Following up on the release of Certum Group’s Trade Secret Guide, the post below is the first in a series on recent appellate court trade secret decisions. These posts will examine groundbreaking decisions and their ramifications. Today’s post features the May 2026 decision in Versata Software, LLC v. Ford Motor Co., in which the Federal Circuit vacated and reversed key portions of the trial court’s damages rulings, holding that a plaintiff whose trade secret has been misappropriated can seek, as unjust enrichment damages, the value of the benefit that the defendant received, even if that amount is substantially more than the defendant would have paid for the trade secret. The case is now remanded for a new trial on trade secret misappropriation damages. Background In the early 2000s, Ford hired Versata Software, LLC (“Versata”) to develop computer software that would allow Ford to more efficiently enable vehicle configuration. Versata created two pieces of software: the Automotive Configuration Manager (“ACM”) and the Materials Cost Analytics (“MCA”). The deal was memorialized in a 2004 Master Subscription and Services Agreement (“MSSA”) as well as a separate but related agreement for Versata to provide additional support and services for the software. After 10 years, with the MSSA set to expire, the parties were unable to agree on an extension; instead, Ford “released its own manufacturing configuration software, called PDO, which Ford had developed while licensing software from Versata.”¹ Versata believed that Ford’s creation of PDO involved the misappropriation of its trade secrets and was done in violation of the parties’ agreements. After Ford filed a declaratory-judgment action against Versata,² Versata counterclaimed, alleging that Ford had misappropriated both ACM and MCA. During pre-trial proceedings, the district court severely curtailed Versata’s ability to establish damages by, among other things: • Excluding the testimony of Versata’s damages expert; • Limiting Versata’s trade secret damages to a “reasonable royalty model of damages that is based upon the parties’ relevant business history”³; and • Precluding Versata from seeking damages “based upon the alleged value of benefits obtained by Ford through its use of the relevant software.”⁴ Despite these draconian limitations, at an October 2022 jury trial, the jury found that Ford breached the MSSA and misappropriated three ACM trade secrets. Accordingly, the jury awarded Versata approximately $22 million for trade secret misappropriation (based on the parties’ licensing history) and approximately $82 million for breaching the MSSA.⁵ In post-trial briefing, Ford moved for JMOL on liability and damages. In response, the district court upheld the jury’s verdict that found Ford liable for trade secret misappropriation and breach of contract, but ultimately (i) reduced the trade secret damages to $0 (“the jury had no way to reliably determine how long it would have taken Ford to develop the three (out of four) trade secrets that it found to have been misappropriated”) and (ii) reduced the breach-of-contract damages from approximately $82 million to $3 (“because the jury had no way to calculate Versata’s claimed breach of contract damages with reasonable certainty”).⁶ In other words, the district court first precluded Versata from seeking significant unjust enrichment damages and then, when Versata prevailed on a more limited damages theory, the district court struck them. Versata timely appealed. The Federal Circuit Finds that DTSA Windfalls Are Just Fine In excluding Versata’s damages expert, the district court reasoned that his unjust enrichment model, based on the value to Ford of misusing the trade secrets, “would award Versata far more than the fair price it deemed Ford should pay in exchange for the software’s benefits” and “confer upon Versata a huge and undeserved windfall.”⁷ While this might have been a bug to the district court, to the Federal Circuit it was a feature of the Defend Trade Secrets Act (“DTSA”). The Federal Circuit, applying Sixth Circuit law, found that the district court was wrong to concern itself with a possible Versata “windfall” based on Ford’s significant misappropriation-driven savings. Indeed, the Federal Circuit noted that this category of damages is found directly in the DTSA’s text, which explicitly allows a court to award “damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss.”⁸ The Federal Circuit found a 2008 Tenth Circuit Case, Russo v. Ballard Medical Products, particularly instructive.⁹ There, the court acknowledged that “although unjust enrichment damages ‘put [the plaintiff] in a much better position than if he had entered a licensing agreement … under Utah law, [defendant], as the party that acted wrongfully, must assume the risk it took by misappropriating rather than licensing [the trade secret].’”¹⁰ In other words, corporate actors should play by the rules; if not, they might learn that trade secret damages awards can dwarf the cost they could have paid. Because the district court’s decision to limit Versata’s damages theories to those based solely on the parties’ licensing history was error, the Federal Circuit found that Versata was effectively hamstrung at trial and during post-trial proceedings. Accordingly, the Federal Circuit partially vacated the trial court’s decision to zero out the trade secret damages award and remanded for a new trial on trade secret misappropriation damages.¹¹ Versata’s Contract Damages Were Proper and Should Be Reinstated Under Michigan law, damages for a breach of contract claim must be measured with “reasonable certainty,”¹² but “mathematical certainty” is not required.¹³ When a jury issues a contractual damages award, such award “must stand unless it is (1) beyond the range supportable by proof; or (2) so excessive as to shock the conscience; or (3) the result of a mistake.”¹⁴ The district court concluded that Versata’s approximately $82 million in contract damages could not stand because Versata had purportedly failed to present any evidence to aid the jury in this calculation.¹⁵ The Federal Circuit disagreed. Simply put, the Federal Circuit found that Versata met its burden. Specifically, at trial, Versata’s counsel presented three base damages amounts based on the parties’ licensing history: (1) $17 million (based on the amount Versata offered to license its software after the initial deal expired); (2) $14.95 million (the amount Ford paid Versata in the final year of the contract); and (3) $10.95 million (the base license fee under the MSSA, which amount did not include service and/or maintenance). Versata’s counsel told the jury to multiply any of those figures by 7.5 years, which represented “the period from the start of Ford’s misappropriation through trial.”¹⁶ The ultimate damages award of $82,260,000 reflected $10.97 million for each of the 7.5 years that Ford breached the MSSA. Because this damages figure was neither “beyond the range supported by proof,” nor “so excessive as to shock the conscience,” the Federal Circuit ordered it reinstated. Ramifications Versata’s win, led by Jeffrey Lamken of MoloLamken, is a shot in the arm for trade secret plaintiffs. A plaintiff’s ability to win substantial unjust enrichment damages, i.e., “damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss,” is a driving factor in bringing a trade secret misappropriation claim. Limiting those damages to only “royalties-based damages models” would handcuff plaintiffs and turn trade secret damages into contract damages, in direct contravention of the DTSA. This decision should put corporate defendants on notice to think twice before stealing trade secrets. _ ¹ Op. at 3. ² Ford initially sued Versata, seeking a declaratory judgment that it had not infringed upon Versata’s IP or misappropriated Versata’s trade secrets. In response, Versata counterclaimed, alleging trade secret misappropriation and breach of contract. ³ Op. at 4. ⁴ Id. ⁵ Id. at 5. ⁶ Id. at 5-6. ⁷ Op. at 4. ⁸ Op. at 7 (quoting 18 U.S.C. § 1836(b)(3)(B)(i)-(ii)). The court noted that the Michigan Unfair Trade Secrets Act (“MUTSA”) ⁹ 550 F.3d 1004, 1020 (10th Cir. 2008). The Russo court was interpreting the Utah Trade Secrets Act, “which includes the same language as the DTSA and MUTSA.” Id. at 1021. ¹⁰ Op. at 8-9. ¹¹ Op. at 11-12. ¹² Doe v. Henry Ford Health Sys.¸865 N.W.2d 915, 922 (Mich. App. 2014). ¹³ Chelsea Inv. Grp., LLC v. Chelsea, 792 N.W.2d 781, 792 (Mich. App. 2010). ¹⁴ Advance Sign Grp., LLC v. Optec Displays, Inc., 722 F.3d 778, 787 (6th Cir. 2013). ¹⁵ Op. at 13. ¹⁶ Id.
Chambers & Partners, a leading independent legal research company, has once again recognized Certum Group and William Marra as leaders in the U.S. litigation finance industry. For the second consecutive year, Certum Group earned a Band 2 ranking in Chambers’ intellectual property litigation funding category, placing the firm among a small group of U.S. funders recognized as leaders in patent and IP finance. William Marra, a director at Certum Group, was again ranked individually, recognized in Band 3 for his work in litigation support. Reviewers interviewed by Chambers spoke to the depth and discipline of the Certum team: Certum has “some of the smartest people in the industry working there. I really respect them: they are efficient, they know the market, make smart decisions and are very discerning.” Certum’s team has “highly sophisticated legal and practical minds with an excellent grasp of litigation financing and the ebbs and flows of the litigation space.” “Certum Group are super credible, wonderful people. They are all real lawyers and they all care about our business.” One reviewer described Will as “bar none the most sophisticated, practical, partner-oriented funding professional I have worked with in my years of litigation funding involvement,” noting that he “has helped me shape cases in ways that dramatically improved their litigation and settlement posture” and is “adept and intuitively knowing of how to get to the right solutions.” Others described Will as “an excellent partner” and as someone who “bases decisions on fundamentals and has strong strategic vision.” Click here to see the complete rankings.
Certum Group is pleased to announce that Suneal Bedi has joined the company as our Scholar in Residence. Suneal Bedi is an Associate Professor of Business Law & Ethics and Jerome Bess Faculty Fellow at the Kelley School of Business at Indiana University. He is also the Research Director at the Institute for Corporate Governance and Ethics. He teaches classes in corporate law and business ethics. Professor Bedi has written extensively on litigation finance and intellectual property in various outlets including Vanderbilt Law Review, USC Law Review, Harvard Journal of Law & Technology, Alabama Law Review, and has a forthcoming piece which empirically measures the value of litigation finance in the NYU Law Review. His work broadly seeks to analyze the marketplace effects of litigation finance with an emphasis on discussing the investment vehicle outside of the courtroom. Professor Bedi also brings an expertise in business ethics to the field and recently co-authored a textbook on the same titled The Vision of the Firm. He has assisted in many cases as an expert witness testifying on both IP damages and the business ethics of litigation finance. “It’s important that academic researchers spend time in the field learning how things actually work and I’m grateful for this opportunity,” Bedi said. He has a B.A. in Economics from Swarthmore College, a J.D. from Harvard Law School, an M.S. in Marketing and joint PhD in Business Ethics and Marketing from The Wharton School at the University of Pennsylvania. Before academia, he worked as a private equity associate at the Boston office of Ropes & Gray, LLP. See Suneal's announcement on Bloomberg Law , and learn more about his role at Certum Group HERE .