Trade Secret Damages Expert Witness

At EisnerAmper, we are experienced in matters concerning trade secrets and can assist in your case as a trade secret damages consultant or as an expert witness.

What Are Trade Secrets?

Trade Secrets definition: a secret device or technique used by a company in manufacturing its products. ~ Google Dictionary

Trade secrets can technically be defined as any private information pertaining to your business that gives your company an advantage over competitors.. The exact law differs by State, however, the Uniform Trade Secrets Act (UTSA), drafted by the Uniform Law Commission, has been officially adopted by 47 States making the law more consistent across State lines. In 2016, the Defend Trade Secrets Act was signed into Federal Law allowing businesses to sue in Federal court without first going through their respective state judicial systems.A trade secret can refer to any process, formula, practice, or design pertaining to your business. It must be information that isn´t commonly known or reasonably obtainable, is actively protected, and gives your business an edge over its competitors.

How do I know if it’s a “trade secret?

In determining whether information constitutes a trade secret, courts will consider several factors including the amount of money you invested to develop the information, your willingness to spend money to protect the information, whether the information gives you a commercial and competitive advantage over others who do not know it, how difficult it is for the rest to acquire or the duplicate the information, and how well-known the information is outside your business.

The value of a trade secret shouldn’t be misjudged and overlooked. A trade secret can potentially be the deciding factor when determining the success or failure of a business. Stolen trade secrets can cause hefty economic and financial consequences. Hence, it is of paramount importance for you to seek expert help to calculate the value of your trade secrets and adequately protect that value.

If your business becomes a victim of economic espionage owing to the theft of trade secrets, there are services that can assist you to obtain the economic losses you are owed, assuming the other party is guilty of using your business´ trade secrets unfairly and illegally.

Areas of business competition where trade secrets may apply:

  • sales and marketing technique & strategies, along with customer or client lists (yes a marketing technique can be a trade secret)
  • distribution & manufacturing processes
  • customer avatars & profiles
  • software trade secrets

Economic Damages Expert Witness in a Trade Secrets case

We at EisnerAmper usually quantify the economic damages in the following manner:

  • Actual Loss may be measured by the lost profits of a business, which are typically measured by calculating the additional sales and the subsequent profits from those sales if the trade secret had not been used or acquired improperly. Actual Damages may also be measured as lost business value over a specified period of time.
  • Unjust Enrichment is usually measured as the defendant’s profits gained as a result of their misappropriation.
    A reasonable royalty is a payment that would have been made from a negotiation between a trade secret holder and the infringer before the beginning of the infringing time period.
    There are two types of economic damages; which kind is awarded depends on the conduct of the defendant.
  • Compensatory damages, also known as actual damages, can be awarded to the businesses that have faced damages owing to the negligence or unlawful conduct of another enterprise or party. These types of damages can be measured as discussed above.
  • Exemplary damages, also known as punitive damages, can also be requested in a lawsuit when the defendant’s acts are considered fraudulent, violent, and reckless. These damages are awarded by the court.

How Rogers DVS Can Help

EisnerAmper works with attorneys to identify and quantify damages in civil litigation matters. Our work usually consists of identifying, quantifying, and reporting economic damages in a report delivered to the court and then follow-on testimony in the form of either deposition testimony and/or trial testimony. In addition to litigation support, we also work with clients to value their intellectual property and/or to value the entire business entity.

Providing Trade Secrets Expert Witness Litigation Support

In a misappropriation of trade secrets matter, EisnerAmper can assist you in identifying and quantifying economic losses that may eventually be awarded by a court of law, assuming the other party is found liable (guilty) of using your business’ trade secrets unfairly and illegally.

EisnerAmper’s IP professionals offer decades of experience in intellectual property damages assessments, including trade secret damages, patent, copyright and trademark infringement damages.

We are certified to conduct valuation engagements of both intangible assets (IP) and business valuations.  In addition, Graham Rogers has served as a trade secrets expert witness in a variety of federal, state, and tax jurisdictions. Graham has worked within a wide range of industries, including: healthcare services, the insurance industry, the financial industry, pharmaceuticals, and a variety of retail industries. Graham and his staff can offer expert testimony on your behalf, in support of your damages claim in all varieties of IP matters. In a trade secret misappropriation matter, they can help you to obtain the economic damages you are owed assuming the other party is found to have misappropriated your business’ trade secrets.

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