Articles Posted in Business Litigation

Florida’s non-compete statute states in pertinent part, at Florida Statutes § 542.335(1)(j), that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury.” There is a divergence, however, in the application of this presumption between Florida state courts and federal courts. Florida state courts routinely apply this presumption when the plaintiff proves…

Under Florida’s non-compete statute, Florida Statutes section 542.335(1(a), a court “shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” The most common method of enforcing restrictive covenants is an injunction, i.e., a court order barring a particular act such as operating…

Florida law contains an explicit privilege against disclosure of alleged trade secrets. This trade secret privilege is set forth in Florida Statutes Section 90.506, which states in pertinent part: “A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance…

Under federal law, trademark infringement claims mainly governed by the Lanham Act. The Lanham Act imposes civil liability on “[a]ny person who … uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading misrepresentation of…

Miami’s Third District Court of Appeal, in Agritrade, LP v. Quercia, 253 So.3d 28 (Fla. 3d DCA 2017), explained the elements of a Florida law cause of action for unjust enrichment: “(1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3)…

Florida’s Second District Court of Appeal in Atomic Tattoos, LLC v. Morgan, 45 So.3d 63 (2d DCA 2010), explained that a trial court should order a temporary injunction in non-compete covenant litigation only when “the moving party has demonstrated (1) irreparable harm to the moving party unless the injunction issues, (2) unavailability of an adequate…

Federal courts in Florida allow a part to obtain a temporary restraining order, commonly referred to as a “TRO,” by proving the following elements set forth by the United States Court of Appeals for the Eleventh Circuit in Schiavo ex. rel Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005): “(1) [there is] a substantial…

The tort of “tortious interference with business relationship” is phrased in various ways, including “tortious interference with contractual relationship,” “intentional interference with prospective economic advantage,” and “tortious interference with advantageous business relationship.” However nominally titled, the tortious interference tort is defined by its four basic elements that a party must prove: (1) the existence of…

Physicians have sometimes challenged their non-compete agreements on the grounds that continuity of patient care is an “overriding public policy reason.” Physicians have argued that public policy allows the physician to care for his patients after termination of his employment, even when the wording of the restrictive covenant bars the physician from continuing to treat…

Florida law sets forth the requirements for entry of a non-compete injunction, i.e., a court order barring competition under specified circumstances and duration. Relevant here, section 542.335(1)(j), Florida Statutes, provides that a court shall enforce a valid “restrictive covenant by any appropriate and effective remedy, including but not limited to, temporary and permanent injunctions.” Peter…