Most jurisdictions permit a recovery of both actual loss caused by trade secret misappropriation and any unjust enrichment gained by the culprit so long as the enrichment is not also included in the "actual loss" portion of the equation. If such damages are not easily proven, the aggrieved party may seek to impose a "reasonable royalty" damages. In addition, if the conduct leading to the trade secret misappropriation was willful and malicious, most states permit the imposition of punitive damages and the award of attorney's fees.
Actual Loss
The first measure of damages offered for trade secret misappropriation is compensation for your actual losses. This includes any verifiable loss in sales or loss of contracts associated with the information being leaked. Actual losses may be adjusted depending on actions taken by you to mitigate losses, such as filing an injunction or contacting the person threatening the leak and reminding them of their obligation.
Unjust Enrichment
If the culprit who leaked the information was paid for his dirty work or otherwise rewarded for his crime, then there may be unjust enrichment damages available also. Unjust enrichment is the receipt of an unfair benefit at the misfortune of another. The law requires that the person must return the money that they unjustly took to the injured party. So, for example, if Pepsi paid a retired Coke employee 5 million for his part of the recipe, the old employee and Pepsi would have to pay the 5 million back to Coke.
Reasonable Royalty Damages
If actual damages cannot be calculated, then the court will assign a royalty that the culprit must pay. A royalty is the equivalent of that person buying the trade secret directly from your company for a limited use. So, back to the Coke recipe example, if the court could not calculate the damage caused by Pepsi finding out part of the recipe, then they may simply charge the employee and Pepsi a set amount for the knowledge they obtained.
Trade secret misappropriation is a very complex form of litigation that require field experience for accurate calculations of damages. If someone has misappropriated your trade secret, contact a trade secret attorney immediately for assistance.