U.S. Sentencing Guidelines Manual

Valuation (U.S. Sentencing Guidelines Manual §2B1.1(b) (2008))

Because the loss table in section 2B1.1(b) will have a significant impact on the guideline calculation in a case of trade secret theft, developing an accurate and defensible measure of the actual or reasonably foreseeable pecuniary loss to the trade secret owner from the defendant’s conduct is a critical step in the development of a sentencing strategy. For definitions of “actual loss” and “intended loss,” refer to U.S. Sentencing Guidelines Manual § 2B1.1(2008), Application Notes 3(A)(i),(ii).

Identifying a pecuniary loss figure for sentencing purposes may be complicated. In some instances
a victim company will put a very high - and possibly unrealistic - value on its trade secrets. This may be based in part on a misunderstanding of how valuation operates under the Sentencing Guidelines.
Conversely, a defendant may argue that, due to the circumstances of the particular case, the actual loss was small or nonexistent.
The goal of the prosecutor is often to find the balance point between the two extremes and to provide the sentencing judge with a meaningful basis to make findings as to the value. To do so, the prosecution team needs to develop a theory, or theories, of valuation and determine a method of proof to support the theory.
Since the Sentencing Guidelines section 2B1.1(b) loss table applies valuations ranges, precise determination of the valuation of the misappropriated trade secret is not necessary. In fact, the guidelines recognize that "[t]he court need only make a reasonable estimate of the loss." U.S. Sentencing Guidelines Manual § 2B1.1 (2008), Application Note 3(C).
The process of establishing a reasonable loss figure has resulted in hotly contested hearings requiring testimony at the sentencing phase of several trade secret cases. One case, involving the theft of proprietary software used in making drivers’ licenses, provides a good overview of the issues that the prosecution and court face at sentencing. United States v. Ameri, 412 F.3d 893 (8th Cir. 2005). The district court heard evidence of loss, including estimates of the value of the software, at the trial. Following the initial sentencing hearing, the district court was not comfortable with its understanding of the amount of loss. The district court then held second and third sentencing hearings to fully explore the issue. Following the hearings, the district court made detailed findings on loss which provide an overview of the issues that can arise at sentencing. The court eventually determined that:

The development cost for the software was about $700,000.

1. The software was not generally available for sale without an installation contract, so there was not a verifiable "fair market value."
2. The stolen software was at the heart of the victim contractor’s $10 million contract.
3. The contractor’s software, rather than the contractor’s other services, comprised the bulk of the value for its clients.
4. The defendant offered another person $200,000 to participate in fraudulent use of the software.
5. An employee of the contractor estimated the fair market value for a copy of the software to be about $1 million.
6. The defendant possessed two discs containing stolen copies of the software.
7. The contractor spent between 300 and 500 man hours over the course of 2 years dealing with the fallout from the software theft.
8. The software remained in service in many states and the contractor did not have to "repair" the software.

It is rare that this range of evidence relating to valuation will be available at sentencing, but the findings of the court suggest some of the possible means of assigning a value to the trade secret (and, perhaps, to avoid three sentencing hearings). Some possible methods for assessing the value of a trade secret are outlined below.
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