§ 134A.004.Damages

Three measures of compensatory damages and one multiplier.

In addition to or in lieu of injunctive relief, a claimant is entitled to damages, which can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.

"Both" is the operative word, and the qualifier prevents double counting. A claimant may recover their own loss and the defendant’s gain, but only the portion of the gain not already reflected in the loss.

That matters because the two diverge. A misappropriator may earn far more from a secret than its owner lost, or may destroy a market without profiting at all.

The third measure is the fallback: in lieu of damages measured by any other method, damages may be measured by a reasonable royalty for the unauthorised disclosure or use.

The royalty exists because loss and gain are both often unprovable. A claimant who cannot show either is not left with nothing.

Subsection (b) supplies exemplary damages: if willful and malicious misappropriation is proven by clear and convincing evidence, the fact finder may award exemplary damages not exceeding twice the compensatory award.

The cap is internal to this chapter — twice the award, rather than the formula in the general damages chapter — and the standard of proof is the same clear and convincing standard that chapter uses, defined here in the chapter’s own definitions.

Note that the award is discretionary. Proving wilful and malicious misappropriation opens exemplary damages; it does not compel them.