O.C.G.A.
O.C.G.A.

O.C.G.A. § 10-1-763 (2019)

Recovery of damages

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) In addition to or in lieu of the relief provided by Code Section 10-1-762, a person is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. If neither damages nor unjust enrichment caused by the misappropriation are proved by a preponderance of the evidence, the court may award damages caused by misappropriation measured in terms of a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret for no longer than the period of time for which use could have been prohibited. (b) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a) of this Code section. (c) In no event shall a contract be required in order to maintain an action or to recover damages for misappropriation of a trade secret.

History

Code 1981, § 10-1-763, enacted by Ga. L. 1990, p. 1560, § 1.

SELLING/OTHER TRADE PRACTICES

Annotations

JUDICIAL DECISIONS Claim against state university board. - Public relations firm’s claim against a state university board for misappropriation under the Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., was barred by sovereign immunity; however, because a violation of the Act constituted a tort and the state waived sovereign immunity for torts, the firm could bring suit pursuant to the Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Bd. of Regents of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 830 S.E.2d 503, 2019 Ga. App. LEXIS 409 (2019), cert. denied, No. S19C1521, 2020 Ga. LEXIS 118 (Ga. Feb. 10, 2020). Summary judgment denied. - Summary judgment was unwarranted on the misappropriation of trade secrets and unfair trade practices claims under Georgia statutory and common law because defendant software developer failed to timely provide plaintiff software developer with discoverable information about the PA system and, therefore, the court could not say that genuine issues of material fact did not exist. TDS Healthcare Sys. Corp. v. Humana Hosp. Ill., Inc., 880 F. Supp. 1572, 1995 U.S. Dist. LEXIS 4138 (N.D. Ga. 1995).

Despite a corporation incorporator’s testimony that there was “probably nothing” the corporation had which derived its competitive value from not being generally known and not being readily ascertainable by proper means, sufficient evidence was presented from which a jury could find that the computer software the corporation’s president developed for the corporation satisfied the definition of a trade secret under the Georgia Trade Secrets Act of 1990, O.C.G.A. § 10-1-760 et seq., to withstand a motion for summary judgment. Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 633 S.E.2d 373, 2006 Ga. App. LEXIS 738 (2006), cert. denied, No. S06C1871, 2006 Ga. LEXIS 807 (Ga. Oct. 2, 2006). Pleading. - There is no requirement in O.C.G.A. § 10-1-763 that punitive damages be specifically asked for in the complaint, and exemplary damages may be awarded in the absence of such a request, if the evidence shows that willful and malicious misappropriation existed. Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga. App. 40, 555 S.E.2d 508, 2001 Ga. App. LEXIS 1190 (2001).

RESEARCH REFERENCES ALR. Applicability of inevitable disclosure doctrine barring employment of

competitor’s former A.L.R.6th 537.

employee,

Notes of Decisions
Cited in 12 cases (1 in the last 5 years), 1994–2021 · leading case: One Sixty Over Ninety, LLC v. Bd. of Regents of the Univ. Sys. of Georgia, 830 S.E.2d 503 (Ga. Ct. App. 2019).
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One Sixty Over Ninety, LLC v. Bd. of Regents of the Univ. Sys. of Georgia, 830 S.E.2d 503 (Ga. Ct. App. 2019). · cites it 4× “OCGA § 10-1-763 (a). A "trade secret" means "information, without regard to form .”
Diamond Power Int'l, Inc. v. Davidson, 540 F. Supp. 2d 1322 (N.D. Ga. 2007). · cites it 2× “) Bergemann and Davidson move for summary judgment on Diamond Power’s trade secret claims, contending that (1) some of the above information does not comprise a trade secret; (2) and, in any event, none of the above information was “misappropriated” by Davidson and/or Bergemann.”
Brandenburg v. All-Fleet Refinishing, Inc., 555 S.E.2d 508 (Ga. Ct. App. 2001). · cites it 2× “As to this latter claim, we note that the court awarded exemplary damages under OCGA § 10-1-763 (b). This section provides that under the Georgia Trade Secrets Act, a court may award exemplary damages if it finds that wilful and malicious misappropriation exists.”
Stargate Software Int'l, Inc. v. Rumph, 482 S.E.2d 498 (Ga. Ct. App. 1997). · cites it 2× “OCGA § 10-1-763 (a). The term “trade secret” can apply to data or a program, OCGA § 10-1-761 (4), both of which Stargate claims were its trade secrets.”
Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 432 F. Supp. 2d 1319 (S.D. Fla. 2006). “§ 10-1-762, or an action for damages under O.C.G.A. § 10-1-763.”) 31 . AlphaMed was required to state a claim for either injunctive relief or damages in order to assert standing to bring its misappropriation claim under Article III of the United States Constitution.”
White v. Arthur Enter., Inc., 464 S.E.2d 225 (Ga. Ct. App. 1995). · cites it 2× “The claim of White and White’s Pharmacy that no evidence supports the amount of damages awarded by the jury is without merit.”
Equifax Servs., Inc. v. Examination Mgmt. Servs., Inc., 453 S.E.2d 488 (Ga. Ct. App. 1994). · cites it 2× “” See OCGA § 10-1-763 (c); Thomas v. Best Mfg. Corp.”
Atlanta Fiberglass USA, LLC v. KPI, Co., 911 F. Supp. 2d 1247 (N.D. Ga. 2012). · cites it 2× “§ 10-1-762 (providing for injunctive relief); O.C.G.A. § 10-1-763 (providing for damages).”
Tidwell v. Wedgestone Fin. (In Re Hercules Auto. Prods., Inc.), 245 B.R. 903 (Bankr. M.D. Ga. 1999). · cites it 2× “Thus, Trustee’s only remedy for the alleged misappropriation of Debt- or’s customer base would either be a suit in equity for injunctive relief under O.”
HCC Ins. Holdings, Inc. v. Flowers, 237 F. Supp. 3d 1341 (N.D. Ga. 2017). · cites it 2× “2007) (citing O.C.G.A. § 10-1-763; Capital Asset Research Corp.”
Triest Irrigation LLC Fka United Irrigation Supply LLC v. Hiers (M.D. Ga. 2021). · cites it 2× “See O.C.G.A. § 10-1-763(a); 18 U.S.C. § 1836 (b)(3)(B).”
Camp Creek Hosp. v. Sheraton (11th Cir. 1997). “See O.C.G.A. § 10-1-763(a). Moreover, the district court may determine that injunctive relief is appropriate to the extent that the Gateway continues to make use of Camp Creek's confidential information to compete for guests.”
— 10-1-763(a) — 2 cases
Triest Irrigation LLC Fka United Irrigation Supply LLC v. Hiers (M.D. Ga. 2021). “See O.C.G.A. § 10-1-763(a); 18 U.S.C. § 1836 (b)(3)(B).”
Camp Creek Hosp. v. Sheraton (11th Cir. 1997). “See O.C.G.A. § 10-1-763(a). Moreover, the district court may determine that injunctive relief is appropriate to the extent that the Gateway continues to make use of Camp Creek's confidential information to compete for guests.”
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