Respondents Brief — Trinseo Europe GmbH, Petitioner v. Kellogg Brown & Root, L.L.C., et al.
Supreme Court briefAug 11, 2026
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No. 25-1373
In The
Supreme Court of the United States
___________________________________________________________________________
TRINSEO EUROPE GMBH,
Petitioner,
v.
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
___________________________________________________________________________
BRIEF IN OPPOSITION
___________________________________________________________________________
GEOFFREY L. HARRISON
MATTHEW C. BEHNCKE
ABIGAIL C. NOEBELS
KATHERINE E. DREWS
SUSMAN GODFREY L.L.P.
1000 Louisiana Street
Suite 5100
Houston, Texas 77002
WARREN W. HARRIS
Counsel of Record
WALTER A. SIMONS
BRACEWELL LLP
711 Louisiana Street
Suite 2300
Houston, Texas 77002
(713) 223-2300
warren.harris@bracewell.com
Counsel for Respondent, Kellogg Brown & Root, L.L.C.
(additional counsel listed on inside cover)
JARED TYLER
BENJAMIN F. FOSTER
FOSTER YARBOROUGH
KILLINGSWORTH PLLC
440 Louisiana Street
Suite 1800
Houston, Texas 77002
Counsel for Respondents,
Stephen Harper, also known as Steve Harper;
Steve Harper Consulting, Incorporated; and
Polycarbonate Consulting Services, Incorporated
i
QUESTION PRESENTED
In 2019, petitioner Trinseo Europe GmbH
(“Trinseo”) sued respondent Kellogg Brown & Root,
LLC (“KBR”) for allegedly misappropriating ten purported trade secrets related to its polycarbonate technology. Despite explicit warnings from the district
court, Trinseo pursued damages on an “all-or-nothing” basis; it provided the jury with a lump-sum damages calculation for all ten alleged trade secrets, without any reference to the value of any subset of the purported secrets. That strategy did not pay off. The jury
rejected Trinseo’s claims with respect to the majority
of the ten purported trade secrets. While the jury
awarded millions of dollars in damages for the four
trade secrets it found, the district court set aside the
award as mere guesswork without evidentiary basis
due to Trinseo’s all-or-nothing approach to damages.
The court thus awarded only injunctive relief. The
Fifth Circuit affirmed, holding that the jury had no
reasonable basis to award damages with respect to
the four allegedly misappropriated trade secrets because Trinseo provided the jury with no evidence or
methodology to valuate damages for them.
The question presented is:
Whether a trade-secrets plaintiff should be excused from the consequences of pursuing an all-ornothing damages theory when the jury rejects the majority of the purported trade secrets.
ii
PARTIES TO THE PROCEEDING
Petitioner Trinseo Europe GmbH was the plaintiff
in the U.S. District Court for the Southern District of
Texas and the appellant/cross-appellee in the U.S.
Court of Appeals for the Fifth Circuit.
Respondents Kellogg Brown & Root, LLC, Stephen Harper, Steve Harper Consulting, Inc., and Polycarbonate Consulting Services, Inc. were defendants
in the U.S. District Court for the Southern District of
Texas and appellees/cross-appellants in the U.S.
Court of Appeals for the Fifth Circuit.
iii
CORPORATE DISCLOSURE STATEMENT
Kellogg Brown & Root LLC is a direct wholly
owned subsidiary of KBR Holdings, LLC. KBR Holdings, LLC is a direct wholly owned subsidiary of
KBR, Inc. KBR Inc. is a publicly held company whose
shares are traded on the New York Stock Exchange
(NYSE: KBR) and has no parent corporation. KBR,
Inc. is a publicly held corporation that indirectly owns
10% or more of Kellogg Brown & Root LLC’s stock.
Steve Harper Consulting, Inc. and Polycarbonate
Consulting Services, Inc. are closely held companies
wholly owned by Stephen Harper. Neither corporation is a publicly held company.
iv
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED ........................................ i
PARTIES TO THE PROCEEDING .......................... ii
CORPORATE DISCLOSURE STATEMENT ......... iii
TABLE OF AUTHORITIES ...................................... v
INTRODUCTION ......................................................1
STATEMENT OF THE CASE ...................................4
A. Legal Background .......................................4
B. Factual Background ....................................6
C. Procedural History ....................................10
REASONS FOR DENYING THE PETITION.........14
I.
There
Is
No
Circuit
Split
On
Apportionment Of DTSA Trade-Secret
Damages. ..........................................................16
II.
The Decision Below Correctly Affirmed
That Trinseo Failed To Present Adequate
Evidence To Support The Jury’s Damages
Award. ..............................................................19
III. This Case Is A Poor Vehicle To Address
Trinseo’s Misplaced Concerns. ........................28
CONCLUSION .........................................................30
v
TABLE OF AUTHORITIES
PAGE(S)
CASES
Caudill Seed & Warehouse Co. v.
Jarrow Formulas, Inc.,
53 F.4th 368 (6th Cir. 2022) ................................ 17
EchoSpan, Inc. v. Medallia, Inc.,
2025 WL 3046753 (9th Cir. Oct. 31, 2025) ......... 18
Galloway v. United States,
319 U.S. 372 (1943) .............................................. 29
Garretson v. Clark,
111 U.S. 120 (1884) ........................... 4-5, 20-21, 27
O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
399 F. Supp. 2d 1064 (N.D. Cal. 2005), aff’d,
221 F. App’x 996 (Fed. Cir. 2007) .......................... 6
Omega Patents, LLC v. CalAmp Corp.,
13 F.4th 1361 (Fed. Cir. 2021) ............................ 26
Sabre GLBL, Inc v. Shan,
779 F. App’x 843 (3d Cir. 2019) ......................16-17
Tex. Advanced Optoelectronic Sols., Inc.
v. Renesas Elecs. Am., Inc.,
895 F.3d 1304 (Fed. Cir. 2018) .............................. 6
Univ. Computing Co. v.
Lykes-Youngstown Corp.,
504 F.2d 518 (5th Cir. 1974)............................ 5, 20
vi
TABLE OF AUTHORITIES
(continued)
PAGE(S)
Zenith Radio Corp. v. Hazeltine Rsch., Inc.,
395 U.S. 100 (1969) .......................................... 4, 21
Statute
18 U.S.C. § 1836(b)(3)(B) ................................ 4, 20, 24
Rule
S. Ct. R. 10 ................................................................. 22
Other Authority
S. Shapiro, K. Geller, T. Bishop, E. Hartnett &
D. Himmelfarb,
Supreme Court Practice (10th ed. 2013)............. 22
INTRODUCTION
This case concerns petitioner’s effort to escape the
consequences of its strategic decision to swing for the
fences at trial by seeking a lump sum of damages for
misappropriation of ten alleged trade secrets. When
the jury ruled against petitioner on six of the ten purported trade secrets, petitioner’s “all-or-nothing” approach appropriately resulted in an award of zero
damages and the entry of injunctive relief. The Fifth
Circuit’s unanimous decision affirming that judgment
does not implicate any circuit split, and petitioner’s
criticisms of the Fifth Circuit’s decision are both meritless and not remotely worthy of this Court’s attention.
In 2019, petitioner Trinseo sued respondent KBR
under the Defend Trade Secrets Act (“DTSA”), claiming that KBR had misappropriated ten purported
trade secrets related to Trinseo’s polycarbonate manufacturing process—used to produce items such as
eyeglass lenses, lighting fixtures, medical devices,
and bulletproof glass. In the trial court, Trinseo chose
not to supply the jury with a damages theory for any
individual trade secret or any subset of the alleged secrets. Instead, Trinseo rolled the dice on an all-ornothing damages model that relied on the assumption
that KBR had misappropriated all ten of the alleged
trade secrets. Pet.App.51a. “[T]he 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 Trinseo’s
evidence on damages would be “‘totally undermined’
if Trinseo failed to obtain a verdict on all ten of its alleged trade secrets.” Pet.App.33a. Despite these
warnings, Trinseo forged ahead with its gamble.
2
Trinseo’s all-or-nothing strategy backfired when
the jury rejected “all” and instead found in Trinseo’s
favor on only four of the ten alleged trade secrets. Although the jury went on to award substantial damages, the district court recognized—in line with its
pre-trial warnings—that those damages reflected unsubstantiated guesswork, as Trinseo had not presented the jury with a legally sufficient evidentiary
basis to award damages for only those four secrets.
The district court accordingly concluded that the damages award was “unsupported by the law or the evidence,” Pet.App.83a, and issued only injunctive relief
tailored to those four secrets. It also denied Trinseo’s
motion for a new trial on damages.
The Fifth Circuit unanimously affirmed. Consistent with longstanding precedent, the Fifth Circuit
held that “trade secret misappropriation damages
must reflect the value attributable to the information
or technology that is misappropriated by the defendant.” Pet.App.18a; see Pet.App.33a. Because “Trinseo
failed to present evidence that would allow the jury
to” reasonably “award damages attributable only to”
the four trade secrets it found misappropriated, the
Fifth Circuit affirmed the district court’s judgment.
Pet.App.18a. That fact-bound decision plainly does
not warrant this Court’s review.
Apparently recognizing as much, Trinseo seeks
review of a question that the case does not actually
present. Trinseo’s petition is premised on the notion
that the Fifth Circuit adopted “a strict-apportionment
approach to trade secret damages.” Pet.22 (capitalization altered); see, e.g., Pet.3-5, 24-28. But the decision below explicitly disavows any strict-apportionment requirement. Pet.App.18a. The Fifth Circuit
instead applied the well-established principle that
3
plaintiffs must present evidence of damages traceable
to defendants’ alleged misconduct.
Much like Trinseo’s framing of the question presented, the purported “circuit split” that Trinseo invokes is divorced from reality. The Fifth Circuit went
out of its way to reconcile its approach with the outof-circuit cases Trinseo invokes, no court has recognized a circuit split, and the cases express no disagreement with one another on the relevant legal inquiry. Instead, they reach different results on a factbound question based on different facts and different
damages theories. Here, the Fifth Circuit correctly
affirmed the district court’s judgment because Trinseo
opted for an all-or-nothing strategy—i.e., it “failed to
present evidence” that would allow the jury to calculate damages for the misappropriation of just four
trade secrets. Pet.App.18a.
Moreover, this case is a poor vehicle to address
questions regarding apportionment of damages under
the DTSA. Trinseo could have presented the jury with
the tools to apportion liability to particular purported
trade secrets, but opted for an all-or-nothing approach. This Court does not grant plenary review to
rescue parties from such tactical judgments, particularly when (as here) there are multiple alternative
grounds for affirmance. The decision below granted
Trinseo prospective injunctive relief, so any claims of
unremedied trade secrets violations are misguided.
The decision is also the first precedential opinion from
any circuit court to address apportionment under the
DTSA, so even if it were not correct, further percolation would be required before this Court’s review.
At bottom, Trinseo’s petition is just a fact-bound
effort to avoid the consequences of an all-or-nothing
4
damages strategy gone bad. That request is not remotely certworthy, and there was no error in any
event. The Court should deny the petition.
STATEMENT OF THE CASE
A. Legal Background
It is a foundational principle of remedies that a
factfinder may not award damages based “on speculation or guesswork.” See Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 124 (1969). It is equally
clear that a jury’s damages award must reflect only
those damages causally traceable to the defendant’s
wrongdoing. See 18 U.S.C. § 1836(b)(3)(B)(i)(II), (ii)
(trade-secret plaintiff may recover damages “caused
by the misappropriation”).
In the context of intellectual property, these fundamental principles are reflected in the “apportionment” doctrine. Pet.App.12a-13a. Apportionment isolates the value of the misappropriated intellectual
property—i.e., the patented or trade-secret information—from the value of non-proprietary information. It therefore ensures that the factfinder has a
non-speculative basis to determine which damages
are causally connected to a defendant’s unlawful misappropriation (and therefore compensable), as opposed to a defendant’s lawful activities. Pet.App.18a.
The proper application of apportionment principles
simply “reflect[s] the commonsense notion that trade
secret damages must be tied to the defendant’s wrongful
conduct—i.e.,
the
misappropriation.”
Pet.App.15a-16a.
This Court first recognized apportionment in the
patent context more than 140 years ago. In Garretson
v. Clark, the Court held that the patent owner “must
5
in every case give evidence tending to separate or apportion the defendant’s profits and the patentee’s
damages between the patented feature and the unpatented features, and such evidence must be reliable
and tangible, and not conjectural or speculative . . . .”
111 U.S. 120, 121 (1884). The Court affirmed a decree
that the plaintiff presented no proof of damages where
the plaintiff “produced no evidence to apportion the
profits or damages between the improvement constituting the patented feature and the other features of
the [device].” Id.
Patent damages principles have long guided
trade-secret damages. For many decades, it has been
“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
(5th Cir. 1974) (citation omitted). Thus, the proper
measure of damages in both patent and trade-secret
cases requires that damages be apportioned in a way
that corresponds to the portion of the product that
was misappropriated. See id. at 535-39. In the tradesecret context, apportionment principles apply to both
reasonable royalty and restitutionary (or unjust enrichment) measures of damages. Reasonable-royalty
damages award “an apportionment of profits based on
an approximation of the actual value of the infringed
device to the defendant.” Id. at 537. And unjust-enrichment damages award a plaintiff “the full total of
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.
6
Courts have applied these apportionment principles to vacate trade-secret damages awards where a
plaintiff fails to introduce evidence that would allow
the factfinder to award damages corresponding to the
compensable misappropriation. See O2 Micro Int’l
Ltd. v. Monolithic Power Sys., Inc., 399 F. Supp. 2d
1064, 1076-77 (N.D. Cal. 2005) (vacating damages
award where plaintiff presented damages evidence
that assumed misappropriation of twelve alleged
trade secrets, but plaintiff introduced no apportionment evidence that allowed the jury to calculate damages limited to the one trade secret that resulted in
unjust enrichment), aff’d, 221 F. App’x 996 (Fed. Cir.
2007); Tex. Advanced Optoelectronic Sols., Inc. v.
Renesas Elecs. Am., Inc., 895 F.3d 1304, 1317 (Fed.
Cir. 2018) (vacating damages award where plaintiff
presented unapportioned damages evidence allegedly
resulting from the misappropriation of three trade secrets, but defendant was liable as to only one trade
secret). Many other courts have applied apportionment principles to trade-secret cases in other procedural postures. See Pet.App.15a n.8 (collecting cases
applying apportionment principles in trade-secret
cases to motions for summary judgment and motions
to exclude experts).
B. Factual Background
1. Beginning in the 1960s, The Dow Chemical
Company began developing a process to manufacture
polycarbonate. Pet.App.2a. In 1985, Dow began commercially producing polycarbonate. Pet.App.3a. At
its peak, Dow operated and participated in polycarbonate facilities worldwide. Pet.App.3a.
By 2010, polycarbonate had become a commodity
product, and Dow exited the business because it was
7
no longer strategic.
ROA.11598-601, 11605-09,
44509-10. Dow sold its polycarbonate interests to a
private equity company, and the polycarbonate business was operated under the name Styron and later
Trinseo. Pet.App.3a.
From 2011 to 2014, Trinseo repeatedly tried and
failed to license its polycarbonate technology in several countries. ROA.10125, 12113-17. By 2014,
Trinseo internally acknowledged that it “has had no
success up to this point in its licensing efforts.”
ROA.51969. As a result, Trinseo gave up and began
exiting the polycarbonate business. ROA.10125-27,
12136-39.
Between 2014 and 2016, Trinseo shut down or exited all but one of its polycarbonate facilities and
agreements. Pet.App.6a n.3. In 2019, Trinseo developed a project team to consider selling or shutting
down its final remaining polycarbonate facility.
ROA.12167-70, 48297-308, 53452. Trinseo’s internal
documents valued the polycarbonate technology—including the right to license future plants—at just $10
million. ROA.11690-94, 48300. Trinseo ultimately
“deci[ded] to exit virgin polycarbonate production”
and sold the manufacturing equipment from its last
polycarbonate facility. ROA.8437.
2. Steve Harper is a former Dow employee who
worked in Dow’s polycarbonate business in the 1980s
and began polycarbonate consulting in 2007.
Pet.App.3a. In his polycarbonate consulting, Harper
employed a group of ex-Dow employees, which became
known as the “Tech Team,” to assist him. Pet.App.3a.
Between 2007 and 2017, Harper engaged in polycarbonate consulting with numerous companies and
widely shared information about Dow’s (later
8
Trinseo’s) polycarbonate process—the same information Trinseo would later claim comprised its trade
secrets. In 2007, Harper created a design package for
a Dow-type polycarbonate plant for a Chinese client.
Pet.App.3a. In 2009, Harper provided an American
engineering firm with a process design package for
another Chinese client. Pet.App.3a-4a. Between
2013 and 2016, Harper and the Tech Team prepared
a design package for yet another Chinese client, and
the Tech Team collaborated with multiple other companies in the process. Pet.App.4a-5a.
3. During that time, Trinseo was well aware that
its claimed trade-secret information was circulating
in the polycarbonate industry. In 2011, Trinseo first
learned that an industry publication received its
“highly confidential, proprietary, and non-public,
trade secret information” from “various consultants,”
but Trinseo never attempted to identify those consultants or otherwise investigate how the publication obtained the information. Pet.App.4a; ROA.10167-71,
10175-80, 10226-28, 12098-113, 12937-42, 51549-50.
As of 2014, Trinseo believed that ex-Dow employees were violating their confidentiality obligations
and performing polycarbonate consulting in China,
but again did nothing to investigate. Pet.App.5a;
ROA.10240-41, 10244, 10246-54, 12134-35, 52011,
52029. Harper also disclosed to Trinseo’s lead polycarbonate engineer that Harper was consulting alongside other ex-Dow polycarbonate employees.
ROA.10094-96, 10272-77, 10917-19. And in 2018, a
Tech Team member disclosed to the same Trinseo engineer that Harper and the Tech Team members had
been working on polycarbonate projects in China for
years and were currently working for KBR.
Pet.App.7a. Harper also had lunch with this Trinseo
9
engineer to discuss Harper’s consulting work using
Dow’s polycarbonate process. ROA.10292-96, 4784445. At no point did the Trinseo engineer express any
concern, nor did Trinseo take any action in response.
ROA.10277-79, 10285-96, 10919.
4. KBR provides engineering and manufacturing consulting services across a number of technologies. In 2012, KBR became interested in finding polycarbonate technology to market alongside KBR’s
other technology and services. ROA.11055-56, 1106366, 46457. KBR learned that Harper and the Tech
Team had been involved in numerous polycarbonate
projects in China, and so KBR sought out the Tech
Team’s services. Pet.App.6a; ROA.11293-98. In November 2017, Harper’s consulting company entered
into an agreement with KBR. Harper represented he
(1) owned all the IP rights in the process design package being provided, (2) had not received any notice of
infringement allegations, (3) was not aware of any
conditions that would prevent KBR from licensing the
IP rights, (4) had performed due diligence to determine he was entitled to disclose the information, and
(5) the process design package had previously been
disclosed to multiple other companies. ROA.52667.
KBR dedicated significant resources and over
120,000 work hours to develop its own polycarbonate
licensing package named “PCMax.” ROA.13052-53.
KBR purchased a technology package for a 65 KTA
(kilotons per annum) plant from another company,
but KBR sought to build the world’s first 100 KTA polycarbonate facility and had to substantially rework
the existing design. ROA.10298-300, 11203, 11393403, 13064-65.
10
KBR secured its first licensee for PCMax with the
Chinese chemical company Cangzhou in October
2017. Pet.App.7a. KBR later signed agreements to
license its PCMax package to another Chinese client,
Pingmei. Pet.App.7a.
5. From 2011 to 2018, Trinseo had been told and
believed that multiple companies received its alleged
trade secrets long before KBR, but Trinseo did not sue
any of them and did not anticipate bringing any litigation against KBR.
ROA.12182-86, 12189-90,
12209-10. Things changed in 2019, however, when
Trinseo received a cold-call email introduction to a
lawyer who wanted to pitch a trade-secret lawsuit.
ROA.12187-97, 39667. Trinseo hired that lawyer, and
this lawsuit followed.
C. Procedural History
1. Trinseo sued KBR, Harper, Tech Team member Bill Davis, and Harper’s and Davis’s consulting
companies under the DTSA for misappropriating its
polycarbonate technology, asserting eleven (later reduced to ten) purported trade secrets. Pet.App.7a-8a.
Throughout the litigation, Trinseo took an all-or-nothing approach to calculating damages under both reasonable royalty and unjust enrichment theories, and
its expert Thomas Pastore provided only lump-sum
damages amounts allegedly resulting from the misappropriation of all ten alleged trade secrets. Almost a
year before trial, KBR moved to exclude Pastore’s
opinions because, among other flaws, he failed to apportion damages associated with each trade secret or
with any subset of them. Pet.App.8a; ROA.16734-39.
The court granted KBR’s motion in part, but it declined to exclude Pastore’s opinions in their entirety
11
because it concluded that Pastore’s all-or-nothing approach was not per se inadmissible. ROA.6132-42.
Despite admitting the testimony, the district
court warned Trinseo that its all-or-nothing approach
could come back to bite it. The court warned Trinseo
that if it failed to prove that any one of its alleged
trade secrets was misappropriated, this “may undercut all of Pastore’s purported testimony.” ROA.6140
& n.2. But “Trinseo appear[ed] willing to gamble that
it c[ould] convince the jury that the allegedly misappropriated trade secrets provided all of the value of
KBR’s end usage/product.” ROA.6140.
At the jury charge conference, the court again
warned Trinseo about “bank[ing] on an all or nothing
approach” to damages and noted that “the plaintiffs
chose to go down this route . . . [b]ut they’re taking a
chance.” ROA.12424-26. The court cautioned that if
the jury answered “no” to the existence of any one secret, Trinseo would “lose the whole reasonable royalty
argument.” ROA.12423, 12426.
2. At trial, the jury rejected Trinseo’s claims as
to a majority (six of ten) of the alleged trade secrets,
including most of the alleged secrets that Trinseo’s
witnesses testified were the “heart, core, and value
driver” of its technology. ROA.7546, 10079-80. On
the other four secrets, the jury found that KBR’s and
Harper’s misappropriation was not willful and malicious. ROA.7549-52, 7561. The jury nonetheless
awarded $50 million against KBR for reasonable-royalty damages and, alternatively, found KBR was unjustly enriched by $21.2 million. ROA.7557-58. The
jury found that Harper’s two companies were unjustly
enriched by $2.9 million and $2.5 million. ROA.7558.
12
The district court subsequently granted judgment
as a matter of law on damages for KBR and Harper
because Trinseo did not present any damages evidence specific to the four trade secrets the jury found
to have been misappropriated. Pet.App.51a-89a, 95a96a, 103a. Because the jury did not find in Trinseo’s
favor on all the alleged trade secrets, Trinseo’s all-ornothing damages evidence on all ten alleged secrets
could not support the jury’s award as to the four trade
secrets it found. Pet.App.51a-89a. Accordingly, the
district court entered judgment that Trinseo take
nothing on damages, although it did enter a permanent injunction for Trinseo against KBR and Harper
tailored to the four trade secrets the jury found.
Pet.App.105a-112a, 113a.
3. Both sides appealed, and the Fifth Circuit
unanimously affirmed. On damages, KBR raised
multiple grounds for affirmance of the district court’s
take-nothing judgment. C.A.Dkt.134 at 39-75. The
Fifth Circuit addressed only one of them, affirming
the district court’s conclusion that Trinseo’s damages
evidence for all ten claimed trade secrets (collectively)
could not support the jury’s award of damages for only
four of the alleged trade secrets. Pet.App.11a-23a.
As relevant here, the Fifth Circuit observed that
“Trinseo had ‘bundl[ed] all of its alleged trade secrets
damages together,’” such that “the jury did not have a
reasonable basis to award damages based on the misappropriation of only four trade secrets.”
Pet.App.16a. The court recognized that its caselaw
takes a “flexible approach to trade secret damages,”
but reasoned that this flexibility “does not disturb the
settled principle that ‘[e]stimation of damages . . .
should not be based on sheer speculation.’”
Pet.App.17a. To that end, the Fifth Circuit held that
13
“trade secret misappropriation damages must reflect
the value attributable to the information or technology that is misappropriated by the defendant” and
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.”
Pet.App.18a.
The Fifth Circuit also expressly rejected a “strict
apportionment” requirement for trade-secret damages. Pet.App.18a. Its decision was instead premised
on the undisputed fact that “Trinseo only presented
damage estimates that assumed misappropriation of
ten alleged trade secrets,” which meant “the jury had
no basis for awarding damages based on the misappropriation of only the four trade secrets it found.”
Pet.App.23a. To further rebuff the notion that it had
adopted a “strict apportionment” requirement for
trade secret damages, the court also identified some
of the “many ways” in which a plaintiff may carry its
evidentiary burden in this context. Pet.App.18a n.10.
In light of Trinseo’s failure to heed the “commonsense notion that trade secret damages must be
tied to the defendant’s wrongful conduct—i.e., the
misappropriation,” the Fifth Circuit held that the district court had properly vacated the jury’s damages
awards. Pet.App.13a-16a, 22a-23a. It thus affirmed
the take-nothing judgment. Trinseo unsuccessfully
sought panel rehearing and rehearing en banc. No
judge on the Fifth Circuit requested a poll, nor did any
judge dissent from the denial of rehearing.
Pet.App.42a.
14
REASONS FOR DENYING THE PETITION
Trinseo’s petition misstates the Fifth Circuit’s decision below, conjures a non-existent split, and otherwise demands error correction where there is no error
to correct. Trinseo repeatedly asserts that the Fifth
Circuit imposed a “strict apportionment” requirement—i.e., a requirement that a DTSA plaintiff must
always divide its damages on a “per trade secret” basis. But the Fifth Circuit explicitly rejected any such
requirement (and rejected Trinseo’s effort to attribute
that approach to the district court), reaffirming that
it follows a “flexible” approach that simply requires
plaintiffs to provide evidence to enable a jury to trace
any requested damages to a defendant’s wrongdoing.
The decision below did nothing more than apply this
commonsense principle to the facts of this case:
Trinseo failed to present the necessary evidence to
support damages for a subset of the purported trade
secrets, so the jury’s damages award could not stand.
The Fifth Circuit’s decision is well supported by
the record below. Trinseo chose to allege misappropriation of ten trade secrets and to present damages
evidence that assumed misappropriation of all ten secrets. But, as Trinseo’s own expert admitted, Trinseo
presented no evidence that would allow the jury to
award damages on less than all ten secrets. Thus, the
jury was presented with no evidence or methodology
that would have allowed it to apportion damages to
the four trade secrets it ultimately found misappropriated. Because the jury had no basis to determine
damages limited to the scope of liability it found—i.e.,
the misappropriation of four trade secrets—the courts
below correctly held that the jury had no evidence to
award damages.
15
None of that conflicts with any decision from any
other court of appeals. Trinseo claims that the Fifth
Circuit’s opinion deepens a circuit split on apportionment. But the handful of supposedly contrary decisions Trinseo cites from the Third, Sixth, and Ninth
Circuits all reflect the Fifth Circuit’s legally correct,
commonsense understanding that apportionment evidence is needed to support an award in certain cases.
The cases simply reach different results on different
facts based on different damages theories. Tellingly,
the opinions Trinseo cites do not express any disagreement with each other on the relevant legal standard—
let alone recognize a circuit split. Moreover, two of
the three cases Trinseo cites were decided under state
law—not the DTSA—and only one is precedential in
its own circuit.
While all of that is reason enough to deny certiorari, this case is also a poor vehicle for addressing any
issues regarding apportionment of trade-secret damages. For one thing, there are multiple alternative
grounds for affirmance of the district court’s takenothing damages judgment, so this Court’s intervention would be highly unlikely to alter the ultimate outcome of the case. For another, even assuming that
there was tension between different circuits’ approach
to apportionment under the DTSA, substantially
more percolation in the courts of appeals would be
warranted. Finally, as indicated by Trinseo’s failure
to raise the issue at any point in the proceedings below, this case plainly does not implicate any Seventh
Amendment concerns. Consistent with the Seventh
Amendment, the Fifth Circuit merely required
Trinseo to support its claims with legally sufficient,
non-speculative evidence. And while Trinseo tells a
16
tale of unremedied trade secrets violations, it obtained injunctive relief tailored to the four trade secrets on which it prevailed. The fact that it did not
obtain a windfall based on unsubstantiated guesswork as well is no cause for concern, let alone a cause
for this Court’s intervention.
I.
There Is No Circuit Split On Apportionment
Of DTSA Trade-Secret Damages.
Trinseo contends that the Fifth Circuit’s decision
warrants this Court’s review because it “sharpens a
circuit split over the apportionment of damages in
cases involving multiple trade secrets.” Pet.14-22.
That is incorrect.
No court of appeals has expressed disagreement
with the Fifth Circuit’s commonsense view that “trade
secret misappropriation damages must reflect the
value attributable to the information or technology
that is misappropriated by the defendant.”
Pet.App.18a. Trinseo’s suggestion that the decision
below creates a split between the Fifth Circuit and the
Third, Sixth, and Ninth Circuits—supposedly because
the latter three courts “have adopted a more flexible,
deferential approach to damages awards” in cases “involving multiple trade secrets,” Pet.18—is wrong several times over.
In the Third Circuit, Trinseo identifies just one
unpublished case that purportedly conflicts with the
decision below. See Pet.20 (citing Sabre GLBL, Inc v.
Shan, 779 F. App’x 843 (3d Cir. 2019)). There is
plainly no conflict. In Sabre, the plaintiff—like
Trinseo here—presented damages evidence “in the aggregate.” 779 F. App’x at 852. But, unlike Trinseo,
the plaintiff prevailed on every one of its trade-secret
17
claims. Id. at 848, 852-53. The Third Circuit’s conclusion that “apportionment of damages is [not] required in all cases involving trade secrets,” id. at
852—and was not required in that distinct factual
context—is perfectly consistent with the Fifth Circuit’s decision that some type of apportionment was
required here. There is no problem with an all-ornothing trial strategy when the jury finds “all”—i.e.,
all the trade secrets valid and infringed. Regardless,
Sabre is a non-precedential opinion that involved
Texas law concerning the breach of a fiduciary duty,
rather than the DTSA. Id. at 848, 852. Sabre is
wholly inapposite, soup to nuts.
Trinseo’s invocation of Caudill Seed & Warehouse
Company v. Jarrow Formulas, Inc., 53 F.4th 368 (6th
Cir. 2022), is similarly unavailing. As both the district court and the Fifth Circuit explained, Caudill is
“not . . . in tension” with and does “not contradict the
reasoning of” cases (like the decision below) requiring
apportionment of damages where there are multiple
alleged trade secrets. Pet.App.63a; see Pet.App.16a17a. Indeed, Caudill itself indicates as much: the
Sixth Circuit acknowledged several such cases and expressly “distinguished” them on the ground that the
expert in Caudill—unlike Trinseo’s expert here—“did
not take an ‘all-or-nothing approach’ and [instead]
‘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.”
Pet.App.16a-17a (quoting Caudill, 53 F.4th at 389).
Regardless, Caudill cannot create a DTSA circuit split
because—like Sabre—it was decided under state law
rather than the DTSA. See 53 F.4th at 389-90.
The third and final case in Trinseo’s purported circuit split is the Ninth Circuit’s unpublished decision
18
in EchoSpan, Inc. v. Medallia, Inc., 2025 WL 3046753
(9th Cir. Oct. 31, 2025). That decision also accords
with the Fifth Circuit’s decision below, as it recognizes
that “apportionment testimony may be essential to
provide a reasonable basis for a jury to value a defendant’s gain” in complex trade-secrets cases. Id. at *2.
What is more, the Fifth Circuit expressly considered
EchoSpan and explained that it came out differently
because of its “markedly different” facts: there, the
jury did hear evidence from which it could reasonably
estimate the damages stemming from the one juryfound secret, which was the “‘core’ tool that ‘enable[d]
everything.’” Pet.App.21a-22a (quoting EchoSpan,
2025 WL 3046753 at *2). Far from expressing disagreement with the Ninth Circuit’s approach, the Fifth
Circuit explained that Trinseo’s testimony on damages “contrast[ed] with the testimony in EchoSpan,”
leading to a different outcome. Pet.App.22a. Simply
put, even leaving aside the fact that EchoSpan is unpublished and therefore non-precedential, the decision below neither “split” with EchoSpan on the legal
issue of apportionment nor suggested any disagreement with its application of that principle to a particular set of facts.
In short, Trinseo identifies nothing remotely approaching a circuit split on when a plaintiff needs to
apportion damages in complex cases under the DTSA.
For that reason alone, this Court’s intervention is unwarranted.
19
II. The Decision Below Correctly Affirmed That
Trinseo Failed To Present Adequate Evidence To Support The Jury’s Damages
Award.
With no circuit split that might warrant this
Court’s intervention, Trinseo’s petition amounts to a
fact-bound request for error correction that does not
satisfy this Court’s standards for certiorari. Regardless, there is no error to correct. Trinseo spends much
of its petition asserting that the decision below erroneously applied a “strict apportionment” requirement
that categorically obligates every plaintiff to introduce damages on a per-trade-secret basis. Not so. In
reality, the Fifth Circuit explicitly disavowed a “strict
apportionment” requirement; it merely held that
Trinseo needed to (but failed to) provide the jury with
some reasonable basis for apportioning damages to
the four trade secrets it found were misappropriated.
That straightforward conclusion is clearly correct.
1. Trinseo’s merits argument attacks a straw
man. The petition repeatedly accuses the Fifth Circuit of broadly demanding “strict apportionment” of
damages on a per-trade-secret basis. E.g., Pet.i, 3-5,
13, 22-28. The Fifth Circuit did no such thing. In fact,
when Trinseo tried to attribute that label to the district court’s analysis, the Fifth Circuit stated that “the
district court did not create a novel ‘strict apportionment’ theory. Nor do we.” Pet.App.18a. The Fifth
Circuit instead held that “trade secret misappropriation damages must reflect the value attributable to
the information or technology that is misappropriated
by the defendant.” Pet.App.18a. Accordingly, “where
a plaintiff alleges multiple trade secrets, the jury
20
must have a reasonable basis to award damages attributable only to the information or technology that
actually qualifies as a trade secret.” Pet.App.18a.
Further evidencing the Fifth Circuit’s rejection of
a strict-apportionment requirement, the court emphasized the “many ways” that plaintiffs alleging misappropriation of trade secrets may satisfy the more flexible approach it reaffirmed. Pet.App.18a n.10. As an
alternative to “individually valuat[ing] each alleged
trade secret,” a plaintiff could “valuate a group of
trade secrets.” Pet.App.18a n.10. Or “a plaintiff could
provide a methodology for the jury to calculate the
value of a particular trade secret or group of trade secrets.” Pet.App.18a n.10 (emphasis added). What is
more, the court emphasized that this is not “an exhaustive list of ways” a plaintiff could carry its evidentiary burden because “every case requires a flexible and imaginative approach to the problem of damages.” Pet.App.18a n.10 (quoting Univ. Computing
Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 538 (5th
Cir. 1974)).
That understanding of the law makes perfect
sense. Indeed, the court’s expectation that a plaintiff
present some apportionment evidence is firmly rooted
in the text of the DTSA, which requires a causal connection between the defendant’s misappropriation
and the plaintiff’s damages.
See 18 U.S.C.
§ 1836(b)(3)(B)(i)(II), (ii). It is also supported by this
Court’s longstanding application of common-law apportionment principles and the universally applicable
requirement that a plaintiff provide non-speculative
evidence to support an award of damages. See, e.g.,
Garretson, 111 U.S. at 121. It is thus no surprise that
Trinseo has admitted, on multiple occasions, that apportionment may properly be required in DTSA cases.
21
C.A.Dkt.115 at 24-26; Pet.App.13a n.7; see also Pet.13
(“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.”).
Trinseo’s problem here was not that it failed to
strictly apportion its damages. The problem was that
Trinseo did not offer any evidence or methodology to
give the jury a reasonable basis to award damages attributable only to the four trade secrets it found misappropriated. Instead, Trinseo presented the jury
with lump-sum damages tied to the purported misappropriation of all ten claimed trade secrets without
any way to determine the damages attributable to less
than all ten. See infra pp. 22-25. The Fifth Circuit
correctly concluded that, having rejected the majority
of the purported trade secrets, the jury was left to
speculate about how to award damages for the misappropriation of the four trade secrets. Pet.App.18a.
That is, and has always been, unacceptable under this
Court’s precedents. See, e.g., Zenith Radio, 395 U.S.
at 124; Garretson, 111 U.S. at 121. There is, accordingly, no reason to question the Fifth Circuit’s holding
below—and certainly not pursuant to Trinseo’s “question presented,” Pet.i, which badly mischaracterizes
the Fifth Circuit’s analysis.1
1 Lacking any credible argument against the Fifth Circuit’s ac-
tual reasoning, Trinseo turns its ire to the district court. See
Pet.i, 3, 12, 15-16, 30. But the district court’s order is not a candidate for certiorari, and, in all events, the Fifth Circuit correctly
clarified that “the district court did not create a novel ‘strict apportionment’ theory.” Pet.App.18a. Indeed, the district court
mentioned “strict apportionment” only to describe Trinseo’s arguments, Pet.App.52a-53a (“Trinseo argues that strict apportionment is not generally required . . . .”), and it certainly did not
22
2. To the extent Trinseo engages with what the
Fifth Circuit actually held, it merely disagrees with
the Fifth Circuit’s application of well-established legal principles to the facts of this case. But this Court
is not in the business of reviewing that kind of dispute. See S. Ct. R. 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists
of erroneous factual findings or the misapplication of
a properly stated rule of law”); S. Shapiro, K. Geller,
T. Bishop, E. Hartnett & D. Himmelfarb, Supreme
Court Practice § 5.12(c)(3), p. 352 (10th ed. 2013)
(“[E]rror correction . . . is outside the mainstream of
the Court’s functions and . . . not among the ‘compelling reasons’ . . . that govern the grant of certiorari.”).
In all events, the Fifth Circuit correctly applied
the law to the facts of this case. “Trinseo took an allor-nothing approach to its damages models; it provided one lump sum for damages related to its entire
[polycarbonate] technology package that included all
ten alleged trade secrets.” Pet.App.51a. Trinseo thus
presented the jury with no evidence, guidance, or
methodology to allow the jury to take that lump sum
and award an apportioned amount of damages limited
to the four trade secrets the jury found were misappropriated. That was a strategic decision on Trinseo’s
part, and this Court should reject Trinseo’s efforts to
shift the blame.
Start with Trinseo’s reasonable-royalty damages.
To support those damages, Trinseo’s damages expert
Thomas Pastore offered testimony about an unapportioned “reasonable royalty” for KBR to license
Trinseo’s entire polycarbonate package. ROA.11824require the “near-mathematical levels of exactitude” that
Trinseo claims it did, Pet.16, 30; Pet.App.54a & n.8.
23
27. He offered no testimony valuing the four trade
secrets found by the jury, no testimony regarding the
individual value of any trade secret, and no methodology to calculate damages on less than all ten alleged
trade secrets. That is not hyperbole. Pastore himself
admitted he offered no opinion that would allow the
jury to calculate a reasonable royalty for less than all
the trade secrets. ROA.11924 (“I don’t have that opinion at this time.”). Trinseo’s own expert thus conceded
that the jury had no evidence to determine the
amount of a reasonable royalty limited to the four
trade secrets the jury found.
Instead, Pastore based his reasonable-royalty testimony on his valuation of a license to Trinseo’s entire
polycarbonate
manufacturing
technology.
ROA.11842-61, 11899-902. Far from conducting any
kind of apportionment, Pastore admitted he “d[id]
not” even “differentiate” between value attributable to
Trinseo’s alleged secrets and value attributable to
public, non-trade-secret information. ROA.11926; see
also ROA.11399-402, 11925-26, 13061-66, 13648-49,
13664-67. So, while the jury was instructed to calculate a reasonable royalty reflecting “the value attributable to” just the four trade secrets it found “and
no more,” ROA.7556, the gaps in Trinseo’s evidentiary
showing left the jury to speculate on any royalty for
the four trade secrets it found were misappropriated.
The Fifth Circuit thus correctly rejected the award
that resulted from that speculation.
The same problems plagued the jury’s unjust-enrichment award. Again, Trinseo’s damages expert
Pastore testified only to lump-sum damages claimed
for the misappropriation of all ten of Trinseo’s alleged
trade secrets. ROA.11828-32, 11836. Pastore offered
no testimony about the amount of unjust enrichment
24
resulting solely from the four jury-found trade secrets.
Pastore failed even to apportion his calculation of
KBR’s supposed unjust enrichment between profits
attributable to KBR’s alleged use of the ten claimed
secrets and profits attributable to non-secret information (such as KBR’s own work on PCMax). See,
e.g., ROA.11393-403, 11829-32, 11930, 11936, 13053.
And, again, Pastore admitted he did not perform any
apportionment analysis in his disgorgement calculation. ROA.11936.
As with Trinseo’s reasonable-royalty theory, there
was a disconnect between the evidence and the jury’s
task in determining unjust-enrichment damages. The
jury was charged with determining “[t]he amount of
Defendant’s unjust enrichment that is a result of its
misappropriation of the polycarbonate trade secrets.”
ROA.7555,
7557;
see
also
18
U.S.C.
§ 1836(b)(3)(B)(i)(II) (trade-secret plaintiff may recover damages “caused by the misappropriation”).
Thus, the jury had to calculate an amount of unjust
enrichment that resulted from the misappropriation
it found by KBR—i.e., the misappropriation of only
four secrets. Yet again, the jury heard only evidence
of an amount that KBR was purportedly unjustly enriched by using all ten of Trinseo’s alleged secrets and
that was improperly inflated by profits resulting from
KBR’s own work, not any alleged misappropriation.
As the Fifth Circuit rightly determined, that evidence
provided no basis for the jury to calculate damages as
to only four trade secrets.2 See Pet.App.16a, 18a, 23a.
2 As the Fifth Circuit recognized, Trinseo followed the same all-
or-nothing approach to its damages with respect to its claims
against Harper and his companies—Trinseo introduced damages
estimations that assumed misappropriation of all ten alleged
25
To be sure, Trinseo argued below, as here, that a
subset of the ten alleged trade secrets were the “heart,
core, and value driver” of Trinseo’s technology. See,
e.g., Pet.30. But the jury rejected most of those purported “core” trade secrets, and Trinseo provided the
jury with no evidence or methodology to value the secrets that remained. Pet.App.21a-22a. Despite
Trinseo’s best efforts to manufacture a problem in this
case, the jury’s damages awards simply had no reasonable, non-speculative support in the record and so
the Fifth Circuit properly affirmed the vacatur of
those awards.
3. Trinseo repeatedly suggests that its undeniable failure to offer any apportionment evidence should
be excused because its alleged trade secrets “relate to
a single, integrated system whose value cannot be apportioned per trade secret.” Pet.14; see Pet.i, 3, 24-25.
This argument ignores the record. Trinseo presented
no evidence that apportionment of its damages among
its alleged trade secrets would have been impossible.
To the contrary, Trinseo’s damages expert admitted
that he could have come up with an apportionment of
damages for a subset of Trinseo’s alleged trade secrets, but he simply did not do so. ROA.11924 (“I
could do that work, if I was ordered to do it.”). Rather
than showing that apportionment was impossible,
Trinseo intentionally chose not to apportion its damages and insisted that it was “not required to” apportion. ROA.12425. Thus, Trinseo’s failure to apportion
did not result from the impossibility of doing so—it
resulted from Trinseo’s strategic decision to offer
trade secrets. Pet.App.16a, 22a-23a. Thus, the same reasoning
required the vacatur of the jury’s unjust-enrichment awards
against Harper’s companies.
26
lump-sum damages for all its alleged trade secrets in
an effort to maximize its damages.
And even assuming it would have been impossible
to apportion Trinseo’s damages to correspond to a subset of Trinseo’s ten alleged trade secrets, there was a
simple solution. Trinseo could have submitted its polycarbonate technology to the jury as a single compilation trade secret. It declined to do so. Pet.App.17a.
Instead, Trinseo deliberately chose to divide its supposedly “integrated system” into ten alleged trade secrets and submit them separately to the jury. Whatever problems of proof resulted from that choice were
problems of Trinseo’s own making.
There were also at least two other methods under
which Trinseo could have proven its damages. In the
Fifth Circuit, Trinseo argued that, even if apportionment applies here, it could recover damages under the
“built-in apportionment” theory or “entire market
value” exception. Pet.App.18a-19a. Trinseo, however, forfeited or waived those arguments below and
has not attempted to revive them before this Court.
In some cases, under the “built in apportionment”
doctrine, it can be assumed that the values presented
to the jury already reflect an apportioned amount attributable to the trade secrets. “Built-in apportionment” applies “when a sufficiently comparable license
is used as the basis for determining the appropriate
royalty” such that it can be assumed the negotiators
of the comparable license settled on a royalty amount
for the value of the trade secrets. See Omega Patents,
LLC v. CalAmp Corp., 13 F.4th 1361, 1376-77 (Fed.
Cir. 2021) (citation omitted). But Trinseo conceded it
failed to raise “built-in apportionment” in the district
27
court. Pet.App.19a. The Fifth Circuit held Trinseo
therefore forfeited this argument. Pet.App.19a.
In the Fifth Circuit, Trinseo also attempted to invoke the “entire-market-value” exception to apportionment. Under this exception, plaintiffs need not
satisfy the apportionment requirement where they
show “the entire value of the whole machine, as a marketable article, is properly and legally attributable to
the patented feature.” Garretson, 111 U.S. at 121.
Trinseo argued against including the entire-marketvalue exception in the jury charge, but attempted to
raise it post-verdict. Pet.App.72a n.18. The district
court found Trinseo had waived the entire-marketvalue exception, and Trinseo did not challenge that
waiver finding on appeal. Pet.App.20a.
Trinseo’s failure to preserve the built-in-apportionment and entire-market-value theories underscores that Trinseo’s problems in this case resulted
from Trinseo’s own litigation choices, not from any impossibility of satisfying the legal rule that the Fifth
Circuit correctly applied here.
4. The consequences of Trinseo’s all-or-nothing
approach were also no surprise to Trinseo. As the
Fifth Circuit emphasized in affirming the denial of
Trinseo’s motion for a new trial on damages, the district court warned Trinseo before trial that its all-ornothing approach was a gamble that required Trinseo
to prevail on all its alleged trade secrets. Pet.App.33a;
ROA.6140. Trinseo deliberately chose to gamble anyway. In these circumstances, Trinseo’s request for a
new trial was meritless when made and remains meritless now. Pet.34; Pet.App.33a.
In sum, Trinseo made a conscious choice to ignore
the district court’s warnings about its evidentiary
28
presentation, hoping that its gamble would result in a
windfall. When Trinseo’s gamble failed, the district
court correctly rendered judgment that Trinseo take
no damages and obtain only injunctive relief. There
is no basis for this Court to revisit that entirely correct
conclusion.
III. This Case Is A Poor Vehicle To Address
Trinseo’s Misplaced Concerns.
There is no reason for this Court to grant
Trinseo’s petition, and countless reasons to deny it.
First, this case is not a proper vehicle to address
Trinseo’s concerns about a “strict,” per-trade-secret
“apportionment” requirement because, as explained,
the Fifth Circuit explicitly rejected any such requirement and there is no circuit split on that issue. See
supra pp. 16-21.
Second, KBR presented multiple independent
grounds for affirmance that the Fifth Circuit did not
reach. Those grounds included, for example, Trinseo’s
failure to offer legally sufficient evidence of the requisite hypothetical negotiations, net profits, and causation. See C.A.Dkt.134 at 59-63, 71-75. Moreover, as
to the award for unjust enrichment, “the district court
made a ‘contingent alternative finding’ that, in the
event” the Fifth Circuit “found apportionment was not
required, the jury’s award was otherwise unsupported
by the evidence.” Pet.App.10a n.5. Thus, even if this
Court granted certiorari on the apportionment issue
and reversed, it would (at most) result in a remand
that would consume judicial and party resources
without affecting the final disposition of the case.
Third, it would be wholly premature for this Court
to weigh in on the application of apportionment principles to trade secrets at this juncture. Not only is
29
there very little circuit-level authority addressing the
application of apportionment principles to trade-secret cases in general, but the Fifth Circuit’s decision
below is the only precedential opinion from any federal court of appeals addressing apportionment under
the DTSA. See Pet.14-20. This dearth of circuit-level
authority not only demonstrates that there is no circuit split, but also undermines Trinseo’s purported
concerns about ensuring uniformity in the circuits
where most trade-secret litigation takes place. Pet.4,
21-22. It also demonstrates the absence of any recurring and important legal dispute about the application of the apportionment doctrine to DTSA cases.
Far more percolation would be required in the lower
courts before this Court might consider getting involved.
In a last-ditch effort to manufacture a certworthy
issue, Trinseo claims that this case raises constitutional concerns under the Seventh Amendment.
Pet.5, 13-14, 22, 28. But Trinseo never even mentioned such concerns before the Fifth Circuit, so
Trinseo cannot introduce them for the first time in
this Court. In any event, the decision below simply
required Trinseo to support its claims with legally sufficient, non-speculative evidence—a baseline requirement that this Court has long held raises no Seventh
Amendment concerns. See Galloway v. United States,
319 U.S. 372, 388-96 (1943).
Finally, Trinseo bemoans the possibility that
proven trade-secrets violations could go unremedied.
The short answer is that injunctive relief remains
available and was awarded in this case. That relief,
unlike Trinseo’s damages evidence, is tailored to the
trade secrets actually found by the jury. The absence
of a damages remedy on top of that injunctive relief is
30
entirely a product of a case-specific failure of proof. At
bottom, Trinseo made a knowing gamble in its trial
strategy and is now disappointed with the result.
That is not a basis for this Court’s intervention. The
case does not implicate any circuit split; the Fifth Circuit’s analysis was sound; and, in all events, the narrow question of when a plaintiff must provide evidence on apportionment of damages in complex tradesecrets litigation is hardly the type of important, frequently recurring issue that might warrant this
Court’s attention.
CONCLUSION
This Court should deny the petition.
Respectfully submitted,
GEOFFREY L. HARRISON WARREN W. HARRIS
MATTHEW C. BEHNCKE
Counsel of Record
ABIGAIL C. NOEBELS
WALTER A. SIMONS
KATHERINE E. DREWS
BRACEWELL LLP
SUSMAN GODFREY L.L.P. 711 Louisiana Street
1000 Louisiana Street
Suite 2300
Suite 5100
Houston, Texas 77002
Houston, Texas 77002 (713) 223-2300
warren.harris@bracewell.com
Counsel for Respondent,
Kellogg Brown & Root, L.L.C.
31
JARED TYLER
BENJAMIN F. FOSTER
FOSTER YARBOROUGH
KILLINGSWORTH PLLC
440 Louisiana Street
Suite 1800
Houston, Texas 77002
Counsel for Respondents,
Stephen Harper, also known as Steve Harper;
Steve Harper Consulting, Incorporated; and
Polycarbonate Consulting Services, Incorporated
August 11, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.