### REVI SED January 15, 2014

I N THE UNI TED STATES COURT OF APPEALS

FOR THE FI F TH CI RCUI T

No. 11-20816

WELLOGIX, INC., Plaintiff-Appellee,
v. ACCENTURE, L.L.P., Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas

Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: Plaintiff-Appellee Wellogix, Inc. a lleged that Defendant-Appellant Accenture, L.L.P, misappropriated its t r ade secrets. After a n i n e - day trial, a jury r eturned a u na n i m o us verdict against Accenture, awarding Wellogix compensatory and punitive damages. After a c a r e f ul r eview o f the record, we find tha t there was s ufficient evidence to support the jury’s verdict, and the resulting damages awards. See Lavender v. Kurn , 327 U.S. 645, 653 (1946) (“Only w hen there is a complete absence of pro b a tive f acts to s upport the conclusion reached does a reversible error appear.”). Had we s at i n th e jury box, U n i t e d S t a t e s C o u rt o f A p p e a ls

F ift h C ir c u i t 

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we may have decided otherwise. “But juries are n ot b ound by what seems i n escapable logic to judges.” Morissette v . United States , 342 U.S. 246, 276 (1952). Guided by this deference, we AFFIRM. I. Facts and Proceedings The oil and gas i ndustry spends “billions o f d ollars” each year to construct oil w ells. Yet, traditionally, o i l companies planned such projects over “coffee and doughnuts,” using paper records to track and pay costs. And, to the extent that they employed computer software, they relied o n “basic tools” such as Excel. Due, i n part, to this “paper process,” oil companies s truggled to estimate certain well construct i o n c osts—known as “complex services.” E ven modest improvements in how companies estimated such costs could s ave “[h]undreds of millions of dollars.” Wellogix, Inc.—motto: “[m]aking the complex simple”—sought to modernize this process. Wellogix developed software that allowed oil companies to “plan, p rocure, and pay for c omplex s e r v i c es”—all online. T h e software featured: “dynamic templates” that adjusted cost and supply estimates based on “intelligence built into” the underlying s ource code; 1 a “workflow navigator” that provided a framework for planning and procuring services; and “electronic field tickets” that allowed suppliers to record information about orders. Wellogix was, according to its CEO, t h e only company offering complex services software from 2000 t o 2 0 0 5

. However, W ellogix’s s oftware was not a stand-alo n e s o lution. Wellogix instead relied on other companies’ software to perform core accounting functions. To fill this technology gap , W e l l o g ix entered i nto an agreement in 2005 with the software company SAP. The a greement allowed Wellogix to i ntegrate

1 Source cod e is the set of ins tructions that com p uter p rogram m ers w rite in s pecialized com p uter language to caus e a s of tw are p rogram to function.

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its complex servi c e s software with SAP’s a ccounting software. As part of the agreement, Wellogix provided its source code to SAP. To promote its software, Wellogix entered into six marketing agreements with the c o nsulting firm Accenture, L.L.P. Wellogix also participated in pilot
p rojects with oil companies. Wellogix s hared source code and access to its technology with both Accenture and the oil companies, subject to confidentiality agreements. Some of the p ilot projects involved Accenture. For example, Wellogix and Accenture worked t ogether in 2000 on an “eServices” pilot that p rovided BP America, Inc. (“BP”) with access to the “dy n a m ic template” and “workflow navig a t o r” f

e a tures. Others did not. For example, Wellogix worked with a different consultant on a 2004 “eTrans” pilot for BP. As part of “eTrans,” BP implemented Wellogix software at two well sites. BP also hosted a confidential online portal that allowed Wellogix to share files and i n f ormation with B P employees. Although a BP manager considered the pilot a success, BP discontinued the project in 2005 “due to cost and internal integration issues.” After “eTrans,” BP sought t o implement global software th at “was not just for complex services, but was for [its] entire

. . . s ystem.” T o that e nd, BP sponsored a new pilot, known as “Purchase-to-Pay,” or “P2P.” BP instructed Accenture to select a software provider. SAP and Wellogix pitched their integrated software to Accenture in May 2005. As part of the pitch, Wellogix described the software’s dynamic templates. Without notifying Wellogix, Accent u r e a nd SAP began d eveloping the complex services component of the global s o f t w a r e for BP. 2 As they developed

2 Accenture and SAP w ork ed together in 2004 to develop an ap p lication w ith a com p lex
s ervices com p onent, k now n as “xIEP. ” Accenture and SAP intend ed to integrate W e l l o g i x ’ s s of tw are into xIEP, but end ed the p roject bef ore d evelop ing the com p lex s ervices f eature. 3 Case: 11-20816 Document: 00512502053 Page: 3 Date Filed: 01/15/2014No. 11-20816

the component, Accenture and S A P a p parently a ccessed Wellogix technology

—i n c l u d ing flow diagrams, design specifications, and source code critical t o Wellogix’s software—that had been uploaded to the confidential eTrans portal. Wellogix sued BP, Accenture and SAP in district court in 200 8 , a l l e ging that they had stolen and m isappropriated Wellogix trade secrets. District Judge Keith Ellison dismissed SAP from the lawsuit for lack of venue. Wellogix and BP agreed to a rbitrate. Judge Ellison, acting as the arbitrator, found that W e llogix’s source code was a trade secret, b ut that BP did not u se the code. H o w e v e r , Judge E llison found that BP b reached its

c o n f identiality agreement with Wellogix by making Wellogix’s confidential information accessible to Accenture and SAP. Wellogix’s suit against Accenture proceeded to trial. The jury returned a verdict for Wellogix, awarding $26.2 million in c ompensatory d a m a g e s a n d $68.2 million in punitive damages. Accenture r e n e w e d its motion for judgment as a matter o f law, and also filed a motion for a new trial. Judge Ellison denied both motions except to suggest a remittitur of the punitive damages award to $18.2 million—the amount Wellogix sought at trial. Wellogix accepted the remittitur, and the district court entered final judgment. Accenture appeals. II. Accenture’s Motion for Judgment as a Matter of Law “Although w e review denial of a motion f or judgment as a matter of law de

novo . . . ‘our standard of r eview with respect to a jury verdi c t i s e s p e cially deferential.’” SMI Owen S teel Co. v. M arsh USA, I

nc , 520 F .3d 432, 437 (5th Cir. 2008) (quoting F

lowers v. S

. Reg’l Physician Servs., Inc. , 247 F .3d 229, 2 35 (5th Cir. 2001)). In reviewing the record, “we draw all reasonable inferences in favor of the nonmoving party, and

. . . may n ot make c r edibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000); see B rown v. Bryan Cnty. , 219 F.3d 450, 456 (5th Cir. 2000). This is because “[c]redibility d eterminations, the weighing o f the evidence, and the

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drawing of legitimate inferences from the f acts are jury functions, not those of

a judge.” Id

. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Accordingly, we do not find that the district court erred u nless “the evidence at trial points s o st r o n g l y and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.” Omnitech Int’l, Inc. v. Clorox Co. , 11 F.3d 1316, 1323 (5th Cir. 1994). 1. Misappropriation

“T r a d e s e c r e t m i s a p p r o p ri ati on under Texas law is establi s h e d b y s h o w i n g : (a) a trade secret existed; (b) the trade secret was acquired through a breach of

a confidential relationship or discovered by improper means; and (c) use of the trade s ecret without authorization from the p laintiff.” 3 Phillips v. Frey , 20 F.3d 623, 627 (5th C ir. 1 994); see a lso Taco Cabana Int’l, Inc. v. Two Pesos, Inc. , 932 F.2d 1 113, 1123 (5th Cir. 1 991), aff'd sub nom. Two Pesos, Inc. v. Taco C abana, Inc. , 505 U.S. 763 (1992). a) Existence of Trade Secret “‘The existence of a t r ade secret i s pro p erly considered a question of fact to be d ecided by the judge or jury as f act-finder.’” G en. Universal Sys., Inc. v. Lee , 379 F. 3 d 1 3 1, 150 (5th Cir. 2004) (quoting R E S TA T E M E N T (T H I R D ) U N FA I R C O M P E T I T I O N § 39 c mt. (1995)). A trade secret “is any f ormula, pattern, device,

or compilation of information used in one’s busi n e ss, and which gives an opportunity to obtain an advantage o ver competitors who do not know or use it.” Taco Cabana , 932 F.2d at 1123; see Hyde Corp. v. Huffines , 3 14 S.W.2d 763, 776 (Tex. 1958). To determine whether a trade secret e xists, we c o nsider six factors, weighed “in the context of the surrounding circumstances”: (1) the extent t o w h i ch the information is known o u t s i d e of his business; ( 2) the extent to w h i ch it is k nown by employees and others involved in his business; (3) the extent of the measures taken

3 The p arties d o not d is p ute that Texas law ap p lies

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by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; ( 6 ) th e e a s e o r difficulty with which the information could be prope r l y acquired or duplicated by others In re Bass , 113 S .W.3d 735, 739-40 (Tex. 2003) ( quoting R E S TA T E M E N T O F T O R T S § 757 cmt. B. (1939)); see Triple Tee Golf, I n c . v . N i k e , Inc. , 485 F.3d 253, 267 (5th Cir. 2007). Here, Wellogix presented sufficient evidence and testimony to support the jury’s finding that Wellogix’s technology contained trade secrets. Wellogix show e d that, because it was the only c o mpany offering complex services software from 2000 to 2005, its software—and, in particular, the underlying p roprietary

source code—gave it “ an opportunity to obtain an advantage over competitors.” Taco Cabana , 932 F.2d at 1123. Wellogix also showed that the six Bass factors weigh in its favor. For example, Wellogix introduced evidence that i t “guard[ed] t h e secrecy of” its technology, see Bass , 113 S.W.3d at 739, by placing its software behind a f

irewall, and sharing it subject to c onfidentiality a greements. Wellogix also introduced e vidence that its technology had “value,” see Bass , 113 S.W.3d, because other companies p artnered w i t h Wellogix, and, as discussed below, third-party investors valued Wellogix at more than $27 million. Accenture argues that Wellogix’s technology was not “ secret” because Wellogix disclosed it t o the public in patents and patent applications. H owever,

as the district court instructed the jury, a patent destroys the secrecy necessary to maintain a trade s ecret o n ly when the p atent and the trade secret “both cover the same subject matter.” Luccous v. J. C. Kinley Co. , 376 S.W.2d 336, 340 (Tex. 1964); s ee C

arbo Ceramics, Inc. v. Keefe , 166 F. App’x. 714, 719-20 (5th C ir. 2006) (upholding the jury’s verd i c t o n the basis that the jury “could have concludedand a pparently did c onclude-that the [plaintiff’s] patents did n o t r e v eal [its] trade secrets”). Neither party in this c ase i ntroduced Wellogix’s patents into

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e v i d ence. In f

act, Wellogix argued against introducing p atent-rel a t e d documents, fearing prejudice

. Al t h ough Accenture maintains that it was Wellogix’s burden to show that the p a t e n t s did not cover the same subject matter, Accenture does not cite, nor we could we find, case law i m posing such a burden. Further, another circuit, in an unpublished o pinion, held that it is for the d e fendant, once a plaintiff makes a prima facie case for the existence of a trade secret, to show that disclosure destroys the s ecret. See Injection Research Specialists, Inc. v. P

ol a r i s, L.P. , Nos. 97-1516, 97-1545 & 97-1557, 1998 WL 536585, at *8-9 (Fed. Cir. Aug. 13, 1998). Accenture argues that, even if Wellogix’s patents did not disclose the trade secrets, t h ere was insufficient evidence that Wellogix even possessed such secrets. Accenture contends, for example, that t echnical information related to the e Trans pilot w a s not a trade secret because Wellogix published a document containing the i nformation on its public website. Accenture adds that, without entering into confidentiality agreements, Wellogix provided othe r c o mpanies with documents c ontaining “process flow” maps of the eTrans p roject. H owever, Wellogix software expert Kendyl Roman testified that, while some trade secrets appeared o n Wellogix’s website, others did not. I n addition, the district court instructed that the jury c ould not find that there w as a t rade secret o n the basis of the “process flow” maps. “A j u r y i s presumed t o f ollow its i nstructions[,]” Weeks v. Angelone , 5 28 U .S

. 2 2 5 , 234 (2000), and Accenture h as not overcome this presumption. b) Acquisition of Trade Secret “One i s liable for disclosure of trade secrets if (a) he discovers the secret by improper means, or (b) his disclosure o r u se constitutes a breach of confidence reposed i n one w h o i s in a confidential relationship with another w ho discloses protected i nformation to him.” Phillips v. Frey , 20 F.3d 623, 630 ( 5th C ir. 1994);

see Huffines , 314 S.W.2d at 769. “Improper means of acquiring another’s trade

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secrets include theft, fraud, unauthorized i nterception of communica t i o ns, inducement of or k n o w i n g participation i n a breach of c onfidence, and other

means either wrongful i n themselves or wrongful under the circumstances of the case.” Astoria Indus. of I owa, Inc. v . SNF, Inc. , 223 S.W. 3d 616, 636 (Tex. App. 2007) (citing R E S TA T E M E N T (T H I R D ) O F U N FA I R C O M P E T I T I O N§ 43 (1995)). Here, Wellogix presented sufficient evidence and testimony to support the jury’s findin g that Accenture improperly a cquired Wellogix’s trade secrets. Wellogix showed: that i t e ntered into six c o nfidential agreements with Accenture; that, through the marketing agreements, Accenture ha d a c c e s s to Wellogix trade secrets; that Accenture also had access to W ellogix trade secrets uploaded to the confidential eTrans portal; and that an Accenture e m ail referenced “harv e s ti n g I P” f ro m W e ll o gix. Together, this evidence and t estimony supports the “legitimate i nference[,]” Reeves , 530 U

. S. at 150 , t h at Accenture acquired Wellogix’s trade secrets. Accenture argues that there was no evidence, other than expert Roman’s testimony, that Wello gix’s t rade secrets were o n the eTrans portal. Accenture maintains that R oman’s t estimony w a s n o t p r obative because Roman did not h a v e p e rsonal k nowledge that c ertain trade secrets were on the portal. How e v e r , as a n expert, Roman did not n e ed “firsthand k nowledge or obs e r v a t i on.” Daubert v. Merrell Dow P harms. , Inc. , 509 U.S. 579, 592 (1993). Indeed, Roman conceded that he lacked such knowledge. Instead, Roman testified that, in his experience in the software i n d u s t ry, he believed it likely that c ompanies w orking t ogether on a pilot pr oj e c t w ould share documents containing trade s ecrets on an online portal. He added that h e based this belief, in part, on a BP contractor’s d eposition t estimony that information resembling Wellogix’s tr a d e s ecrets was on the eTrans p ortal. Given that “an e xpert is permitted wide latitude to offer opinions,” Daubert , 509 U.S. at 592, and that, as

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discussed below, Roman’s testimony was sufficiently “reliab l e ” a nd “relevant,” the jury was reasonable in crediting his testimony. Accenture also argue s t hat Wellogix CEO Ike Epley’s “vague and unsupported” testimony does not show that Accenture acquired Wellogix’s trade secrets. Accenture maintains that Epley’s testimony that one of Wellogix’s pilot partners, Trade Ranger, “had access” t o Wellogix source code d oes not “support the i n f e r ential leap” that Accenture had s uch access. Accenture adds that it could not access Wellogix’s source code because, as CEO Epley testified, the code

was b ehind a firewall. However, Accenture’s i nvolvement in the Trade Ranger pilot—Accenture “was the consultant and the implementer [ o f software] for Trade R anger”—supports the inference that Accenture could have accessed Wellogix source code through the p il o t

. Further, Epley’s testimony that Wellogix kept its source code behind a firewall for the eTrans project does not preclude a jury from finding that Accenture otherwise had a ccess to the code. For e xample,

a jury c ould have inferred that Accenture gained such a ccess by entering into six confidentiality agreements with W e l l o g ix. Although Accenture n otes that Wellogix corporate representative John Chisholm testified that Wellogix never gave Accenture access to its source code, we decline to assume “jury functions” by weighing Chisholm’s credibility against Epley’s. See Reeves, 530 U.S. at 150. c) Use of Trade Secret As a general matter, a n y e xploitation of the trade secret that is likely to result in injury to the trade s ecret o wner or enrichment to the defendant is a “use[.]”

. . . Thus, m arketing goods that embody the trade secret, employing the trade secre t i n m anufacturing or production, r e l ying on the trade secret to assist or accelerate research or development, or soliciting customers through the u se of information that is a trade secret . . . all constitute “use.” HAL , 500 F.3d a t 451 ( quoting R E S TA T E M E N T (T H I R D ) O F U N FA I R C O M P E T I T I O N § 40 (1995)). “Use” can i n c l u d e “activities other than the actual selling of the
p roduct.” D resser-Rand Co. v. Virtual Automatic, Inc. , 361 F.3d 831, 8 4 0 ( 5 t h

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Cir. 2004); see ForScan Corp. v. Dresser Indus., Inc. , 789 S.W.2d 389, 3 95 (Tex. App. 1990) (finding that a ttempts to market a product c onstituted “use”). Indeed, an act that “lower[s] the ma r k e t value” o f a trade secret by “making it less likely that [ t he plaintiff] would sell his invention to [the defendant’s] competitors” could amount t o “use.” Bohnsack v. Varco, L.P. , 668 F

. 3d 262, 280 (5th Cir. 2010). Here, Wellogix presented sufficient evidence and t estimony to support the jury ’ s f i nding that Accenture used its trade secrets. Wellogix showed: that Accenture joined with SAP to develop a complex servic e s c o m ponent for B P’s P2P pilot; that, around the t ime that Accenture and SAP partnered, they were able to access Wellogix’s dynamic templates source code that had been uploaded to the con f i d ential eTrans portal; that an Accenture document referenced the “creation of

. . . complex s ervice templates,” and then “right below” stated: “Use Wellogix content”; that the same document provided that the templates “better deliver similar or better functionality than W ellogix or we may h ave a problem”; that other Accenture documents r e f e r e nced Wellogix’s templates, and that, as the pilot progressed, a B P employee told Wellogix that the company s hould: “sue Accenture

. . . [b]ecause Accenture was utilizing [Wellogix’s] confidential information and building out [its] functionality.” T o g e t h e r , this evidence and testimony supports the “legitimate inference[,]” Reeves , 530 U.S. at 150, t hat Accenture used Wellogix’s trade secrets. Accenture a cknowledges that it developed c omplex services templates for the P2P pilot, but a r gues that its templates lacked “dynamic” features, and therefore were “nothing like Wellogix’s.” Ac c enture notes that Wellogix CEO Epley r ecognized that “Wellogix doesn ’ t o w n th e c o n c e p t of templates.” H owever, the standard f

or finding “use” is not w h e ther Accenture’s templates c o ntained Wellogix trade secrets, but whether Accenture “rel[ied] on the trade secret[s] to assist or accelerate research o r development” o f its templates. HAL , 500 F.3d at

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451 (quoting R E S TA T E M E N T (T H I R D ) O F U N FA I R C O M P E T I T I O N § 40). A jury could “legitimate[ly] infer[,]” Reeves , 530 U.S. at 150, on the basis o f, for e xample, the Accenture email s u g g esting that the company should “[u]se Wellogix for

c o ntent,” that Accenture “rel[ied]” on Wellogix’s templates to d ev e l o p it s o w n . Se e HAL , 500 F.3d at 451. Accenture argues that Roman’s testim o ny about the meaning of certain terms in Accenture documents, su c h a s “ development,” w as “pure conjecture, which cannot sustain the judgment.” However, as an expert with experience in the software industry, Roman had the requisite “exper i e n c e , training, or education” to t estify as to the software industry’s understanding of such terms. Wilson v. Woods , 163 F.3d 935, 937 ( 5th Cir. 1 999) (quoting F E D

. R. E V I D

. 702);

see U n ited States v. Tucker , 345 F.3d 3 20, 327- 2 8 ( 5 t h C i r. 2003) (finding that the di strict court’s exclusion o f an expert’s p roposed t e stimony on the technical meaning of the term “invest” was “im p r o p e r” because the testimony was “relevant to the issue of the definition o f ‘in v e s t’”). Further, e ven without Roman’s testimony, a jury could “legitimate[ly] infer[,]” Reeves , 530 U.S. at 150, b ased on the plain language of the documents—for example, Accenture’ s reference to “us[ing] Wellogix for c ontent”—that Ac c e nt u r e u s e d We llogix’s trade secrets. Relying o n Wilmington Star Mining Co. v . Fulton , 205 U.S. 60, 78-79 (1907), and Rutherford v. Harris Cnty. , 197 F .3d 173, 185 (5th C ir. 1999), Accenture a rgues for the first time on appeal that, “b ec a use the evidence
sup p o rti n g [W e ll o gix’ s x I E P] th e o ry was insufficient, and because it is impossible t o k n o w whether the jury i mproperly relied on it in finding misappropriati o n , Accenture is at least entitled to a new trial.” Accenture does not direct us to any request to the district cou r t f or a special verdict, F E D

. R

. C I V

. P. 49(a), nor to a request for answers to questions, F E D

. R

. C I V

. P. 49(b), nor to any pertinent objection to the jury submission and charge, F E D

. R. C I V

. P. 51, nor, later, to any

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request for verdict clarification, nor, finally, t o any such contention of inherent ambi g u i ty in the general verdict in their new trial motion. In such circumstances, w i t h no objection made a s to form or s ubstance, we have explained that a r equest for retrial has n o t been preserved. See Pan E. Exploration Co. v. Hufo O i ls , 855 F.2d 1106, 1 123-25 (5th Cir. 1988) (forfeiture from arguing o nly that none of the possible theories of recovery were supported by the e vidence, not that the cause should be reversed and remanded if any one of the theories was i nvalid); In re A.V. , 113 S .W.3d 355, 3 63 (Tex. 2003); McCord v. Maguire , 873 F.2d 1271, 1274 (9th Cir. 1989). 4 Because Wellogix showed that Accenture u sed its trade secrets for the P2P pilot, we decline to address whether Wellogix showed that Accenture also used Wellogix’s trade secrets for the x IEP a p p l i c ation o r SAP’s core accounting software. 2. Compensatory Damages

4 Even if p res erved , this argum ent ap p lies to cas es “[ w ] hen a d is trict court s ubm its tw o o r m ore alternative ground s f or recovery to the jury on a s ingle interrogatory, ” Reev e s v . A croM ed Corp

. , 44 F. 3d 300, 302 ( 5th Cir. 1995) , yet one theory p roves to be erroneo us , w hereas , in this cas e, the evid ence s how ing that Accenture us ed Wellogix trad e s ecrets f or the P2P p ilot, xIEP ap p lication, and SAP’s core accounting s of tw are s up p orted a s ingle, valid legal theory: that Accenture entered into a conf id ential relations hip w ith W e l l o g i x, and then breached that conf

id ence by us ing the trad e s ecr e t s f o r Accenture’s benef

it. See Wa l ther v . Lone S ta r G a s Co. , 952 F. 2d 119, 126 ( 5th Cir. 1992) ( “[W] e w ill not revers e a verd ict s im p ly becaus e the jury m ight have d ecid ed on a ground that w as sup p orted by ins uf f icient evid ence. Ins tead w e m us t as s um e that the jury cons id ered all of the evid ence in reaching its decis ion. ”) , op i ni on on reh’g , 977 F .2d 161, 162 ( 5th Cir. 1992) ( “Jurors are w ell equip p ed to analyze the evid ence and reach a d ecis ion d es p ite the availability of a f actually uns up p orted theory in the jury ins tructions

. ”) ; Prestenba ch v . Ra i ns , 4 F. 3d 358, 361 n. 2 ( 5th C ir. 1993) ( “[A] jury verd ict
m ay be s us tained even though not all the theories on w hich it w as s ubm itt e d had s uf f icient evid entiary sup p ort. ”) ; Rodriguez v . Ri ddel l S ports, Inc. , 242 F. 3d 567, 577 n. 8 ( 5th Cir. 2001) ; E. Tra di ng Co. v. Ref co, In c . , 2 2 9 F

. 3 d 617, 621- 22 ( 7th Cir. 2000)

. As clos ing argum ents d em ons trate, Wellogix’s cas e res ted overw helm ingly on m is ap prop riation ari s i n g f r o m th e P 2 P p roject. See M

uth v . Ford M

otor Co. , 461 F. 3d 557, 564- 65 (5th Cir. 2006) ( d is tinguis hing Wi l mi ngton Sta r by obs erving that “this Court, as w ell as m any others , have engraf ted a s ortof harm les s error glos s onto the bas ic p rincip le” that “if both theories are p ut to the jury, a new trial is generally neces sary w hen the evid ence is ins uf f icient on one”)

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“If the u se of trade secrets results in economic injury to the employer, an award of a c t u a l damages is

. . . a proper remedy.” Zoecon I ndus. v. Am. Stockman Tag Co. , 713 F.2d 1174, 1180 ( 5th Cir. 1983) (citing K & G Oil Tool & Serv. Co. v. G & G F i s h i ng Tool Serv. , 314 S .W.2d 782, 792 (Tex. 1958)). “Damages in misappropriati o n c a s e s can take several forms: the value of plaintiff's lost profits; the defendant’s actual profits from the use of the secret, the value that a reasonably pr u d e n t i nvestor would h ave paid for the trade secret; the development costs the defendant avoided i ncurring through misappropriation; and a ‘reasonable r oyalty.’” Bohns a c k , 668 F.3d at 280 (internal citations o m i tted). “This variety of approaches d emonstrates the ‘flexible ’ approach used to calculate damages for c laims of m isappropriation of tr a d e s e crets.” Id .; see Univ. C omputing Co. v. L

ykes-Youngstown Corp. , 504 F.2d 51 8 , 5 3 5 (5th Cir. 1974) (“The case l aw is thus plentiful, but the standard for measuring damages which emerges i s v ery f lexible.”). U n d e r t his “flexible approach,” even “[w]here the damages are uncertain

. . . we do n ot feel that uncertainty should preclude recovery; t he plaintiff should be afforded every opportuni t y to prove d amages once the misappropriation is shown.” Univ. Computing , 504 F.2d at 539; see C arbo , 166 F. App’x at 724 (finding that “plaintiffs are entitled to adapt their damages theory to f it within the particular facts o f the case”). “‘[I]t will be enough i f the evidence show[s] the extent of the damages as a matter of just and reasonable inference, although the r esult be only approximate.’” DSC Commc’ns Corp. v. Next Level Co m m u n i cations , 107 F.3d 322, 330 (5th Cir. 199 7 ) ( q u o t ing Terrell v. H ousehold Goods Carriers’ B u r e au , 494 F .2d 16, 24 (5th Cir. 1974)); see Downtown Realty, Inc. v. 509 Tremont Bldg., Inc. , 748 S.W.2d 309, 313 (Tex. App. 1988). Here, Wellogix presented sufficient evidence and t estimony to support the jury’s $ 26.2 million compensatory damages award t o Wel l o g i x . Wellogix introduced testimony by damages expert M i c hael Wagner that the company was
13 Case: 11-20816 Document: 00512502053 Page: 13 Date Filed: 01/15/2014No. 11-20816

worth $27.8 million in 2005—the amount, apparen t l y after deducting for licensing fees, that the jury awarded Wellogix. W ellogi x s h o w e d that Wagner based his v aluation, in part, on the decision b y venture capital groups to invest $8.5 million in W e l l o gi x in exchange for a 31% percent equity stake. Wellogix also show e d : t hat an Accenture employee believed that “ BP work alone could generate annual fees

. . . i n excess of $ 20 m illion if Accenture c o ntrolled Wellogix”; that other companies viewed W ellogix’s technology as valuable; that this valu e derived from Wellogix’s c omplex s ervices technology; that no other
company had such technology from 2000 to 2005; t h a t , as discussed above, Accenture misappropriated Wellogix’s trade secrets to develop complex services technology; that this misappropriation created a competitive disadvantage; that this disadvantage caused Wellog i x’s value to drop to “zero”; and that this disadvantage also caused Wellogix to lose out o n potential deals with othe r oil and gas companies. Accenture a rgues that Wagner’s $27.8 million val u a t i o n was too speculative. 5 Accenture notes that Wagner based his v a luation o n a decision by venture capital groups to invest in Wellogix and that, in turn, the groups based their d ecision to invest on speculative projections that Wellogix “would suddenly begin reaping huge profits.” Accenture adds that the projections r e l ied on information supplied by W e l l o g i x , and not objective data, such as c ustomer contracts. However, Wagner testified that , before projecting Wellogix’s value, the venture capital groups a udited Wellogix’s “financials”; made phone calls “to

5 We l l o gix argues that Accenture w aived its challenge to the com p ens atory d am ages aw ard

. H ow ever, in an oral m otion, Accenture s aid : “[ F] or the s am e reas on, Your H onor, that
w e moved f

or j ud gm ent as a m atter of law at the conclus ion of P laintif f 's cas e, w e s o m ove at the conclus ion of all the e v id ence. . . . We d o not believe that there is any legally s uf f icient evid entiar y b a s i s f

o r a reas onable jury to f ind

. . . d am ages
. ” The d is trict court d enied the
m otion, but noted : “That’s a l l p r e s e r v e d

. ” Wellogix s aid that it had “[ n] o objection to that. ” Accord ingly, Accenture d id not w aive its ch all e n ge . See N a v i ga nt Consul ti ng, Inc. v . Wi lki nson , 508 F. 3d 277, 288 ( 5th Cir. 2007)

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partners and cu s t o mers”; “asked knowledgeable people

. . . what they thought of the s oftware”; a nd “tried to find out i[f] there [was] any c o mpetition.” Wagner also testified t h a t “ i t w ould be v ery unusual” if Wellogix did not supply information to the groups because “[t]hat i s the source of most of your information when y ou[ ] come in and [are] asked to value a company.” Given the “‘flexible’ approach used t o c alculate damages,” Bohnsack , 6 68 F.3d at 280, reasonable jurors could f ind that the $8.5 million investment for a 31% stake, and the underlying projections, supported a $27.8 million valuation. See Reeves , 530 U.S. at 150. Accenture argues that, notwithstanding Wagner’s valuation, Wellogix did not show that the a lleged misappropriation “totally or almost totally destroyed” Wellogix’s value. Accenture maintains that Wellogix did not es t a b l i sh “the market v a l u e of the business immediately before and immediately after” the alleged misappropriation. However, Wagner t estified that the investment and
p rojections were made “right about the time that the theft occurred

. ” R o m a n testified that, based on his knowledge of the software industry, “the total value of Wellogix went to zero” after the alleged misappropriation. 6 Reasonable jurors could find that this testimony establis hed the “market value of the business immediately before and after” the alleged misappropriation. Sawyer v. Fitts , 630 S.W.2d 872, 8 75 (Tex. App. 1982); see C. A. May Marine Supply Co. v. Brunswick Corp. , 649 F.2d 1049, 1053 (5th Cir. July 1981). In sum, given the conflicting evidence a nd testimony, and resolving every inference in Wellogix’s favor, see 530 U.S. at 1 50, r easonable jurors c ould find

6 For the reas ons , d is cus s ed below , that Rom an’s gener a l back ground in com p uter sc i ences qualif

ied him to tes tif

y about Wellogix’s s of

tw are, Rom an’s s of

tw are exp ertis e all o we d him to of

f er his op inion a s t o t h e general ef f ect Accenture’s mis ap p rop riation of Wellogix’s technology would have on We l l o gix’s value—particularly given that, as d is cus s ed above, Wellogix’s value d erived from this technology. See Huss v. G a yden , 571 F. 3d 442, 452 ( 5th Cir. 2009)

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that Accenture misappropriat e d We ll o gix’ s tr ade secrets. Reasonable jurors also could find, under the “ ‘flexible’ approach used to calculate damages,” Bohnsack , 668 F.3d at 280, that there was sufficient e vidence to su p p ort a $26.2 million compensatory damages award. As a result, the district court did not abuse its discretion by denying Accenture’s motion for a judgment as a matter of law.

I II. Accenture’s Motion for a New Trial “This Court can overturn a decision denying a motion for a new trial only if it finds that the district court abused its discretion.” Seidman v. Am. Airlines, Inc. , 923 F.2d 1134, 1140 (5th Cir. 1991). “Th e d i s t r i ct court abuses its discretion by d e n y i n g a new trial only when there is a n ‘absolute absence of evidence to support the j ury’s verdict.’” Id. (quoting C obb v. Rowan Companies, Inc. , 919 F.2d 1089, 1090 ( 5th Cir. 1991)); see Smith v. Transworld Drilling Co. , 773 F.2d 6 10, 6 13 (5th Cir. 1 985) (finding an abuse of discretion only if “the verdict is against the weight of the e vidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.”). “ In r eviewing the district court’s actions, the evidence i s viewed in the light most favorable to the jury verdict.” Seidman , 923 F.2d at 1140; see Dotson

v. Clark Equip. Co. , 805 F.2d 1225, 1227 (5th C ir. 1 986) ( “A t rial court should not grant a new trial on evidentiary groun d s unless the verdict is against the great weight of the evidence.”). 1. Roman’s Testimony “In rulings o n the a dmissibility o f expert opinion evidence the trial court has broad discretion and its r u l i n g s must be sustained unless manifestly

e r r o neous.” Viterbo v. Dow Chem. Co. , 826 F.2d 420, 422 (5th Cir. 1 98 7 ) ; s e e Watkins v. Telsmith, Inc. , 121 F.3d 9 8 4 , 9 8 8 ( 5th Cir. 1997)

. In making such rulings, district courts “function as gatekeepers and permit only reliable and relevant expert testimony to be presented t o the jury.” Wilson , 163 F.3d at 937 (citing Daubert , 509 U.S. at 590-93). “District c ourts m ust be a ssured that the

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p r offered witness i s qualified t o testify by virtue of h is ‘knowledge, skil l , experience, trainin g , o r education.’” Wilson , 163 F.3d at 937 ( quoting F E D

. R. E V I D

. 702). “A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified t o testify in a p a rticular field or on a given s ubject.” Wilson , 163 F .3d at 937; see United States v. Cooks , 589 F.3d 173, 1 7 9 ( 5th Cir. 2009). “‘Vigorous cross-examination, presentation of contr a r y evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but a d m i ssible evidence.’” Pipitone v. Biomatrix, Inc. , 288 F.3d 2 39, 250 (5th Cir. 2002) (quoting Daubert, 509 U.S. at 596). Here, the district court did not abuse its discretion by allowing Wellogix software expert Roman to testify. Roman’s experience as a software developer and forensic analyst, and h is fluency in different programming codes, qualified him as an expert on the subject o f his testimony: soft w a r e p r o g r amming and

source c odes. See Wilson , 163 F.3d at 937. F urther, b y limiting his testimony to whether Wellogix’s source code was a trade secret, and whether Wellogix’s code matched SAP’s, Roman did not stray from this subject matter. See id

. Accenture argues that Roman’s general computer sciences b a c k gr o u n d did not qualify him to testify about “the o il-and-gas i ndustry, complex-services procurement, or SAP so f t w a r e . ” H owever, R oman did not need particular expertise in the oil-and-gas industry, or complex services procurement, to help the jury understand software concepts and terms. See F E D

. R. E V I D

. 702(a). Further, Roman had “specialized knowledge” about SAP’s software because he “testified that he had been able to teach himself [SAP’s p r ogramming language] language a nd implement the SAP software.” See id

. Given that “Rule 702 does not m andate that an e xpert be highly qualified in order to testify about a given issue,” Huss , 5 71 F.3d at 452 (emphasis added), R oman’s b ackground in computer science, and knowledge about SAP’s software, sufficed.

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Accenture a rgues that, even i f Roman w as qualified, h is testimony was unreliable because he did not investigate the f acts unde r lying h is opinions. Ac centure notes that Roman twice misstated facts in his testimony. F i r s t , Roman said t h a t a Wellogix design specification was “an incredibly valuable trade secret” and “would not be known publicly” even though it was available on Wellogix’s public website. S econd, Roman compared Wellogix’s source c o d e t o the wrong s oftware, causing the di strict court to wonder ho w “ [h]ow

. . . somebody as experienced as Mr. Roman [could] be . . . that much off the point” and make “such a rudimentary mistake.” However, Accenture had the chance to h ighli gh t a n d di s p u t e th e se errors through “[v]igorous cross-examination” and the “presentation of contrary evidence.” Pipitone , 288 F.3d a t 250. In the context of Roman’s broader testimony, two misstatements do not constitute “manifest[ ] erro[r].” Viterbo , 826 F.2d at 422. Accenture renews i t s argument, discussed above, that Roman testified about matters outside h i s p ersonal knowledge. However, as we noted above, Roman’s testimony about the meaning of certain terms, and the availability of Wellogix’s source c ode, was within his “experience, training, or education.” See Wilson , 163 F.3d at 937. Likewise, Roman’s t estimony about Accenture’s access to Wellogix’s trade secrets, Accenture ’ s b r e ach of a confidentiality agreement with Wellogix, a nd Wellogix’s post-tort value r elated to Wellogix’s software, and therefore was within Roman’s expertise. See id .; F E D

. R. E V I D . 702. 2. Patent-Related Documents Evidence is r elevant if “it has any tendency to make a f act m ore or less probable than it would be without the evidence.” F E D

. R. E V I D

. 401(a). A district court “may exclude r elevant ev i d e nce i f its probative value is substantially

o u t w e ighed by a danger of

. . . u nfair p r ejudice, confusing the issues, [ o r] misleading the jury.” F E D

. R. E V I D

. 403; see Old Chief v. United S tates , 5 19 U.S. 172, 1 80 ( 1997)

. “A t r i al court’s ruling on a dmissibility under R ule 403’s

18 Case: 11-20816 Document: 00512502053 Page: 18 Date Filed: 01/15/2014No. 11-20816

balancing test will n ot be overturned on a ppeal absent a c lear abuse of d i s c r etion.” Ballou v. Henri S tudios, Inc. , 656 F.2d 1147, 1153 (5th Cir. Sept. 1981); s ee Old Chief

, 519 U.S. at 180

. “W e w i l l not reverse a district court’s evidentiary rulings unless they are erroneous and substantial prejudice results. The burden of proving substantial prejudice lies w ith the party asserting error.” F.D.I.C. v. Mijalis , 15 F.3d 1314, 1318-19 (5th Cir. 1 994); see Smith v. Wal-Mart Stores (No. 471) , 891 F.2d 1177, 1180 (5th Cir.1990). Her e, the district court did not abuse its discretion by allowing Wellogix to introduce into evidence documents—including emails and a p atent demand letter—in whi c h Accenture a ppears to acknowledge, among other things, that its infringement of Wellogix patents created “ some pot e n t i a l for l i tigation.” The d i s t r i c t court, as requested by Accenture, instructed th at “[t]he existence of a patent does not mean that a trade secret exists.” As discussed above, “[a] jury is pres u m e d to follow its instructions,” Weeks, 528 U.S. at 234, and Accenture has not overcome this presumption in this instance. Also, noted earlier, without the documents, Wellogix presented sufficient evidence and testimony to support Wellogix’s m isappr o p r i a t i on claim. In addition, as discussed below, the documents are relevant to support other prop o s iti o n s , s u ch a s Ac c e nt u re’s malice to Wellogix. Although the district court observed i n its o rder d e nying the motion for a new trial that, “from these emails, t h e j u ry was e ntitled t o draw the i n f e r ence that Accenture and BP had engaged i n misappropriation of trade secrets,” the record evidence does not support that the district court allowed the patent-related documents into evidence for this purpose. Accenture argues that “the verdict itself shows the jury improperly relied

on the” d ocuments because the jury found that, by May 15, 2006—the date of the demand l etter—Wellogix should h ave discovered Accenture’s misappropriation. However, as the district court concluded, the jury’s finding w as p roper because Wellogi x f

ramed the d emand letter as “ an indicator of the d ate by which

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Wellogix was aware of Accenture’s wrongful c o nduct with respect to Wellogix’s intell e c t u al p ro p e rty.” For example, in its closing statement, Wellogix noted that t h e date of discovery was “a tough one,” and that the demand letter s u ggested “the date of r easonable diligence when we discovered misappropriation.” Given that Wellogix did not represent that the documents showed that Ac c e n t u re misappropriated Wellogix trade secrets, the jury’s use of the May 15, 2006 date, without more, does not ove r c o m e t h e p resumption that the jury followed its instructions. See Weeks , 528 U.S. at 234. In sum, the district court did not abuse its discretion by allowing Roman to testify about software because Roman’ s c o mputer sciences background qualified him as an e xpert on software, and because he limited his testimony to that s ubject matter. The district c o urt also did not abuse its discretion by allowing Wellogix to introduce into evidence patent-related documents because, among other things, the district court cautioned the jury that “[t]he existence of

a patent does not mean that a trade secret exists.” As a result, the district court did not abuse its discretion by denying Accenture’s motion for a new trial.

IV. The Punitive Damages Award 1. Malice “When reviewing a district court’s refusal to s et aside an award of punitive damages, we will reverse on l y u p on determining that ‘no legally sufficient evidentiary basis’ exists for making such an a ward, the same standard applied by the district court i n the first instance.” Watson v. J ohnson M

o bile Homes , 284 F.3d 568, 571 (5th C i r . 2 0 0 2 ) ( quoting F E D

. R. C I V

. P. 50(a)(1)). A legally sufficient evidentiary basis e xists if “the plaintiff proves by clear and convincing evidence that h a rm resulted from ‘malice.’” Bennett v. Reynolds , 315 S.W.3d 867, 871 (Tex. 2010); see T E X

. C I V

. P RA C

. & R E M

. C O D E AN N

. § 41.003(a)(2). “Malice” exists if there is “ ‘a specific intent by the defendant to cause substantial injury [or harm] to the claimant.’” Bennett , 315 S.W.3d at 872 ( quoting T E X

. C I V

. P RA C

.
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& R E M

. C O D E AN N

. § 41.001(7)). “[S]pecific intent,” in turn, e xists if “the actor desires to c ause the consequences of his act, or he believes the consequences are substantially certain to result from it.” Marrs & Smith P’ship v. D.K. Boyd Oil & Gas Co. , 223 S.W

. 3d 1, 22 (Tex. App. 2005) (citing Reed Tool Co. v. Copelin , 689 S.W.2d 404 , 4 0 6 ( T e x . 1985)). “Malice may be proven by direct or circumstantial e vi dence.” Ma r rs & Smith , 223 S.W.3d at 22 (citing Mobil Oil Corp. v. Ellender , 968 S.W.2d 917, 921 (Tex.1998)). Her e , W e ll o gix i ntr o du c e d s u f f i c i ent e vidence and testimony to support the jury’s finding that Ac c e nture acted with m alice. Wellogix showed: that Accenture s tated tha t it could “easily replicate[ ]” and “[l]ift” Wellogix technology; that Accenture “harvest[ed]” Wellogix technology while engaged in confidential partnerships with Wellogix; that Accenture CEO Peggy Kostial wrote in a May 2006 email that “[o] n e can only hope” that SAP would no long “sponsor” Wellogix; that Accenture, i n an apparent a ttempt to interfere with Wellogix’s business relationship with SAP, warned Wellogix of SAP’s “bleed the knowledge tactics”; that Accenture “acknowledge[d] its responsibility f or patent infringement caused by products created by Ac c e n t ure during those previous phases of the [P2P] project”; and that Accenture r ecognized that “[w]e may be at risk if Wellogix claims that we used k n o w l e dge of their product through involvement with e Trans to design and develop a solution for BP.” Against the backdrop discussed above—Accenture’ s d e c i s i o n t o d ev e l o p th e P2P p i lot without Wellogix, and th e n a p p a r e n tly to “[u]se Wellogix c ontent” for the “creation of

.

. . complex s e rvices” temp l a t e s f o r the pilot—this evidence and testimony was sufficient to support the jury’s malice finding. See Marrs & Smith , 223 S.W. 3d at 22-23 (finding that the defendant’s attempts to interfere with the plaintiff’s b usiness relationships s u pported the jury’s malice f inding); Nova Consult i ng Grp., Inc. v. Eng’g Consulting Servs. , Ltd. , 290 F. App’x 727, 741 ( 5th Cir. 2008)

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(finding that “vulgarity about [the plaintiff] in [the defenda n t ’ s ] email

. . . was evidence a reasonable jury could consider regarding malice”). Accenture a rgues that Wellogix did not show malice because Wellogix did not introduce clear and convincing evidence that Accenture i nte n ded to cause substantial injury to Wellogix. Accenture notes that Wellogix CE O E p l ey testified that he had “many positive rela t i o n ships with Accenture personnel,” that “Accenture was helpful” to Wellogix, that Accenture tried to warn Wellogix to protect its intellectual p roperty from S A P , a n d that Accenture CEO Kostial

w as a “ good friend.” Accenture adds that Kostial wrote that she wa s “supportive” of Wellogix in a January 2006 email. However, Accenture does not cit e , nor could we find, c ase law to support the proposition that a defendant’s supportive comments about a plaintiff, o r , conversely, a plaintiff’s supportive comments a b o u t a defendant, preclude a j ury’s f inding of malice. Rather, the jury was able t o weigh Epley’s comments, and Kostial’s “support[ ],” against the evidence, discussed above, that Accenture “harvested” W ellogix technology. See Reeves, 530 U .S. a t 150. “As an appellate court reviewing a cold record l ong after the jury has evaluated the evidence,” Richardson v. State , 879 S.W.2d 874, 879 (Tex. Crim. App. 1993) (en banc), we decline to “reweigh th[is] e vidence.” Carey v. Apfel , 230 F.3d 131, 135 (5th Cir. 2000) (internal quotation marks omitted). 2. Due Process “[W]e review [a] constitutional challenge to the size of th e punitive damages award de n ovo.” L incoln v. Case , 340 F.3d 2 8 3 , 2 9 0 ( 5 t h Cir. 2003) (citing Cooper Indus., Inc

. v . Leatherman Tool Grp., Inc. , 532 U.S. 4 24, 436 (2001)). “The Due Process Clause of the Fourteenth Amendment prohibits the imposition of gr ossly excessive or arbitrary punishments on a tortfeasor.” State Farm , 5 38 U.S. at 416; see TXO Prod. Corp. v. Alliance Res. Corp ., 509 U.S. 443, 446 (1993). The Supreme Court has established “three guideposts courts should

c o n s i d e r i n d e t e r m i ni n g wh e th e r a punitive damages award i s unconstituti o n ally

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excessive: the degree of the defendant’s reprehensibility or culpability; the d i s parity between the harm or potential harm suffered by the victim and the punitive damages award; and the sanctions authorized or imposed in other cases for comparable misconduct.” Lincoln v. Case , 340 F.3d 283, 292 (5th Cir. 2003) (citing BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 574-75 (1996)). “[T]he m ost i mportant indicium of t h e r e asonableness of a punitive damages award is the degree of reprehen s ib i l i t y of the defendant’s c onduct.” State Farm , 538 U.S. at 419 ( quoting Gore , 517 U.S. at 575). “R eprehensibility” factors include whether the harm c aused was physical as opposed to economic; the tortious conduct evinced an indifference t o or a r eckless disregard o f th e health o r safety of others; the target of the conduct had fi n a n c ial vulnerability; the c o nduct i nvolved repeated actions or was an isolated incident; and the harm was th e result of intentional malice, trickery, or deceit, or mere accident State Farm , 538 U.S. at 4 19 (citing Gore , 517 U.S. at 576-77). “The existence of
any one of these factors weighing i n favor of a plaintiff may not b e sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.” State Farm , 538 U.S. at 419. “[T]he potential relevance of the r atio between c ompensatory and punitive damages is indisputable, b e i n g a central feature in our due p rocess analysis.” Exxon Shipping Co. v. Baker , 5 54 U.S. 471, 507 (2008); see G ore , 517 U.S. at 580- 82 (“The principle that e xemplary da m a g e s m u s t bear a ‘reasonable relationship’ t o c o m p e n s at ory damages h as a l ong pedigree.”). Although “we h ave consi s t e ntly rejected the notion that the c onstitu t i o n a l line is marked by a simple mathematical formula, we have determined th at few awards e xceeding a single-digit ratio between punitive and compensatory d a mages, to a significant degree, will satisfy due process.” Baker , 554 U.S. at 501 (internal citations and quotat i o n m a r ks omitted); see State F arm , 538 U.S. at 4 25 (“Single-digit multipliers are more likely to comport with due process[.]”); Pacific Mut. Life Ins.
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Co. v . Haslip , 499 U.S. 1, 23-24 (1991) (uph o lding as constitutional a punitive damages award “more than 4 times the amount of compensatory damages”). Here, the Gore guideposts at issue in this case—reprehensibility and the ratio between punitive and compensatory damages—do not require u s to find that the punitive damages award was grossly excessive. The “reprehensibility” guid e post is neutral. Some factors favor Accenture. For example, Wellogix d o e s not dispute that “the h arm caused was . . . economic,” and that Accenture’s conduct did n ot “evince[ ] an indifference to or

a reckless disregard of the health or safety of others.” St a t e F a r m , 5 38 U.S. at 419. Other factors favors Wellogix. For example, t he jury’s “malice” finding, discussed above, supports that “the harm was the result o f intentional malice.” State F arm , 538 U.S. a t 4 1 9

. O t h er factors are ambiguous. For example, the evidence that Wellogix’s value derived from its complex services t echnology, and that this v a l u e plummeted when Accenture misappropriated the technology, suggests that Wellogix was “financial[ly] vulnerab[le].” State Farm , 538 U.S. at 419. However, the Supreme Court neither has defined “financial vulnerability,”

nor has addressed whe t h er a corporation can be financially vulnerable in this context. Cf. State F

arm , 528 U.S. at 4 33-34 (finding that an elderly couple was

“ e c o n o m i cally vulnerable”). As a result, we cannot say that the “financia l vulnerability” factor favors either party. The “ r a t i o ” guidepost strongly favors Wellogix. The r atio of p unitive to compensatory d amages in this case is $18.2 million to $ 26.2 millio n , o r about 0.7:1. Although we dec l i n e to “draw a mathematical bright line between the

c o n stitutionally a cceptable and the constitutionally u nacceptable.” Gore , 582, 517 U .S. at 583 ( quoting TXO , 5 09 U.S. at 458), this 0 .7:1 ratio i s within the

“ [ s ] i n gle-digit [ratio] likely to comport with the due p rocess.” State F arm, 5 3 8 U.S. at 425; see Haslip , 499 U.S. at 23-24.

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Accenture argues that “[o]ther courts have r educed punitive damages

a w a r d s t o f

ar less than 1:1 ratios because the awards were not necessary to punish or deter.” However, the cases Accenture cites— Chi

. Title I ns. Corp. v. Magnuson , 487 F.3d 985, 990, 998-1001 (6th Cir. 20 0 7) ; Inter Med. Supplies, Ltd.

v. EBI M ed. S ys., Inc. , 181 F.3d 446, 463-70 (3d Cir. 1990)—are distinguishable. The punitive damages award in Magnuson was three times the amount of the compensatory damages award, see 487 F .3d at 990; the punitive damages award in E BI was $2 million more than the compensatory damages award, see 181 F.3d at 450. By contrast, the punitive award in this case is $8 million lessthan the compensatory award. Accenture does not identify, nor could we find, a case in which an appellate court vacated or reduced a punitive award that was less than the compensatory award. Given that the reprehens ib ility gu i d e p o s t w a s neutral, we decline to do so in this case. In sum, there was sufficient evidence and testimony to support the jury’s

“ m alice” finding. I n addition, the amount of the punitive damages award w a s not grossly e xcessive. As a result, the district court did n ot err by refusing to set aside the punitive award. V. Conclusion Accordingly, we AFFIRM the district court’s judgment.

25 Case: 11-20816 Document: 00512502053 Page: 25 Date Filed: 01/15/2014