N.C.P.I.—Civil 813.98

The (state number) issue reads:

“In what amount has the plaintiff been damaged by the

misappropriation of the plaintiff's trade secret?”

If you have answered all the preceding issues in favor of the

plaintiff, the plaintiff is entitled to recover actual damages in the amount

proved.

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, the

amount of actual damages sustained as a result of the misappropriation

of the plaintiff's trade secret.

The plaintiff may recover actual damages in the amount of [the

plaintiff’s economic loss] [the amount by which the defendant was

unjustly enriched by the misappropriation] (whichever is greater).1

[Economic loss may include:

[any loss in net revenues suffered (or to be suffered) by the

plaintiff;]

[any loss in the value of the plaintiff's business as a going

concern;] [and]

[the value of the plaintiff's business as a going concern just before

it was destroyed. That is, the amount a willing buyer would pay for the

business, and a willing seller would accept, neither being in need of an

immediate purchase or sale]; [and]

[state any other measure of economic loss supported by the

evidence].]

[Unjust enrichment may include:

[any net revenues realized (or to be realized) by the defendant

from the trade secret;]

[any increase in the value of the defendant's business as a going

concern resulting from the trade secret;] [and]

[the value of any benefit from the trade secret received and

retained by the defendant;] [and]

[state any other measure of unjust enrichment supported by the

evidence].]

The plaintiff's actual damages are to be reasonably determined

from the evidence presented in the case. The plaintiff is not required to

prove with mathematical certainty the extent of [the plaintiff’s economic

loss] [the defendant's unjust enrichment] in order to recover actual

damages. Thus, the plaintiff should not be denied actual damages

simply because they cannot be calculated with exactness or a high degree

of mathematical certainty. An award of actual damages must be based

on evidence which shows the amount of the plaintiff's actual damages

with reasonable certainty.2 However, you may not award any actual

damages based upon mere speculation or conjecture.3

Finally, as to this issue on which the plaintiff has the burden of

proof, when you find by the greater weight of the evidence the amount of

actual damages sustained by the plaintiff by reason of [the plaintiff’s

economic loss] [the defendant's unjust enrichment], then it will be your

duty to write [that amount] [the greater of those two amounts] in the

blank space provided.