Two cases involve grossly excessive disgorgement awards. Pegasystems Inc v Appian Corp (§125) reversed a $2 billion award for misappropriation of a trade secret. The award comprised the defendant’s entire profit for several years. The jury instruction did not require the plaintiff to establish a causal connection between the trade secret and any of the defendant’s sales. Swinomish Indian Tribal Community v BNSF Railway Co (§129) is an award of the defendant’s entire profit from transporting thousands of carloads of oil 1,500 miles where the trains crossed a 0.7-mile easement over the plaintiff’s land and the defendant knew this load of traffic violated the easement. The court did not consider the profit the defendant might have made using its trains and cars in other projects, and it gave the defendant no credit for the contribution of its resources in making the profit.

Availability of an unjust enrichment claim when the subject matter of the claim is covered by an express contract—fraud exception—election of remedies

AXE purchased a house at a foreclosure auction, renovated it and resold the house to Merriman for $255,000. Merriman quickly discovered numerous problems in the house, which he purchased “as is”. Merriman filed a complaint claiming that there were undisclosed latent defects and seeking relief on grounds that included breach of contract,