s least meritorious objections—those regarding

the jury’s findings on liability. These include the jury’s

finding of the trade secret status and misappropriation

of the four found trade secrets, the inapplicability of

the statute of limitations defense, and the

inapplicability of the laches defense, assuming it is a

permitted defense. As noted above, the Court must

draw all inferences in the light most favorable to the

verdict. The presentation of testimony and exhibits in

this case was extensive and time-consuming, and the

jury was attentive and thorough. Moreover, the Court

previously denied KBR’s motion for summary

judgment on many of the same issues it now raises (for

instance, that Trinseo did not take reasonable

measures to protect its trade secrets). (Doc. No. 238).

Having heard evidence at trial, and having reviewed

the trial transcript and exhibits, the Court finds that

the jury’s liability determinations and affirmative

defense determinations are clearly supported by

evidence.3 In fact, these findings are supported by an

abundance of evidence. The Court therefore denies

KBR’s motion as to its objections regarding the jury’s

finding of trade secret status, the jury’s finding of

misappropriation of those trade secrets, and the jury’s

finding that the affirmative defenses (statute of

limitations and laches) did not bar Trinseo’s claims.

See Trinseo’s Response Brief (Doc. No. 354, 34-58) for its

recounting of the specific supporting evidence refuting KBR’s

challenges.

51a

ii. Objections Regarding Jury’s Reasonable

Royalty Award

The heart of KBR’s objections, however, cannot be so

easily addressed. These objections concern the jury’s

award of compensatory damages, both reasonable

royalty damages and unjust enrichment damages, and

whether those two awards are supported by

appropriate evidence. Both in pretrial proceedings and

at trial, Trinseo took an all-or-nothing approach to its

damages models; it provided one lump sum for

damages related to its entire PC technology package

that included all ten alleged trade secrets.4 Trinseo did

not divide up the value of its PC package per trade

secret or otherwise provide evidence that would enable

the jury to place a dollar value to each individually

alleged trade secret.5 Moreover, Trinseo did not

provide a method for calculating the percentage of the

total value of the PC package that would be

attributable to each trade secret.6 Prior to trial, the

Thomas Pastore, Trinseo’s damages expert, testified on cross

examination: “I have not done an individual valuation of each of

the trade secrets.” (Jan. 17 p.m. at 158:10-11).

Q: “So if the jury is trying to find out what the value of

Trinseo’s alleged snake design trade secret is all by itself, they

can’t take your word for it, right?” A: “I’ve not done that. I’ve not

done a separation of value. Trinseo doesn’t sell a la carte its trade

secrets.” (Pastore cross examination, Jan. 17 p.m. at 155:24156:5).

Q: “I want the jury to understand whether or not you’re

offering them any opinion that would allow them if they don’t find

that each and every trade secret that Mr. Duane identified as a

trade secret was in fact misappropriated by KBR, how are they

supposed to determine a smaller amount of [damages] for that

share of the trade secrets? You don’t offer any opinion like that,

do you Mr. Pastore?” A: “I don’t have that opinion at this time.”

(Id. at 157:3-11).

52a

Court warned Trinseo that this approach would be a

gamble, given that the jury could find (and

subsequently did find) less than all ten trade secrets

to have been misappropriated, in which case any

damage figure may be unsupported. See (Doc. No. 224).

This is exactly what happened at trial. The jury

rejected six of Trinseo’s alleged trade secrets and

found that only four of the ten were in fact trade

secrets that had been misappropriated. While a jury,

like the one here, may be properly instructed to award

damages only for those trade secrets that it found to

have been misappropriated, a proper instruction

cannot automatically protect the jury’s award if the

jury had no evidentiary basis to reduce or apportion

that award to account for four out of ten alleged trade

secrets. That is what happened in this case. Now, the

parties dispute whether, and to what extent, apportionment is required in a trade secrets case like this

one, in which the jury finds liability on some but not

all of the alleged trade secrets. KBR argues that

apportionment is required unless the “entire market

value” exception applies, and that Trinseo failed to

provide the proof needed to invoke this exception to

apportionment. Consequently, the jury’s reasonable

royalty award is unsupported by evidence. By contrast,

Trinseo argues that strict apportionment is not

generally required and/or that it otherwise satisfied

the entire market value exception7 to apportionment.

Though Trinseo does not actually use the term “entire market

value” rule in its briefings until the sur-reply to KBR’s Motion for

New Trial/Remittitur, Trinseo presents arguments and cases that

implicate the rule. The Court will therefore refer to Trinseo’s

arguments using this phrase as it is the legally correct

characterization of its arguments. Moreover, the Court will

address certain arguments and cases raised in the New

53a

Consequently, the jury’s reasonable royalty award is

supported by evidence.

At a high level of generality, KBR argues that the

jury’s award is wholly unsupported by

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