This is the first post in Certum Group's seven-part series bringing our Trade Secret Litigation Playbook to the blog. It draws on Part I of the Playbook, Why Trade Secret Claims Matter Now. Read or download the full Playbook here . In 2025, federal trade secret filings reached an all-time high — roughly 1,551 new cases in U.S. district courts, up from 1,203 just two years earlier. 1 That is not a blip, and it is not a quirk of the docket. It is the visible edge of a structural shift in how companies create value and how easily that value now walks out the door. Trade secrets used to be the quiet cousin of the intellectual property family — patents got the valuation multiples, trademarks got the brand meetings. That era is over. For a lot of growth-stage companies, the trade secret portfolio can be worth more than the patents, copyrights, and trademarks combined. It rarely shows up on the balance sheet, and it is almost never insured against the risk it actually faces — which is not that someone will design around it, but that someone will take it. So it is worth understanding why the numbers are climbing, because each driver points to a specific exposure that a business owner can do something about. Employees move more, and faster The single largest source of trade secret disputes is not corporate espionage. It is ordinary talent mobility. Roughly 60% of misappropriation cases involve a departing employee, typically heading to a direct competitor. Tenure has shortened, remote work has normalized discreet cross-company job searches, and the volume of departures that touch sensitive information has grown accordingly. The prototypical case a decade ago was a sales rep leaving with a customer list. Today it is a design lead, a data scientist, or a process engineer carrying the company's hardest-won know-how — sometimes in a file, more often in their head. The cost of taking information has collapsed A USB drive, a personal cloud folder, an auto-forwarded email rule, a screenshot script — what once required filing cabinets and a truck now takes a few minutes. The technical friction that used to deter casual misappropriation is largely gone. That has two consequences. It makes the taking easier, and it makes the forensic trail richer: badge records, git commit histories, egress logs, and download timestamps now tell a story that is often more persuasive to a judge than any witness. The evidence exists. The question is whether the claim holder preserves it before it rolls off a ninety-day retention setting. AI has raised the stakes Machine-learning models are trained on data, code, and process knowledge that is frequently proprietary. Competitors racing to ship an equivalent product have a powerful incentive to shortcut the long, expensive path of independent development — and in software, life sciences, financial services, and advanced manufacturing, a six-to-twelve-month head start can be worth hundreds of millions of dollars. When the crown jewels are unpatented know-how, misappropriation is not a nuisance. It is an existential competitive event. Apple's 2026 trade secret suit against OpenAI — built around aggressive hiring from Apple's hardware teams — is only the most visible example of a pattern now playing out across the economy. A single, credible venue Finally, the law itself has changed the calculus. Since 2016, the federal Defend Trade Secrets Act has given claim holders a nationwide cause of action, federal discovery tools, and remedies strong enough to matter — including an extraordinary ex parte seizure procedure. 2 Enforcement is more predictable than it was under a patchwork of state statutes, and predictability attracts plaintiffs. It also attracts capital, which is where a firm like ours enters the picture. What it means for you From the underwriter's chair, the trend line is unambiguous: more valuable secrets, more mobile employees, cheaper theft, and a legal framework that rewards claim holders who move deliberately. The companies that fare worst are the ones that treated their secrecy program as a compliance checkbox and discover, only in a complaint, that it was the strategy all along. The companies that fare best have thought about identification, preservation, and enforcement economics before they ever need them. If your business runs on information other people would love to have, the record filing numbers are not abstract. They are a forecast. Go deeper with the Playbook. This post covers one piece of a much larger picture. For the full framework — what the law requires, what a strong pre-filing case looks like, how damages experts value these matters, how counsel fee structures change your economics, and how litigation finance fits in — read Certum Group's Trade Secret Litigation Playbook , our field guide for business owners and the counsel who advise them: certumgroup.com/the-trade-secret-playbook . And if you are evaluating a live dispute — or simply want to pressure-test what a matter is worth and how it might be funded — get in touch. A confidential conversation with Certum is free and carries no obligation, whether or not you ultimately seek funding. Reach us at certumgroup.com/contact-us . Sources 1. Lex Machina, Trade Secret Litigation Report (2026), reporting an all-time high in federal trade secret case filings in 2025; see also Lex Machina, Trade Secret Litigation Report (2024) (1,203 federal filings in 2023). 2. Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 18 U.S.C. Section 1836 et seq.
Certum’s William Marra was recently quoted in an article by MLex, a LexisNexis publication, on the widening debate over third-party litigation funding disclosure. “Litigation finance is the capital markets come to law,” Marra told the publication, emphasizing that funders are one of the few sources of capital available to an individual or small business facing a far larger opponent. Responding to claims that litigation funding is a vehicle for foreign influence, Marra observed that “there’s just no evidence [of foreign influence] in the third-party funding space,” emphasizing that any real threat should be addressed through regulation covering foreign influence in litigation “in all of its forms.” The article also referenced Marra’s forthcoming New York University Law Review article on the third-party funding disclosure debate, which argues that any court-made disclosure rule should apply evenhandedly to all outside financing, and should not target only one form of third-party finance. “If you want to genuinely have a third-party litigation funding disclosure rule, then disclose all forms of third-party funding. Don’t just disclose the type of non-recourse litigation funding seeking money damages that is disproportionately used by poor individuals and small businesses.” The full article, Patent Litigation Drawn into Broader Third-Party Funding Disclosure Debate, is available here .
On July 10, 2026, the most valuable company in the world accused the most talked-about company in the world of theft. Apple sued OpenAI in the U.S. District Court for the Northern District of California, alleging that OpenAI built its hardware ambitions on a foundation of Apple’s misappropriated trade secrets.¹ Few disputes touch as much of Certum’s Trade Secret Litigation Playbook at once: reasonable measures to guard a secret, identifying with particularity what was taken, and the human-centered points — recruiting and employee departures — where secrets actually walk out the door. Nearly every core theme in Certum Group’s Trade Secret Guide is in this case. And the lesson beneath it is worth sitting with: for the companies with the most to protect, trade secret litigation is not a last resort. It’s a front-line instrument of competitive strategy. Background The dispute sits at the intersection of two of the most closely watched storylines in technology. In 2025, OpenAI acquired io, the hardware venture founded by former Apple design chief Jony Ive and a group of other Apple alumni, for a reported $6.5 billion, and set out to build its first consumer hardware device, widely expected to compete directly with the iPhone.² To staff that effort, OpenAI hired aggressively from Apple. According to the complaint, more than 400 former Apple employees now work at OpenAI.³ Two of those hires anchor Apple’s allegations. Tang Yew Tan spent roughly 24 years at Apple, where he served as a vice president of product design responsible for the iPhone and Apple Watch, before becoming OpenAI’s chief hardware officer. Chang Liu spent about eight years at Apple as a senior systems electrical engineer before departing for OpenAI in 2026.⁴ Apple’s theory is not that a single rogue employee walked out the door with a file. It is that the movement of talent was accompanied by a coordinated effort, one Apple describes as operating “at every level," to extract and exploit the confidential information those employees carried in their heads and on their devices.⁵ The Allegations The complaint reads less like a garden-variety departure dispute and more like a catalog of the exact conduct the Trade Secret Guide warns companies to watch for. Among Apple’s central allegations: Apple claims OpenAI’s hardware leadership directed recruiters to use Apple’s confidential project code names during the hiring process, and instructed job candidates to bring “actual parts” and “CAD/design artifacts” to their interviews.⁶ It alleges that OpenAI circulated internal Apple documents marked “Need to Know” that coached departing employees on how to evade Apple’s exit-security procedures, including the “dreaded walkout,” and to alert OpenAI before signing their exit agreements.⁷ The specifics attributed to individual employees are what give the complaint its texture. Apple alleges that Chang Liu exploited an authentication bug to reach internal network storage after his access should have been cut off, messaging a colleague, “LOL, I found out I can access the [network storage], so funny,” and noting within hours of his departure that he “still ha[d] another computer.”⁸ And Apple alleges that io “exploited and used Apple’s secret, proprietary industrial design techniques,” misleading one of Apple’s own manufacturing partners about whether it was authorized to use a confidential metal-finishing technique.⁹ The trade secrets Apple says are at risk span the full arc of its product-development process: technical specifications for unreleased technologies, engineering presentations and prototype data, component and vendor selection processes, and the proprietary manufacturing techniques that turn a design into a shippable product.¹⁰ Notably, Apple’s opening ask is not a damages windfall. It is protection. Apple seeks to bar OpenAI from using or disclosing the information at issue, to compel the return of its confidential materials, and to preserve the evidence.¹¹ In other words, Apple is using the courthouse to do what its NDAs and exit interviews were supposed to do: keep its edge inside the building. OpenAI’s Response OpenAI has pushed back hard, and its answer is a preview of the fault lines any trade secret plaintiff should expect to fight over. On August 6, 2026, OpenAI moved to dismiss, characterizing the alleged conduct as “benign, lawful conduct” that Apple has mischaracterized, and arguing that its hardware executives simply followed standard industry recruiting practices.¹² As to Chang Liu, OpenAI contends he was “trying to help Apple” by assisting former colleagues who asked him to locate work information, not stealing anything.¹³ More pointed, and more instructive, is OpenAI’s argument that Apple’s own conduct undermines its case. OpenAI asserts that Apple allowed employees to use personal iCloud accounts for work and failed to properly revoke access when they left — noting that an Apple manager remained logged into Chang Liu’s personal iCloud account after his departure in order to transfer files.¹⁴ From that, OpenAI argues that Apple’s offboarding lapses created “confusion and unwanted access issues that Apple now characterizes as theft.” OpenAI also contends that Apple has not identified its trade secrets with adequate specificity, pointing instead to “generic categories of the product-development process.”¹⁵ OpenAI must file its full response by August 17, 2026, with oral argument on the motion set for October 1, 2026.¹⁶ Whatever the merits, OpenAI’s playbook is worth studying precisely because it is so conventional. Reasonable secrecy measures and identification of the trade secret with particularity are two of the elements every misappropriation claim rises or falls on, and they are exactly where a well-resourced defendant will apply pressure first. What This Means It is easy to read a case like this as celebrity litigation between two of the most valuable enterprises on earth. The more useful reading is that trade secret law has become core infrastructure for how modern companies protect competitive advantage. Apple did not respond to a $6.5 billion competitive threat with a press release or a patent portfolio. It responded with a trade secret complaint, because in a business where the crown jewels are unpatented know-how — manufacturing techniques, vendor relationships, unreleased designs — the Defend Trade Secrets Act and its state-law counterparts are the sharpest tools available. The case also throws the Trade Secret Guide’s central lessons into relief. The value of a trade secret program is only as good as the “reasonable measures” behind it; OpenAI’s opening move is to argue that Apple’s own iCloud and offboarding practices were not reasonable at all. The ability to describe what was taken, with specificity, is not a formality. It is frequently the whole ballgame at the pleading stage. And the human element — recruiting, exit procedures, the “dreaded walkout” — is where secrets actually leak, long before anyone reaches a courtroom. Companies that treat these as compliance checkboxes learn the hard way, in a complaint, that they were the strategy all along. For those of us who evaluate disputes for a living, Apple v. OpenAI is also a reminder of why high-stakes trade secret matters are among the most compelling on the plaintiff’s side. The conduct is often concrete and documentable, the competitive stakes are enormous, and, as the Federal Circuit’s recent decision in Versata Software v. Ford underscored, the damages framework can reach the full value of what the misappropriation delivered to the wrongdoer, not merely a discounted license fee. That combination is exactly what makes these cases worth pursuing, and worth backing. Apple’s complaint will be tested, as it should be, and the allegations remain just that — allegations. But the strategic signal is already unmistakable. When the most valuable company in the world wants to defend its future, it reaches for trade secret law. Certum Group’s Trade Secret Guide is built to help plaintiffs and their counsel do the same, whatever their size, and this case is a live illustration of why that playbook matters now more than ever. Certum Group can help. If you are evaluating a trade secret dispute or want to talk through options for funding or de-risking one, get in touch . Footnotes ¹ Complaint, Apple Inc. v. OpenAI, Inc. , No. 5:26-cv-07078 (N.D. Cal. filed July 10, 2026); see Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ² The wildest allegations in Apple's trade secrets lawsuit against OpenAI , TechCrunch (July 13, 2026). ³ Id. ⁴ Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ⁵ Apple sues OpenAI alleging trade secret theft, says scheme was "at every level," CNBC (July 10, 2026). ⁶ The wildest allegations in Apple's trade secrets lawsuit against OpenAI , TechCrunch (July 13, 2026). ⁷ Id. ⁸ Id. ⁹ Id. ¹⁰ Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ¹¹ Id. ¹² OpenAI Asks Judge to Toss Apple's Trade Secrets Lawsuit , Claims Journal (Aug. 7, 2026). ¹³ Id. ¹⁴ OpenAI says Apple's own security practices undermine its trade secrets case , TechCrunch (Aug. 6, 2026). ¹⁵ Id. ¹⁶ OpenAI Asks Judge to Toss Apple's Trade Secrets Lawsuit , Claims Journal (Aug. 7, 2026).
Certum Group is pleased to announce that Chris Seidl has been named to the 2026 IAM Strategy 300: The World’s Leading IP Strategists list. IAM Strategy 300 is a global ranking of IP strategists who are leaders in developing and implementing strategies to maximize the value of IP portfolios. IAM identifies individuals through extensive research annually. Chris leads Certum’s IP finance strategy, including IP licensing, litigation funding, and acquisitions. This is the fifth consecutive year Chris has been included on the IAM Strategy 300 list. Click here to see the complete rankings.
Artificial intelligence is quickly changing how legal work is researched, drafted, reviewed, and delivered. But while AI can improve efficiency, it also creates serious risks, including inaccurate analysis, fabricated citations, and potential court sanctions. In this webinar, Certum Group brings together legal and business experts to discuss how lawyers can use AI to strengthen their work without compromising accuracy, professional judgment, or accountability.
Artificial intelligence is transforming all corners of the economy, and the legal profession is no different. At first it seemed the stories about AI and the law were all negative, as many lawyers , even those at some of the most prestigious firms , found themselves sanctioned for filing briefs with hallucinated cases. More recently, the news cycle has turned, as existing law firms embrace AI and new firms sprout to deliver AI-first legal services. Just recently, top lawyers from Kirkland & Ellis and Quinn Emanuel each left to launch their own law firms. Meanwhile, Kirkland, the AmLaw 1 firm, announced it would invest $500 million to develop its own proprietary AI system. [ Click here to read a Bloomberg article by Certum’s Will Marra on what Kirkland’s AI announcement means for the future of third-party legal finance.] This can be dizzying for many lawyers. Clients want them to use artificial intelligence. Competitor law firms are using AI. But the risks of misusing AI are high and can even include sanctions and media coverage that gives lie to the old adage that “all news is good news.” A Transformative New Tool To help lawyers navigate this landscape, Certum Group recently hosted a webinar to help lawyers navigate the landscape. Our featured speaker was Michael Showalter , founder of Showalter PLLC, a litigation firm built around AI tools, and a former appellate lawyer at Gibson Dunn and Wiley Rein. The conversation was led by Suneal Bedi , Certum’s Scholar in Residence who is a professor at Indiana University’s Kelley School of Business. This was the first in a series of conversations that Professor Bedi will lead designed to help Certum’s clients navigate the toughest challenges they face today. In the webinar, Showalter demonstrated the power of AI by sharing several moments that “blew his mind” over the past year: A first draft of a law review article that was better than what he’d get from most junior lawyers. T urning a project that once took 100–150 hours into roughly only 15. A flawless table of authorities, table of contents, and cite-check on a brief, produced in about ten minutes. He noted he’d never once received a flawless table of authorities from a human paralegal. Sophisticated legal reasoning; identifying an overlooked antecedent argument in a forthcoming Yale Law Journal article showing the tools do real analysis, not just “automatable” formulaic work. He now estimates he accomplishes in a single day what would have taken him 40 hours of work back in 2022. Three key takeaways emerged from the webinar. To Be a Good Lawyer With AI, First Be a Good Lawyer AI cannot replace legal judgment, but it can amplify it. Lawyers should not outsource the job of lawyers to an AI model. They should treat the models instead like highly capable but error-prone junior associates. This means they should ensure the model has sufficient context about the legal issue they’re asking it to address. And you should give senior-lawyer leadership and oversight to its work. You should also treat AI errors as inevitable, the same way junior lawyers will inevitably make mistakes. Be vigilant to when the model gets something wrong, fix the error, and do what you can to avoid the error from recurring in the future. And you should iterate constantly. AI workflows cannot be completed in a single prompt. Lawyers should consistently redline and comment on the AI’s outputs to refine and perfect the work product. Guard Against Hallucinations and Errors Lawyers are rightly concerned about the prospect that AI may rely on fabricated cases. The webinar offered some candid commentary on this issue: First, the technology has changed dramatically between 2024 and 2026. The incidence of hallucinated and fabricated cases is much rarer today than in the past, partly because the frontier labs have focused on addressing this problem. Second, verification tools now exist. Tools like Veritas now exist to compare every quote in a brief against its primary source, catching errors rather than predicting text. Third, senior oversight remains non-negotiable. Lawyers should not assume an AI will accurately describe a case any more than they should assume a junior associate will do so. Lawyers should read and review every case they cite for accuracy and reliability. Meet Your Clients’ Expectations and the Courts’ Requirements Finally, it is clear that the market is shifting towards the expectation that lawyers will use AI. Even the most sophisticated clients are now demanding that their clients use AI. And they are relying on the existence of AI to push down rates and demand that simpler tasks get outsourced to artificial intelligence. For example, Sebastian Niles, the President and Chief Legal Officer of Salesforce, recently published an article arguing that the integration of AI into law firms should be a baseline expectation. [Harvey AI’s CEO, Winston Weinberg, was recently the keynote speaker at an NYU Law School conference co-organized by Professor Bedi and Certum’s Will Marra. Click here to learn more about the takeaways from that conference.] At the same time, courts have stepped in to closely police how law firms are using AI. Some courts are even amending local rules to regulate the use of AI in legal filings. To be a great lawyer today and tomorrow, lawyers need to stay on the cutting edge of artificial intelligence. Clients demand it, and courts do too. Lawyers should continue to educate themselves about how to best use AI to improve and amplify their work, but not to replace it.
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 .
This is the first post in Certum Group's seven-part series bringing our Trade Secret Litigation Playbook to the blog. It draws on Part I of the Playbook, Why Trade Secret Claims Matter Now. Read or download the full Playbook here . In 2025, federal trade secret filings reached an all-time high — roughly 1,551 new cases in U.S. district courts, up from 1,203 just two years earlier. 1 That is not a blip, and it is not a quirk of the docket. It is the visible edge of a structural shift in how companies create value and how easily that value now walks out the door. Trade secrets used to be the quiet cousin of the intellectual property family — patents got the valuation multiples, trademarks got the brand meetings. That era is over. For a lot of growth-stage companies, the trade secret portfolio can be worth more than the patents, copyrights, and trademarks combined. It rarely shows up on the balance sheet, and it is almost never insured against the risk it actually faces — which is not that someone will design around it, but that someone will take it. So it is worth understanding why the numbers are climbing, because each driver points to a specific exposure that a business owner can do something about. Employees move more, and faster The single largest source of trade secret disputes is not corporate espionage. It is ordinary talent mobility. Roughly 60% of misappropriation cases involve a departing employee, typically heading to a direct competitor. Tenure has shortened, remote work has normalized discreet cross-company job searches, and the volume of departures that touch sensitive information has grown accordingly. The prototypical case a decade ago was a sales rep leaving with a customer list. Today it is a design lead, a data scientist, or a process engineer carrying the company's hardest-won know-how — sometimes in a file, more often in their head. The cost of taking information has collapsed A USB drive, a personal cloud folder, an auto-forwarded email rule, a screenshot script — what once required filing cabinets and a truck now takes a few minutes. The technical friction that used to deter casual misappropriation is largely gone. That has two consequences. It makes the taking easier, and it makes the forensic trail richer: badge records, git commit histories, egress logs, and download timestamps now tell a story that is often more persuasive to a judge than any witness. The evidence exists. The question is whether the claim holder preserves it before it rolls off a ninety-day retention setting. AI has raised the stakes Machine-learning models are trained on data, code, and process knowledge that is frequently proprietary. Competitors racing to ship an equivalent product have a powerful incentive to shortcut the long, expensive path of independent development — and in software, life sciences, financial services, and advanced manufacturing, a six-to-twelve-month head start can be worth hundreds of millions of dollars. When the crown jewels are unpatented know-how, misappropriation is not a nuisance. It is an existential competitive event. Apple's 2026 trade secret suit against OpenAI — built around aggressive hiring from Apple's hardware teams — is only the most visible example of a pattern now playing out across the economy. A single, credible venue Finally, the law itself has changed the calculus. Since 2016, the federal Defend Trade Secrets Act has given claim holders a nationwide cause of action, federal discovery tools, and remedies strong enough to matter — including an extraordinary ex parte seizure procedure. 2 Enforcement is more predictable than it was under a patchwork of state statutes, and predictability attracts plaintiffs. It also attracts capital, which is where a firm like ours enters the picture. What it means for you From the underwriter's chair, the trend line is unambiguous: more valuable secrets, more mobile employees, cheaper theft, and a legal framework that rewards claim holders who move deliberately. The companies that fare worst are the ones that treated their secrecy program as a compliance checkbox and discover, only in a complaint, that it was the strategy all along. The companies that fare best have thought about identification, preservation, and enforcement economics before they ever need them. If your business runs on information other people would love to have, the record filing numbers are not abstract. They are a forecast. Go deeper with the Playbook. This post covers one piece of a much larger picture. For the full framework — what the law requires, what a strong pre-filing case looks like, how damages experts value these matters, how counsel fee structures change your economics, and how litigation finance fits in — read Certum Group's Trade Secret Litigation Playbook , our field guide for business owners and the counsel who advise them: certumgroup.com/the-trade-secret-playbook . And if you are evaluating a live dispute — or simply want to pressure-test what a matter is worth and how it might be funded — get in touch. A confidential conversation with Certum is free and carries no obligation, whether or not you ultimately seek funding. Reach us at certumgroup.com/contact-us . Sources 1. Lex Machina, Trade Secret Litigation Report (2026), reporting an all-time high in federal trade secret case filings in 2025; see also Lex Machina, Trade Secret Litigation Report (2024) (1,203 federal filings in 2023). 2. Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 18 U.S.C. Section 1836 et seq.
Certum’s William Marra was recently quoted in an article by MLex, a LexisNexis publication, on the widening debate over third-party litigation funding disclosure. “Litigation finance is the capital markets come to law,” Marra told the publication, emphasizing that funders are one of the few sources of capital available to an individual or small business facing a far larger opponent. Responding to claims that litigation funding is a vehicle for foreign influence, Marra observed that “there’s just no evidence [of foreign influence] in the third-party funding space,” emphasizing that any real threat should be addressed through regulation covering foreign influence in litigation “in all of its forms.” The article also referenced Marra’s forthcoming New York University Law Review article on the third-party funding disclosure debate, which argues that any court-made disclosure rule should apply evenhandedly to all outside financing, and should not target only one form of third-party finance. “If you want to genuinely have a third-party litigation funding disclosure rule, then disclose all forms of third-party funding. Don’t just disclose the type of non-recourse litigation funding seeking money damages that is disproportionately used by poor individuals and small businesses.” The full article, Patent Litigation Drawn into Broader Third-Party Funding Disclosure Debate, is available here .
On July 10, 2026, the most valuable company in the world accused the most talked-about company in the world of theft. Apple sued OpenAI in the U.S. District Court for the Northern District of California, alleging that OpenAI built its hardware ambitions on a foundation of Apple’s misappropriated trade secrets.¹ Few disputes touch as much of Certum’s Trade Secret Litigation Playbook at once: reasonable measures to guard a secret, identifying with particularity what was taken, and the human-centered points — recruiting and employee departures — where secrets actually walk out the door. Nearly every core theme in Certum Group’s Trade Secret Guide is in this case. And the lesson beneath it is worth sitting with: for the companies with the most to protect, trade secret litigation is not a last resort. It’s a front-line instrument of competitive strategy. Background The dispute sits at the intersection of two of the most closely watched storylines in technology. In 2025, OpenAI acquired io, the hardware venture founded by former Apple design chief Jony Ive and a group of other Apple alumni, for a reported $6.5 billion, and set out to build its first consumer hardware device, widely expected to compete directly with the iPhone.² To staff that effort, OpenAI hired aggressively from Apple. According to the complaint, more than 400 former Apple employees now work at OpenAI.³ Two of those hires anchor Apple’s allegations. Tang Yew Tan spent roughly 24 years at Apple, where he served as a vice president of product design responsible for the iPhone and Apple Watch, before becoming OpenAI’s chief hardware officer. Chang Liu spent about eight years at Apple as a senior systems electrical engineer before departing for OpenAI in 2026.⁴ Apple’s theory is not that a single rogue employee walked out the door with a file. It is that the movement of talent was accompanied by a coordinated effort, one Apple describes as operating “at every level," to extract and exploit the confidential information those employees carried in their heads and on their devices.⁵ The Allegations The complaint reads less like a garden-variety departure dispute and more like a catalog of the exact conduct the Trade Secret Guide warns companies to watch for. Among Apple’s central allegations: Apple claims OpenAI’s hardware leadership directed recruiters to use Apple’s confidential project code names during the hiring process, and instructed job candidates to bring “actual parts” and “CAD/design artifacts” to their interviews.⁶ It alleges that OpenAI circulated internal Apple documents marked “Need to Know” that coached departing employees on how to evade Apple’s exit-security procedures, including the “dreaded walkout,” and to alert OpenAI before signing their exit agreements.⁷ The specifics attributed to individual employees are what give the complaint its texture. Apple alleges that Chang Liu exploited an authentication bug to reach internal network storage after his access should have been cut off, messaging a colleague, “LOL, I found out I can access the [network storage], so funny,” and noting within hours of his departure that he “still ha[d] another computer.”⁸ And Apple alleges that io “exploited and used Apple’s secret, proprietary industrial design techniques,” misleading one of Apple’s own manufacturing partners about whether it was authorized to use a confidential metal-finishing technique.⁹ The trade secrets Apple says are at risk span the full arc of its product-development process: technical specifications for unreleased technologies, engineering presentations and prototype data, component and vendor selection processes, and the proprietary manufacturing techniques that turn a design into a shippable product.¹⁰ Notably, Apple’s opening ask is not a damages windfall. It is protection. Apple seeks to bar OpenAI from using or disclosing the information at issue, to compel the return of its confidential materials, and to preserve the evidence.¹¹ In other words, Apple is using the courthouse to do what its NDAs and exit interviews were supposed to do: keep its edge inside the building. OpenAI’s Response OpenAI has pushed back hard, and its answer is a preview of the fault lines any trade secret plaintiff should expect to fight over. On August 6, 2026, OpenAI moved to dismiss, characterizing the alleged conduct as “benign, lawful conduct” that Apple has mischaracterized, and arguing that its hardware executives simply followed standard industry recruiting practices.¹² As to Chang Liu, OpenAI contends he was “trying to help Apple” by assisting former colleagues who asked him to locate work information, not stealing anything.¹³ More pointed, and more instructive, is OpenAI’s argument that Apple’s own conduct undermines its case. OpenAI asserts that Apple allowed employees to use personal iCloud accounts for work and failed to properly revoke access when they left — noting that an Apple manager remained logged into Chang Liu’s personal iCloud account after his departure in order to transfer files.¹⁴ From that, OpenAI argues that Apple’s offboarding lapses created “confusion and unwanted access issues that Apple now characterizes as theft.” OpenAI also contends that Apple has not identified its trade secrets with adequate specificity, pointing instead to “generic categories of the product-development process.”¹⁵ OpenAI must file its full response by August 17, 2026, with oral argument on the motion set for October 1, 2026.¹⁶ Whatever the merits, OpenAI’s playbook is worth studying precisely because it is so conventional. Reasonable secrecy measures and identification of the trade secret with particularity are two of the elements every misappropriation claim rises or falls on, and they are exactly where a well-resourced defendant will apply pressure first. What This Means It is easy to read a case like this as celebrity litigation between two of the most valuable enterprises on earth. The more useful reading is that trade secret law has become core infrastructure for how modern companies protect competitive advantage. Apple did not respond to a $6.5 billion competitive threat with a press release or a patent portfolio. It responded with a trade secret complaint, because in a business where the crown jewels are unpatented know-how — manufacturing techniques, vendor relationships, unreleased designs — the Defend Trade Secrets Act and its state-law counterparts are the sharpest tools available. The case also throws the Trade Secret Guide’s central lessons into relief. The value of a trade secret program is only as good as the “reasonable measures” behind it; OpenAI’s opening move is to argue that Apple’s own iCloud and offboarding practices were not reasonable at all. The ability to describe what was taken, with specificity, is not a formality. It is frequently the whole ballgame at the pleading stage. And the human element — recruiting, exit procedures, the “dreaded walkout” — is where secrets actually leak, long before anyone reaches a courtroom. Companies that treat these as compliance checkboxes learn the hard way, in a complaint, that they were the strategy all along. For those of us who evaluate disputes for a living, Apple v. OpenAI is also a reminder of why high-stakes trade secret matters are among the most compelling on the plaintiff’s side. The conduct is often concrete and documentable, the competitive stakes are enormous, and, as the Federal Circuit’s recent decision in Versata Software v. Ford underscored, the damages framework can reach the full value of what the misappropriation delivered to the wrongdoer, not merely a discounted license fee. That combination is exactly what makes these cases worth pursuing, and worth backing. Apple’s complaint will be tested, as it should be, and the allegations remain just that — allegations. But the strategic signal is already unmistakable. When the most valuable company in the world wants to defend its future, it reaches for trade secret law. Certum Group’s Trade Secret Guide is built to help plaintiffs and their counsel do the same, whatever their size, and this case is a live illustration of why that playbook matters now more than ever. Certum Group can help. If you are evaluating a trade secret dispute or want to talk through options for funding or de-risking one, get in touch . Footnotes ¹ Complaint, Apple Inc. v. OpenAI, Inc. , No. 5:26-cv-07078 (N.D. Cal. filed July 10, 2026); see Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ² The wildest allegations in Apple's trade secrets lawsuit against OpenAI , TechCrunch (July 13, 2026). ³ Id. ⁴ Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ⁵ Apple sues OpenAI alleging trade secret theft, says scheme was "at every level," CNBC (July 10, 2026). ⁶ The wildest allegations in Apple's trade secrets lawsuit against OpenAI , TechCrunch (July 13, 2026). ⁷ Id. ⁸ Id. ⁹ Id. ¹⁰ Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ¹¹ Id. ¹² OpenAI Asks Judge to Toss Apple's Trade Secrets Lawsuit , Claims Journal (Aug. 7, 2026). ¹³ Id. ¹⁴ OpenAI says Apple's own security practices undermine its trade secrets case , TechCrunch (Aug. 6, 2026). ¹⁵ Id. ¹⁶ OpenAI Asks Judge to Toss Apple's Trade Secrets Lawsuit , Claims Journal (Aug. 7, 2026).
Certum Group is pleased to announce that Chris Seidl has been named to the 2026 IAM Strategy 300: The World’s Leading IP Strategists list. IAM Strategy 300 is a global ranking of IP strategists who are leaders in developing and implementing strategies to maximize the value of IP portfolios. IAM identifies individuals through extensive research annually. Chris leads Certum’s IP finance strategy, including IP licensing, litigation funding, and acquisitions. This is the fifth consecutive year Chris has been included on the IAM Strategy 300 list. Click here to see the complete rankings.
Artificial intelligence is quickly changing how legal work is researched, drafted, reviewed, and delivered. But while AI can improve efficiency, it also creates serious risks, including inaccurate analysis, fabricated citations, and potential court sanctions. In this webinar, Certum Group brings together legal and business experts to discuss how lawyers can use AI to strengthen their work without compromising accuracy, professional judgment, or accountability.
Artificial intelligence is transforming all corners of the economy, and the legal profession is no different. At first it seemed the stories about AI and the law were all negative, as many lawyers , even those at some of the most prestigious firms , found themselves sanctioned for filing briefs with hallucinated cases. More recently, the news cycle has turned, as existing law firms embrace AI and new firms sprout to deliver AI-first legal services. Just recently, top lawyers from Kirkland & Ellis and Quinn Emanuel each left to launch their own law firms. Meanwhile, Kirkland, the AmLaw 1 firm, announced it would invest $500 million to develop its own proprietary AI system. [ Click here to read a Bloomberg article by Certum’s Will Marra on what Kirkland’s AI announcement means for the future of third-party legal finance.] This can be dizzying for many lawyers. Clients want them to use artificial intelligence. Competitor law firms are using AI. But the risks of misusing AI are high and can even include sanctions and media coverage that gives lie to the old adage that “all news is good news.” A Transformative New Tool To help lawyers navigate this landscape, Certum Group recently hosted a webinar to help lawyers navigate the landscape. Our featured speaker was Michael Showalter , founder of Showalter PLLC, a litigation firm built around AI tools, and a former appellate lawyer at Gibson Dunn and Wiley Rein. The conversation was led by Suneal Bedi , Certum’s Scholar in Residence who is a professor at Indiana University’s Kelley School of Business. This was the first in a series of conversations that Professor Bedi will lead designed to help Certum’s clients navigate the toughest challenges they face today. In the webinar, Showalter demonstrated the power of AI by sharing several moments that “blew his mind” over the past year: A first draft of a law review article that was better than what he’d get from most junior lawyers. T urning a project that once took 100–150 hours into roughly only 15. A flawless table of authorities, table of contents, and cite-check on a brief, produced in about ten minutes. He noted he’d never once received a flawless table of authorities from a human paralegal. Sophisticated legal reasoning; identifying an overlooked antecedent argument in a forthcoming Yale Law Journal article showing the tools do real analysis, not just “automatable” formulaic work. He now estimates he accomplishes in a single day what would have taken him 40 hours of work back in 2022. Three key takeaways emerged from the webinar. To Be a Good Lawyer With AI, First Be a Good Lawyer AI cannot replace legal judgment, but it can amplify it. Lawyers should not outsource the job of lawyers to an AI model. They should treat the models instead like highly capable but error-prone junior associates. This means they should ensure the model has sufficient context about the legal issue they’re asking it to address. And you should give senior-lawyer leadership and oversight to its work. You should also treat AI errors as inevitable, the same way junior lawyers will inevitably make mistakes. Be vigilant to when the model gets something wrong, fix the error, and do what you can to avoid the error from recurring in the future. And you should iterate constantly. AI workflows cannot be completed in a single prompt. Lawyers should consistently redline and comment on the AI’s outputs to refine and perfect the work product. Guard Against Hallucinations and Errors Lawyers are rightly concerned about the prospect that AI may rely on fabricated cases. The webinar offered some candid commentary on this issue: First, the technology has changed dramatically between 2024 and 2026. The incidence of hallucinated and fabricated cases is much rarer today than in the past, partly because the frontier labs have focused on addressing this problem. Second, verification tools now exist. Tools like Veritas now exist to compare every quote in a brief against its primary source, catching errors rather than predicting text. Third, senior oversight remains non-negotiable. Lawyers should not assume an AI will accurately describe a case any more than they should assume a junior associate will do so. Lawyers should read and review every case they cite for accuracy and reliability. Meet Your Clients’ Expectations and the Courts’ Requirements Finally, it is clear that the market is shifting towards the expectation that lawyers will use AI. Even the most sophisticated clients are now demanding that their clients use AI. And they are relying on the existence of AI to push down rates and demand that simpler tasks get outsourced to artificial intelligence. For example, Sebastian Niles, the President and Chief Legal Officer of Salesforce, recently published an article arguing that the integration of AI into law firms should be a baseline expectation. [Harvey AI’s CEO, Winston Weinberg, was recently the keynote speaker at an NYU Law School conference co-organized by Professor Bedi and Certum’s Will Marra. Click here to learn more about the takeaways from that conference.] At the same time, courts have stepped in to closely police how law firms are using AI. Some courts are even amending local rules to regulate the use of AI in legal filings. To be a great lawyer today and tomorrow, lawyers need to stay on the cutting edge of artificial intelligence. Clients demand it, and courts do too. Lawyers should continue to educate themselves about how to best use AI to improve and amplify their work, but not to replace it.
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 .
This is the first post in Certum Group's seven-part series bringing our Trade Secret Litigation Playbook to the blog. It draws on Part I of the Playbook, Why Trade Secret Claims Matter Now. Read or download the full Playbook here . In 2025, federal trade secret filings reached an all-time high — roughly 1,551 new cases in U.S. district courts, up from 1,203 just two years earlier. 1 That is not a blip, and it is not a quirk of the docket. It is the visible edge of a structural shift in how companies create value and how easily that value now walks out the door. Trade secrets used to be the quiet cousin of the intellectual property family — patents got the valuation multiples, trademarks got the brand meetings. That era is over. For a lot of growth-stage companies, the trade secret portfolio can be worth more than the patents, copyrights, and trademarks combined. It rarely shows up on the balance sheet, and it is almost never insured against the risk it actually faces — which is not that someone will design around it, but that someone will take it. So it is worth understanding why the numbers are climbing, because each driver points to a specific exposure that a business owner can do something about. Employees move more, and faster The single largest source of trade secret disputes is not corporate espionage. It is ordinary talent mobility. Roughly 60% of misappropriation cases involve a departing employee, typically heading to a direct competitor. Tenure has shortened, remote work has normalized discreet cross-company job searches, and the volume of departures that touch sensitive information has grown accordingly. The prototypical case a decade ago was a sales rep leaving with a customer list. Today it is a design lead, a data scientist, or a process engineer carrying the company's hardest-won know-how — sometimes in a file, more often in their head. The cost of taking information has collapsed A USB drive, a personal cloud folder, an auto-forwarded email rule, a screenshot script — what once required filing cabinets and a truck now takes a few minutes. The technical friction that used to deter casual misappropriation is largely gone. That has two consequences. It makes the taking easier, and it makes the forensic trail richer: badge records, git commit histories, egress logs, and download timestamps now tell a story that is often more persuasive to a judge than any witness. The evidence exists. The question is whether the claim holder preserves it before it rolls off a ninety-day retention setting. AI has raised the stakes Machine-learning models are trained on data, code, and process knowledge that is frequently proprietary. Competitors racing to ship an equivalent product have a powerful incentive to shortcut the long, expensive path of independent development — and in software, life sciences, financial services, and advanced manufacturing, a six-to-twelve-month head start can be worth hundreds of millions of dollars. When the crown jewels are unpatented know-how, misappropriation is not a nuisance. It is an existential competitive event. Apple's 2026 trade secret suit against OpenAI — built around aggressive hiring from Apple's hardware teams — is only the most visible example of a pattern now playing out across the economy. A single, credible venue Finally, the law itself has changed the calculus. Since 2016, the federal Defend Trade Secrets Act has given claim holders a nationwide cause of action, federal discovery tools, and remedies strong enough to matter — including an extraordinary ex parte seizure procedure. 2 Enforcement is more predictable than it was under a patchwork of state statutes, and predictability attracts plaintiffs. It also attracts capital, which is where a firm like ours enters the picture. What it means for you From the underwriter's chair, the trend line is unambiguous: more valuable secrets, more mobile employees, cheaper theft, and a legal framework that rewards claim holders who move deliberately. The companies that fare worst are the ones that treated their secrecy program as a compliance checkbox and discover, only in a complaint, that it was the strategy all along. The companies that fare best have thought about identification, preservation, and enforcement economics before they ever need them. If your business runs on information other people would love to have, the record filing numbers are not abstract. They are a forecast. Go deeper with the Playbook. This post covers one piece of a much larger picture. For the full framework — what the law requires, what a strong pre-filing case looks like, how damages experts value these matters, how counsel fee structures change your economics, and how litigation finance fits in — read Certum Group's Trade Secret Litigation Playbook , our field guide for business owners and the counsel who advise them: certumgroup.com/the-trade-secret-playbook . And if you are evaluating a live dispute — or simply want to pressure-test what a matter is worth and how it might be funded — get in touch. A confidential conversation with Certum is free and carries no obligation, whether or not you ultimately seek funding. Reach us at certumgroup.com/contact-us . Sources 1. Lex Machina, Trade Secret Litigation Report (2026), reporting an all-time high in federal trade secret case filings in 2025; see also Lex Machina, Trade Secret Litigation Report (2024) (1,203 federal filings in 2023). 2. Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 18 U.S.C. Section 1836 et seq.
Certum’s William Marra was recently quoted in an article by MLex, a LexisNexis publication, on the widening debate over third-party litigation funding disclosure. “Litigation finance is the capital markets come to law,” Marra told the publication, emphasizing that funders are one of the few sources of capital available to an individual or small business facing a far larger opponent. Responding to claims that litigation funding is a vehicle for foreign influence, Marra observed that “there’s just no evidence [of foreign influence] in the third-party funding space,” emphasizing that any real threat should be addressed through regulation covering foreign influence in litigation “in all of its forms.” The article also referenced Marra’s forthcoming New York University Law Review article on the third-party funding disclosure debate, which argues that any court-made disclosure rule should apply evenhandedly to all outside financing, and should not target only one form of third-party finance. “If you want to genuinely have a third-party litigation funding disclosure rule, then disclose all forms of third-party funding. Don’t just disclose the type of non-recourse litigation funding seeking money damages that is disproportionately used by poor individuals and small businesses.” The full article, Patent Litigation Drawn into Broader Third-Party Funding Disclosure Debate, is available here .
On July 10, 2026, the most valuable company in the world accused the most talked-about company in the world of theft. Apple sued OpenAI in the U.S. District Court for the Northern District of California, alleging that OpenAI built its hardware ambitions on a foundation of Apple’s misappropriated trade secrets.¹ Few disputes touch as much of Certum’s Trade Secret Litigation Playbook at once: reasonable measures to guard a secret, identifying with particularity what was taken, and the human-centered points — recruiting and employee departures — where secrets actually walk out the door. Nearly every core theme in Certum Group’s Trade Secret Guide is in this case. And the lesson beneath it is worth sitting with: for the companies with the most to protect, trade secret litigation is not a last resort. It’s a front-line instrument of competitive strategy. Background The dispute sits at the intersection of two of the most closely watched storylines in technology. In 2025, OpenAI acquired io, the hardware venture founded by former Apple design chief Jony Ive and a group of other Apple alumni, for a reported $6.5 billion, and set out to build its first consumer hardware device, widely expected to compete directly with the iPhone.² To staff that effort, OpenAI hired aggressively from Apple. According to the complaint, more than 400 former Apple employees now work at OpenAI.³ Two of those hires anchor Apple’s allegations. Tang Yew Tan spent roughly 24 years at Apple, where he served as a vice president of product design responsible for the iPhone and Apple Watch, before becoming OpenAI’s chief hardware officer. Chang Liu spent about eight years at Apple as a senior systems electrical engineer before departing for OpenAI in 2026.⁴ Apple’s theory is not that a single rogue employee walked out the door with a file. It is that the movement of talent was accompanied by a coordinated effort, one Apple describes as operating “at every level," to extract and exploit the confidential information those employees carried in their heads and on their devices.⁵ The Allegations The complaint reads less like a garden-variety departure dispute and more like a catalog of the exact conduct the Trade Secret Guide warns companies to watch for. Among Apple’s central allegations: Apple claims OpenAI’s hardware leadership directed recruiters to use Apple’s confidential project code names during the hiring process, and instructed job candidates to bring “actual parts” and “CAD/design artifacts” to their interviews.⁶ It alleges that OpenAI circulated internal Apple documents marked “Need to Know” that coached departing employees on how to evade Apple’s exit-security procedures, including the “dreaded walkout,” and to alert OpenAI before signing their exit agreements.⁷ The specifics attributed to individual employees are what give the complaint its texture. Apple alleges that Chang Liu exploited an authentication bug to reach internal network storage after his access should have been cut off, messaging a colleague, “LOL, I found out I can access the [network storage], so funny,” and noting within hours of his departure that he “still ha[d] another computer.”⁸ And Apple alleges that io “exploited and used Apple’s secret, proprietary industrial design techniques,” misleading one of Apple’s own manufacturing partners about whether it was authorized to use a confidential metal-finishing technique.⁹ The trade secrets Apple says are at risk span the full arc of its product-development process: technical specifications for unreleased technologies, engineering presentations and prototype data, component and vendor selection processes, and the proprietary manufacturing techniques that turn a design into a shippable product.¹⁰ Notably, Apple’s opening ask is not a damages windfall. It is protection. Apple seeks to bar OpenAI from using or disclosing the information at issue, to compel the return of its confidential materials, and to preserve the evidence.¹¹ In other words, Apple is using the courthouse to do what its NDAs and exit interviews were supposed to do: keep its edge inside the building. OpenAI’s Response OpenAI has pushed back hard, and its answer is a preview of the fault lines any trade secret plaintiff should expect to fight over. On August 6, 2026, OpenAI moved to dismiss, characterizing the alleged conduct as “benign, lawful conduct” that Apple has mischaracterized, and arguing that its hardware executives simply followed standard industry recruiting practices.¹² As to Chang Liu, OpenAI contends he was “trying to help Apple” by assisting former colleagues who asked him to locate work information, not stealing anything.¹³ More pointed, and more instructive, is OpenAI’s argument that Apple’s own conduct undermines its case. OpenAI asserts that Apple allowed employees to use personal iCloud accounts for work and failed to properly revoke access when they left — noting that an Apple manager remained logged into Chang Liu’s personal iCloud account after his departure in order to transfer files.¹⁴ From that, OpenAI argues that Apple’s offboarding lapses created “confusion and unwanted access issues that Apple now characterizes as theft.” OpenAI also contends that Apple has not identified its trade secrets with adequate specificity, pointing instead to “generic categories of the product-development process.”¹⁵ OpenAI must file its full response by August 17, 2026, with oral argument on the motion set for October 1, 2026.¹⁶ Whatever the merits, OpenAI’s playbook is worth studying precisely because it is so conventional. Reasonable secrecy measures and identification of the trade secret with particularity are two of the elements every misappropriation claim rises or falls on, and they are exactly where a well-resourced defendant will apply pressure first. What This Means It is easy to read a case like this as celebrity litigation between two of the most valuable enterprises on earth. The more useful reading is that trade secret law has become core infrastructure for how modern companies protect competitive advantage. Apple did not respond to a $6.5 billion competitive threat with a press release or a patent portfolio. It responded with a trade secret complaint, because in a business where the crown jewels are unpatented know-how — manufacturing techniques, vendor relationships, unreleased designs — the Defend Trade Secrets Act and its state-law counterparts are the sharpest tools available. The case also throws the Trade Secret Guide’s central lessons into relief. The value of a trade secret program is only as good as the “reasonable measures” behind it; OpenAI’s opening move is to argue that Apple’s own iCloud and offboarding practices were not reasonable at all. The ability to describe what was taken, with specificity, is not a formality. It is frequently the whole ballgame at the pleading stage. And the human element — recruiting, exit procedures, the “dreaded walkout” — is where secrets actually leak, long before anyone reaches a courtroom. Companies that treat these as compliance checkboxes learn the hard way, in a complaint, that they were the strategy all along. For those of us who evaluate disputes for a living, Apple v. OpenAI is also a reminder of why high-stakes trade secret matters are among the most compelling on the plaintiff’s side. The conduct is often concrete and documentable, the competitive stakes are enormous, and, as the Federal Circuit’s recent decision in Versata Software v. Ford underscored, the damages framework can reach the full value of what the misappropriation delivered to the wrongdoer, not merely a discounted license fee. That combination is exactly what makes these cases worth pursuing, and worth backing. Apple’s complaint will be tested, as it should be, and the allegations remain just that — allegations. But the strategic signal is already unmistakable. When the most valuable company in the world wants to defend its future, it reaches for trade secret law. Certum Group’s Trade Secret Guide is built to help plaintiffs and their counsel do the same, whatever their size, and this case is a live illustration of why that playbook matters now more than ever. Certum Group can help. If you are evaluating a trade secret dispute or want to talk through options for funding or de-risking one, get in touch . Footnotes ¹ Complaint, Apple Inc. v. OpenAI, Inc. , No. 5:26-cv-07078 (N.D. Cal. filed July 10, 2026); see Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ² The wildest allegations in Apple's trade secrets lawsuit against OpenAI , TechCrunch (July 13, 2026). ³ Id. ⁴ Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ⁵ Apple sues OpenAI alleging trade secret theft, says scheme was "at every level," CNBC (July 10, 2026). ⁶ The wildest allegations in Apple's trade secrets lawsuit against OpenAI , TechCrunch (July 13, 2026). ⁷ Id. ⁸ Id. ⁹ Id. ¹⁰ Apple sues OpenAI over alleged trade secret theft , TechCrunch (July 10, 2026). ¹¹ Id. ¹² OpenAI Asks Judge to Toss Apple's Trade Secrets Lawsuit , Claims Journal (Aug. 7, 2026). ¹³ Id. ¹⁴ OpenAI says Apple's own security practices undermine its trade secrets case , TechCrunch (Aug. 6, 2026). ¹⁵ Id. ¹⁶ OpenAI Asks Judge to Toss Apple's Trade Secrets Lawsuit , Claims Journal (Aug. 7, 2026).
Certum Group is pleased to announce that Chris Seidl has been named to the 2026 IAM Strategy 300: The World’s Leading IP Strategists list. IAM Strategy 300 is a global ranking of IP strategists who are leaders in developing and implementing strategies to maximize the value of IP portfolios. IAM identifies individuals through extensive research annually. Chris leads Certum’s IP finance strategy, including IP licensing, litigation funding, and acquisitions. This is the fifth consecutive year Chris has been included on the IAM Strategy 300 list. Click here to see the complete rankings.
Artificial intelligence is quickly changing how legal work is researched, drafted, reviewed, and delivered. But while AI can improve efficiency, it also creates serious risks, including inaccurate analysis, fabricated citations, and potential court sanctions. In this webinar, Certum Group brings together legal and business experts to discuss how lawyers can use AI to strengthen their work without compromising accuracy, professional judgment, or accountability.
Artificial intelligence is transforming all corners of the economy, and the legal profession is no different. At first it seemed the stories about AI and the law were all negative, as many lawyers , even those at some of the most prestigious firms , found themselves sanctioned for filing briefs with hallucinated cases. More recently, the news cycle has turned, as existing law firms embrace AI and new firms sprout to deliver AI-first legal services. Just recently, top lawyers from Kirkland & Ellis and Quinn Emanuel each left to launch their own law firms. Meanwhile, Kirkland, the AmLaw 1 firm, announced it would invest $500 million to develop its own proprietary AI system. [ Click here to read a Bloomberg article by Certum’s Will Marra on what Kirkland’s AI announcement means for the future of third-party legal finance.] This can be dizzying for many lawyers. Clients want them to use artificial intelligence. Competitor law firms are using AI. But the risks of misusing AI are high and can even include sanctions and media coverage that gives lie to the old adage that “all news is good news.” A Transformative New Tool To help lawyers navigate this landscape, Certum Group recently hosted a webinar to help lawyers navigate the landscape. Our featured speaker was Michael Showalter , founder of Showalter PLLC, a litigation firm built around AI tools, and a former appellate lawyer at Gibson Dunn and Wiley Rein. The conversation was led by Suneal Bedi , Certum’s Scholar in Residence who is a professor at Indiana University’s Kelley School of Business. This was the first in a series of conversations that Professor Bedi will lead designed to help Certum’s clients navigate the toughest challenges they face today. In the webinar, Showalter demonstrated the power of AI by sharing several moments that “blew his mind” over the past year: A first draft of a law review article that was better than what he’d get from most junior lawyers. T urning a project that once took 100–150 hours into roughly only 15. A flawless table of authorities, table of contents, and cite-check on a brief, produced in about ten minutes. He noted he’d never once received a flawless table of authorities from a human paralegal. Sophisticated legal reasoning; identifying an overlooked antecedent argument in a forthcoming Yale Law Journal article showing the tools do real analysis, not just “automatable” formulaic work. He now estimates he accomplishes in a single day what would have taken him 40 hours of work back in 2022. Three key takeaways emerged from the webinar. To Be a Good Lawyer With AI, First Be a Good Lawyer AI cannot replace legal judgment, but it can amplify it. Lawyers should not outsource the job of lawyers to an AI model. They should treat the models instead like highly capable but error-prone junior associates. This means they should ensure the model has sufficient context about the legal issue they’re asking it to address. And you should give senior-lawyer leadership and oversight to its work. You should also treat AI errors as inevitable, the same way junior lawyers will inevitably make mistakes. Be vigilant to when the model gets something wrong, fix the error, and do what you can to avoid the error from recurring in the future. And you should iterate constantly. AI workflows cannot be completed in a single prompt. Lawyers should consistently redline and comment on the AI’s outputs to refine and perfect the work product. Guard Against Hallucinations and Errors Lawyers are rightly concerned about the prospect that AI may rely on fabricated cases. The webinar offered some candid commentary on this issue: First, the technology has changed dramatically between 2024 and 2026. The incidence of hallucinated and fabricated cases is much rarer today than in the past, partly because the frontier labs have focused on addressing this problem. Second, verification tools now exist. Tools like Veritas now exist to compare every quote in a brief against its primary source, catching errors rather than predicting text. Third, senior oversight remains non-negotiable. Lawyers should not assume an AI will accurately describe a case any more than they should assume a junior associate will do so. Lawyers should read and review every case they cite for accuracy and reliability. Meet Your Clients’ Expectations and the Courts’ Requirements Finally, it is clear that the market is shifting towards the expectation that lawyers will use AI. Even the most sophisticated clients are now demanding that their clients use AI. And they are relying on the existence of AI to push down rates and demand that simpler tasks get outsourced to artificial intelligence. For example, Sebastian Niles, the President and Chief Legal Officer of Salesforce, recently published an article arguing that the integration of AI into law firms should be a baseline expectation. [Harvey AI’s CEO, Winston Weinberg, was recently the keynote speaker at an NYU Law School conference co-organized by Professor Bedi and Certum’s Will Marra. Click here to learn more about the takeaways from that conference.] At the same time, courts have stepped in to closely police how law firms are using AI. Some courts are even amending local rules to regulate the use of AI in legal filings. To be a great lawyer today and tomorrow, lawyers need to stay on the cutting edge of artificial intelligence. Clients demand it, and courts do too. Lawyers should continue to educate themselves about how to best use AI to improve and amplify their work, but not to replace it.
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 .
