Waymo LLC v. Uber Technology, Inc. et al. (Order on Acquisition Damages January 18, 2018)

As we all watch the Waymo v. Uber trial unfold this week, we thought it interesting to discuss Judge Alsup’s order issued on the eve of trial. The order strikes Waymo’s new theory regarding damages associated with the acquisition of the trade secrets at issue, as distinguished from damages associated with acquisition and use of those trade secrets.

Judge Alsup concludes that Waymo had not preserved its right to proffer a damages theory based upon Uber’s “acquisition” alone, but instead had only offered damages theories, previously struck, regarding the use of the trade secrets.

Fascinating to us is the notion that trade secret damages may be derived solely from “acquisition,” as opposed to acquisition and use/benefit.  Looking back at the motions written by both parties attempting to answer Judge Alsup’s question about whether “acquisition alone” is enough to support “an unjust enrichment theory,” it appears both sides conflate monetary remedies (such as unjust enrichment) with actual damage.  Our understanding is that damages experts are not retained simply to sum up values found in financial schedules, but rather to follow acceptable methodologies to quantify harm.  They are to apply their special understanding and expertise to provide analysis that laypersons could not do themselves.

Equating an “acquisition” to a damages analysis seems incorrect. We note that Judge Alsup was careful not to use the term “damages” in his questions to the attorneys on the subject of this acquisition issue.  Yet briefs provided by both attorneys do relate the acquisition of the trade secrets alone with “damages”; whereas we believe such quantification should be considered “a monetary remedy.”



Waymo LLC v. Uber Technologies, et al. (November 6, 2017)

Anchoring is the concept of tying one’s ship to a mooring to keep it from drifting into the open seas.  In the late 1970’s Kahneman and Tversky determined that people can unconsciously tie opinions to unrelated moorings which keep them within a constrained area.

Anchoring may be found in all aspects of decision making.  And many academics have determined that juries anchor their opinions to potentially unrelated aspects of a matter.  For example, in Uniloc USA v. Microsoft, the court notes that “the ‘$19 billion cat was never put back into the bag,'” suggesting that once a jury hears a large number, its opinion regarding damages can be anchored to that number.  This appears to be the number one reason why the entire market value rule (EMV) and the smallest saleable practicing unit (SSPU) have become so important in damages.

In his recent opinion, Judge Alsup appears to conclude that the trade secret’s damages expert in the Waymo matter was in danger of anchoring the jury with a large value:

In short, anchoring issues appear to have reached the trade secret realm.