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On January 21, 2026, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Trinseo Europe GmbH v. Kellogg Brown & Root, L.L.C., et al that has massive implications for those prosecuting or defending trade secrets actions.
In Trineso, the jury found defendants liable for misappropriation and awarded plaintiff more than $75 million in damages. Defendants immediately moved for judgment as a matter of law, focusing on plaintiff's damages calculation. The district court granted the motion, entered a take-nothing judgment, and vacated the damages award entirely. The Fifth Circuit affirmed across the board.
Trineso sends a clear message for litigants in trade secrets cases: Damages must be apportioned among those specific trade secrets proven up at trial. Failure to do so may render a damages award vulnerable to attack.
Case Background
The case centers on polycarbonate ("PC") manufacturing technology first developed by Dow Chemical and subsequently owned by Trinseo. After retiring, a former Dow engineer began consulting in the PC industry, assembling a team of other former Dow employees. Over time, the former employee and others developed PC-plant design packages and supported projects in China. According to Trinseo, that work relied on proprietary Dow/Trinseo materials, including plant drawings marked "confidential."
Kellog Brown & Root ("KBR") explored licensing Trinseo's PC technology, entered a nondisclosure agreement, but ultimately did not finalize a deal. KBR later partnered with a different provider and marketed a package described as "Dow-type" PC technology. Trinseo sued for trade secret misappropriation under the federal Defend Trade Secrets Act ("DTSA").
At trial, Trinseo claimed that ten concepts constituted its trade secrets. The jury found only four of those concepts actually qualified as trade secrets. After determining that those four trade secrets had been misappropriated, the jury awarded substantial reasonable royalty and unjust enrichment damages. Post-trial, the district court vacated the damage award on the basis that Trinseo's damages calculation assumed all ten concepts were trade secrets that had been misappropriated and, thus, overstated the damage occasioned by the misappropriation.
The Fifth Circuit's Holding
The Fifth Circuit reiterated its long-standing view (derived from University Computing Co. v. Lykes-Youngstown Corp.) that trade secret damages are measured by reference to analogous patent damages principles. Apportionment is a central concept in patent damages. In short, when the accused/infringing product includes both infringing and non-infringing components, damages must reflect only the value attributable to the infringing conduct.
Against that backdrop, the Fifth Circuit held that trade secret misappropriation damages must reflect the value attributable to the information or technology actually misappropriated. And where a plaintiff alleges multiple trade secrets, the jury must have a reasonable basis to award damages attributable only to the subset that qualifies as trade secrets.
"All-or-Nothing" Damages Can Be Fatal
Trinseo's damages expert built a model based on misappropriation of all ten alleged trade secrets but did not provide an individual valuation of each trade secret, an alternative valuation for subsets of secrets, or a methodology the jury could use to allocate value if fewer than all secrets were found.
Because the jury determined that only four of the alleged concepts were trade secrets, the Fifth Circuit agreed with the trial court that the jury lacked a principled way to translate Trinseo's "bundled" damages presentation into a lawful award limited only to the wrongful conduct. As a result, the damages award was vacated in full.
What Businesses and Litigators Need to Know
A plaintiff's trial strategy must anticipate "partial wins." When alleging multiple trade secrets at trial, it is important to consider that the jury may find fewer actually exist or were misappropriated. Plaintiffs—and particularly damage experts—should build damages proof that can survive that outcome (e.g., per-secret valuation, grouped valuation, or a jury-ready allocation method).
Conversely, trade secret defendants must attack "grab bag" damages theories that fail to properly apportion the relief requested. To that end, defendants should press for apportionment early in the process.
Businesses seeking more information may contact Sheppard's Labor and Employment team for additional insights and strategies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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