AMI 2604 Measure of Damages—Misappropriation of Trade Secrets

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2604

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 26. Trade Secrets

AMI 2604 Measure of Damages—Misappropriation of Trade Secrets

(A) The value of any net profits lost by (plaintiff) [and the present value of any net profits reasonably certain to be lost by (plaintiff) in the future], [and]

(B) [To the extent not included within any such lost profits,] [The] [the] value of any net profit unjustly gained by (defendant) [and the present value of any unjust net profits reasonably certain to be gained in the future by (defendant)].

(C) [To the extent not included within the foregoing element(s),][The][the] value of (insert description of benefit)[or][any other benefit] unjustly gained by (defendant) as a result of the misappropriation.

NOTE ON USE

Within the format of AMI 2201, use the appropriate element(s) from paragraphs (A) and (B). Use paragraph (C) only if there is evidence of unjust enrichment to the defendant in a form other than profits, such as the value placed on the trade secret by the parties.

Use the introductory bracketed clause in paragraphs (B) and (C) if multiple elements are submitted.

COMMENT

This instruction is based upon Ark. Code Ann. § 4-75-606. The statute uses the terms “actual loss” and “unjust enrichment” to describe the elements of damage. The terms include lost profits. Saforo & Associates, Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). “Lost profits” under the statute means net profit. Brown v. Ruallam Enterprises, Inc., 73 Ark. App. 296, 44 S.W.3d 740 (2001). Annot., Damages—Misappropriation of Trade Secrets, 11 A.L.R.4th 12 discusses several other elements of damage and was cited with approval in Saforo.

Pursuant to Ark. Code Ann § 4-75-606(b), “a complainant may recover not only for the actual loss as may be shown by profits, but also the unjust enrichment caused by the misappropriation where that is not taken into account in computing damages for actual loss.” Pro-Comp Management, Inc. v. R.K. Enterprises, LLC, 366 Ark. 463, 237 S.W.3d 20 (2006).

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