Articles Posted in Business Litigation

Published on: October 1, 2022

MIAMI NON-COMPETE AGREEMENTS: ENFORCING NON-COMPETE AGREEMENTS TO PROTECT A BUSINESS’ SPECIALIZED TRAINING

Non-compete agreements and other restrictive covenants in employment contracts are enforceable if they protect a business’ legitimate business interest. A “legitimate business interest must represent an investment by the employer and must enable unfair competition if misappropriated.” IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016). Florida’s non-compete statute, Section 542.335, includes a non-exhaustive list of examples of legitimate business interests, one of which is the business’ “extraordinary or specialized training.” Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, “a ‘legitimate business interest’ is an identifiable business asset that constitutes or represents an investment by the proponent of the restriction such that, if that asset were misappropriated by a competitor (i.e., taken without compensation), its use in competition against its former owner would be “unfair competition.” White v. Mederi Caretenders Visiting Servs. Of Se. Fla, LLC, 226 So. 3d 774 (Fla. 2017). Indeed, the Supreme Court of Florida has held that a “legitimate business interest is a business asset that, if misappropriated, would give its new owner an unfair competitive advantage over its former owner.” White v. Mederi Caretenders Visiting Servs. Of Se. Fla, LLC, 226 So. 3d 774 (Fla. 2017). An employer can enforce a non-compete agreement if “there [are] special facts present over and above ordinary competition such that, absent a non-competition agreement, ‘the employee would gain an unfair advantage in future competition with the employer.’” Passalacqua v. Naviant, Inc., 844 So.2d 792 (Fla. 4th DCA 2003).

Training an employee constitutes a legitimate business interest protectable by Florida law when the training rises to the level of being specialized or extraordinary. Training is classified as extraordinary when it exceeds ‘what is usual, regular, common, or customary in the industry in which the employee is employed.’” Dyer v. Pioneer Concepts Inc., 667 So. 2d 961 (Fla. 2d DCA 1996). The special training must go above and beyond “what would be common or typical in the industry.” Autonation Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004). A business’ optional training will “not constitute a legitimate business interest sufficient to justify injunctive relief.” Austin v. Mid State Fire Equip. of Cent. Florida, Inc., 727 So. 2d 1097 (Fla. 5th DCA 1999). As such, Florida courts have found no legitimate business interest where an employee “was not required to attend the various training seminars and only ‘popped in and out’ of the meetings.” Autonation Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004).

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Published on: September 24, 2022

MIAMI BUSINESS LITIGATION: DETERMINING STANDING IN A SHAREHOLDER DERIVATIVE LAWSUIT

By Mavrick Law Firm

Business litigation often involves disputes between a corporate entity and its equity owners. A shareholder of a corporation can bring a lawsuit against the corporation in two circumstances: (1) when the shareholder has been personally harmed or (2) when the corporation as a whole has been harmed. The first type of lawsuit is a direct action. A direct action “seeks redress for an injury suffered directly by the shareholder which is separate from any injury sustained by the other stockholders.” Fox v. Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175 (Fla. 5th DCA 2001). The second type of lawsuit is a derivative action. A derivative action “seeks redress for an injury suffered by the corporation or the stockholders generally.” Fox v. Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175 (Fla. 5th DCA 2001). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

“The substance of the allegations made, and not what they are labeled, determines” what type of lawsuit a shareholder should file against the corporation. Iezzi Fam. Ltd. P’ship v. Edgewater Beach Owners Ass’n, Inc., 254 So. 3d 584 (Fla. 1st DCA 2018). In Dinuro Investments, LLC v. Camacho, 141 So. 3d 731 (Fla. 3d DCA 2014), Florida’s Third District Court of Appeals adopted the following two-prong test for determining a shareholder’s standing to bring a direct suit:

[A]n action may be brought directly only if (1) there is a direct harm to the shareholder or member such that the alleged injury does not flow subsequently from an initial harm to the company and (2) there is a special injury to the shareholder or member that is separate and distinct from those sustained by the other shareholders or members.

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Published on: September 22, 2022

FORT LAUDERDALE BUSINESS LITIGATION: DEFENDING AGAINST TORTIOUS INTERFERENCE CLAIMS

By Mavrick Law Firm

In business litigation, tortious interference claims arise when another business or person unjustly interferes with the business or contractual relationships of another business. “The tort of tortious interference teeters between two competing values – the desire to protect the reasonable expectations of the parties to a business relationship on one hand, and the need to avoid excessive restrictions on freedom of competition on the other.” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001). However, certain types of interference may qualify as “privileged” or “justified” when the party acts in its own financial interests and the interference does not involve physical violence, misrepresentations, intimidation, conspiratorial conduct, illegal conduct, or threats of illegal conduct. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

“Four elements are required to establish tortious interference with a contractual or business relationship: (1) the existence of a business relationship or contract; (2) knowledge of the business relationship or contract on the part of the defendant; (3) an intentional and unjustified interference with the business relationship or procurement of the contract’s breach; and (4) damages to the plaintiff as a result of the interference.” Howard v. Murray, 184 So. 3d 1155 (Fla. 1st DCA 2015). The alleged interference must also be “unjustified” for a business to recover under Florida law. However, “Florida law recognizes the principle that actions taken to safeguard or protect one’s financial interest, so long as improper means are not employed, are privileged.” Johnson Enters. v. FPL Group, Inc., 162 F.3d 1290 (11th Cir.1998). “Florida ‘recognizes competition between competitors, and if there is an interference with a non-exclusive right[,] this is a privileged interference.’” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001).

“Justification or privilege to interfere with a contract is a defense to a tortious interference claim.” Abele v. Sawyer, 750 So. 2d 70 (Fla. 4th DCA 1999). Justification or privilege to interfere with a contract is a matter of law that must be raised as an affirmative defense. Southeastern Integrated Med., P.L. v. North Fla. Women’s Physicians, P.A., 50 So. 3d 21 (Fla. 1st DCA 2010). “Two privileges have been recognized in defense of a tortious interference claim.” Weisman v. Southern Wine & Spirits of Am., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020).

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Published on: September 17, 2022

MIAMI BUSINESS LITIGATION: ENFORCING FLORIDA’S TRADE SECRET ACT TO PREVENT EMPLOYEES FROM MISAPPROPRIATING EMPLOYER’S TRADE SECRETS

By Mavrick Law Firm

Trade secret misappropriation claims are commonly filed in business litigation by employers against former employees. An employee is precluded from using for his or her own advantage, and to the detriment of a former employer, any trade secrets obtained in the course of prior employment. East v. Aqua Gaming, Inc., 805 So. 2d 932 (Fla. 2d DCA 2001). Where an employee acquires, during the course of his or her employment, a special technique or process developed by his or her employer, the employer is under a duty, even in the absence of an express contractual provision, not to disclose such skills, techniques, or processes for the employee’s own benefit or another’s benefit to the detriment of the former employer. Premier Lab Supply, Inc. v. Chemplex Industries, Inc., 10 So. 3d 202 (Fla. 4th DCA 2009). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

In cases where there is no restrictive covenant between an employer and its employees, employers can sometimes prohibit former employees from disclosing confidential information under the Florida Uniform Trade Secrets Act (“FUTSA”). The lack of a confidentiality agreement does not necessarily defeat an employer’s argument that particular information is trade secret. Premier Lab Supply, Inc. v. Chemplex Industries, Inc., 10 So. 3d 202 (Fla. 4th DCA 2009). FUTSA mirrors the federal Uniform Trade Secrets Act, which also prohibits misappropriation of trade secrets and provides certain remedies. To obtain relief under FUTSA, the employer must prove: “(1) that it possessed a trade secret and took reasonable steps to protect its secrecy; and (2) the trade secret was misappropriated, either by one who knew or had reason to know the trade secret was improperly obtained or who used improper means to obtain it.” Mapei Corp. v. J.M. Field Marketing, Inc., 295 So. 3d 1193 (Fla. 4th DCA 2020).

Under FUTSA, “trade secret” is defined as “information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” § 688.002, Fla. Stat. To be a trade secret under FUTSA, the information sought to be protected must be secret, and information that is generally known, or is necessarily disclosed upon use by a third party, cannot qualify as a trade secret. In re Maxxim Med. Group, Inc., 434 B.R. 660 (Bankr. M.D. Fla. 2010).

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Published on: September 14, 2022

FORT LAUDERDALE BUSINESS LITIGATION: FLORIDA’S INDEPENDENT TORT DOCTRINE

By Mavrick Law Firm

In business litigation, claims alleging fraud and breach of contract are often filed in the same lawsuit. However, if the factual allegations or the damages sought in fraud claims are the same as those in the party’s breach of contract claim, then Florida’s independent tort doctrine may apply. Florida’s independent tort doctrine requires a fraud to be “independent of a breach of contract claim” – i.e., for the “fraud allegations” to be “separate and distinct from defendants’ performance under the contract.” Glob. Quest, LLC v. Horizon Yachts, Inc., 849 F.3d 1022 (11th Cir. 2017). The independent tort doctrine “requires proof of facts separate and distinct from the breach of contract[.]” HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238 (Fla. 1996). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Florida courts routinely apply the independent tort doctrine to dismiss tort claims that are in fact founded on contractual duty. The court typically analyzes the duties at issue in the case in deciding whether to dismiss the tort claim(s). For example, in Electronic Sec. Systems Corp. v. Southern Bell Tel. & Tel. Co., Florida’s Third District Court of Appeal analyzed whether fraud and contract claims could co-exist when a corporation entered into a contract with a telephone company for the placement of an advertisement in the yellow pages. 482 So. 2d 518 (Fla. 3d DCA 1986). That contract had a limited liability provision that limited the corporation’s remedies to liquidated damages. Id. at 519. When the advertisement did not appear in the directory, as contemplated by the contract, the corporation sued the telephone company under both contract and tort theories. The appellate court summarily dismissed each of the tort claims under the independent tort doctrine, concluding that the only duty at issue in the case was contractual.

In MidAmerica C2L Inc. v. Siemens Energy Inc., the Eleventh Circuit Court of Appeals granted summary judgment on the plaintiff’s two fraud claims because they were, in essence, simply a restatement of the plaintiff’s contract and breach of warranty claims. 25 F.4th 1312 (11th Cir. 2022). The court focused on the duties owed under the operative contract, explaining:

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Published on: September 10, 2022

FORT LAUDERDALE NON-COMPETE AGREEMENTS: SEEKING INJUNCTIVE RELIEF TO ENFORCE RESTRICTIVE COVENANTS

By Mavrick Law Firm

A prevalent issue in business litigation is whether an injunction is needed to enforce a restrictive covenant and protect a party’s legitimate business interest. In Florida, Section 542.335, Florida Statutes, governs the enforcement of restrictive covenants. Under section 542.335, “[a] trial court may grant a temporary injunction if the complainant proves ‘(1) the likelihood of irreparable [injury], (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.’” TransUnion Risk & Alternative Data Sols., Inc. v. Reilly, 181 So. 3d 548 (Fla. 4th DCA 2015). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A showing of irreparable injury is required for a temporary injunction to issue. Surgery Ctr. Holdings, Inc. v. Guirguis, 318 So. 3d 1274 (Fla. 2d DCA 2021). With respect to the likelihood of irreparable injury, Section 542.335(1)(j) provides that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” Thus, “a party seeking to enforce a restrictive covenant by injunction need not directly prove that the defendant’s specific activities will cause irreparable injury if not enjoined.” Am. II Elecs., Inc. v. Smith, 830 So. 2d 906 (Fla. 2d DCA 2002). A party only needs to prove a violation of an enforceable restrictive covenant to be entitled to the presumption. Surgery Ctr. Holdings, Inc. v. Guirguis, 318 So. 3d 1274 (Fla. 2d DCA 2021).

An enforceable restrictive covenant is one in which “the contractually specified restraint is reasonably necessary to protect [a] legitimate business interest.” Section 542.335(1)(c). “Therefore, to benefit from the presumption of irreparable injury, the party seeking to enforce a covenant not to compete must show that the covenant protects a legitimate business interest as defined by section 542.335(1)(b) and that the covenant was violated.” Walsh v. Paw Trucking, Inc., 942 So. 2d 446 (Fla. 2d DCA 2006). Fla. Stat.

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Published on: September 7, 2022

MIAMI BUSINESS LITIGATION: FRAUD DAMAGES UNDER FLORIDA’S FLEXIBILITY THEORY

By Mavrick Law Firm

In business litigation, Florida courts typically apply a flexibility theory of damages in fraud case. Gregg v. U.S. Industries, Inc., 887 F.2d 1462 (11th Cir. 1989). “The ‘flexibility’ theory of damages allows a plaintiff to choose either benefit-of-the-bargain or out-of-pocket damages in fraud cases[.]” Morgan Stanley & Co. Inc. v. Coleman (Parent) Holdings Inc., 955 So. 2d 1124 (Fla. 4th DCA 2007). This theory “assure[s] that an injured party will obtain full compensation for the effect of the fraud[.]” Trafalgar Cap. Specialized Inv. Fund, FIS v. Atl. Energy Sols., Inc., 2010 WL 11505575 (S.D. Fla. Nov. 30, 2010). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

If the defrauded party seeks recovery “of only the amount he actually lost, his damages will be measured under [the out-of-pocket-rule].” DuPuis v. 79th Street Hotel, Inc., 231 So. 2d 532 (Fla. 3d DCA 1970). Thus, “[t]he out-of-pocket-rule allows for recovery of amounts that the plaintiff actually lost.” Laney v. Am. Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003). The out-of-pocket rule awards as damages the difference between the purchase price and the real or actual value of the property. Kind v. Gittman, 889 So. 2d 87 (Fla. 4th DCA 2004). “[W]here the circumstances disclosed by the proof are so vague as to cast virtually no light upon the value of the property had it conformed to the representations, the court will award damages equal only to the loss sustained.” DuPuis v. 79th Street Hotel, Inc., 231 So. 2d 532 (Fla. 3d DCA 1970).

On the other hand, the benefit-of-the-bargain-rule “is utilized when the out-of-pocket rule does not fully compensate the plaintiff.” Laney v. Am. Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003). “Under the benefit-of-bargain-rule, the plaintiff is entitled to the loss of its bargain, similar to a recovery on a warranty.” Laney v. Am. Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003). “[I]f the fraudulent misrepresentation also amounts to a warranty, recovery may be had for the loss of the bargain, because a fraud accompanied by a broken promise should cost the wrongdoer as much as the latter alone[.]” DuPuis v. 79th Street Hotel, Inc., 231 So. 2d 532 (Fla. 3d DCA 1970). The benefit-of-the-bargain rule awards as damages the difference between the value of the property as represented and the actual value of the property. In re Biddiscombe Intern., L.L.C., 392 B.R. 909 (Bank. M.D. Fla. 2008).

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Published on: September 3, 2022

FORT LAUDERDALE BUSINESS LITIGATION: PROTECTING CUSTOMER INFORMATION FROM TRADE SECRET MISAPPROPRIATION

By Mavrick Law Firm

Business litigation in Florida often involves claims for trade secret misappropriation under Florida’s Uniform Trade Secret Act (“FUTSA”) or the Defend Trade Secrets Act (“DTSA”). In business litigation, a business’ customer list may qualify for trade secret protection if the list is misappropriated through improper means. may occur during the employment or after an employees’ employment terminates. For liability to attach under DTSA or FUTSA, the trade secret information must be the fruit of a wrongful acquisition or misappropriation. Misappropriation of a trade secret occurs where a person who knows or has reason to know that the trade secret was acquired by improper means acquires the trade secret of another or where a person who has obtained the trade secret by improper means discloses or uses the trade secret of another without express or implied consent.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A plaintiff bringing a claim under the DTSA must plausibly allege that it (i) “possessed information of independent economic value” that (a) “was lawfully owned by” the plaintiff and (b) for which the plaintiff “took reasonable measures to keep secret,” and (ii) the defendant “used and/or disclosed that information,” despite (iii) “a duty to maintain its secrecy.” Trinity Graphic, USA, Inc. v. Tervis Tumbler Co., 320 F.Supp.3d 1285 (M.D. Fla. 2018).

Similarly, FUTSA provides a cause of action for the misappropriation of trade secrets. Fla. Stat. § 688.001-09. “To prevail on a FUTSA claim, a plaintiff must demonstrate that (1) it possessed a ‘trade secret’ and (2) the secret was misappropriated.” Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279 (11th Cir. 2018). Under FUTSA, a “trade secret” is:

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Published on: August 31, 2022

MIAMI NON-COMPETE AGREEMENTS: LEGITIMATE BUSINESS INTERESTS SUPPORTING RESTRICTIVE COVENANTS

By Mavrick Law Firm

In Florida business litigation, a non-compete restriction may not exist solely as a tool to eliminate competition or merely to prevent an employee from working with a competing employer in any capacity. Crom, LLC v. Preload, LLC, 380 F. Supp. 3d 1190 (N.D. Fla. 2019). When a breach-of-contract action is based upon enforcement of a restrictive covenant, the plaintiff must plead and prove specific elements to establish that the restrictive covenant is a valid restraint of trade. Rauch, Weaver, Norfleet, Kurtz & Co., Inc. v. AJP Pine Island Warehouses, Inc., 313 So. 3d 625 (Fla. 4th DCA 2021). “[T]he term ‘restrictive covenants’ includes all contractual restrictions upon competition, such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

“Section 542.335 contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants in Florida based on an ‘unfair competition’ analysis.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). Under Section 542.335, three requirements must be satisfied for a restrictive covenant to be enforceable: (1) the restrictive covenant must be “set forth in writing signed by the person against whom enforcement is sought”; (2) the party seeking to enforce the restrictive covenant “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant”; and (3) the party seeking to enforce the restrictive covenant “shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” § 542.335, Fla. Stat.

Any restrictive covenant that is not supported by a legitimate business interest is unlawful, void, and unenforceable. § 542.335, Fla. Stat. “[T]he determination of whether an activity qualifies as a protected legitimate business interest under [section 542.335] is inherently a factual injury, which is heavily industry – and context-specific.” White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774 (Fla. 2017). “Section 542.335 provides a list of ‘legitimate business interests,’ but it specifically states that the list is not exclusive.” Infinity Home Care, L.L.C. v. Amedisys Holding, LLC, 180 So. 3d 1060 (Fla. 4th DCA 2015). This list includes, but is not limited to the following: trade secrets; valuable confidential business or professional information that otherwise does not qualify as trade secrets; substantial relationships with specific or existing customers, patients, or clients; customer, patient, or client goodwill associated with an ongoing business or professional practice, a specific geographic location, or a specific marketing or trade area; and extraordinary or specialized training. § 542.335, Fla. Stat.

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Published on: August 27, 2022

FORT LAUDERDALE BUSINESS LITIGATION: PROTECTING CUSTOMER LISTS AS TRADE SECRETS

By Mavrick Law Firm

A prevalent issue arising in business litigation throughout Florida is whether the customer list of a business or employer is a protected trade secret under Fl as a trade secret Florida’s Uniform Trade Secret Act (FUTSA). Trade secrets are broadly defined under FUTSA and include information that “derive[s] economic value from not being readily ascertainable by others and must be the subject of reasonable efforts to protect its secrecy.” Del Monte Fresh Produce Co. v. Dole Foods Co., Inc., 136 F. Supp. 2d 1271 (S.D. Fla. 2001). Florida law considers a business’s customer lists and the information contained therein to be trade secrets subject to protection. Variable Annuity Life Ins. Co. v. Dull, No. 09-80113, 2009 WL 3180498 (S.D. Fla. Sept. 25, 2009). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

FUTSA provides that “a complainant is entitled to recover damages for misappropriation.” Fla. Stat. § 688.004(1). In turn, “misappropriation” is defined as either the “(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means, or (b) Disclosure or use of a trade secret of another . . .” Fla. Stat. § 688.002(2) (emphasis added). Thus, a plain reading of the statute makes clear that the wrongful acquisition of a trade secret, even without its actual use, constitutes a violation of FUTSA. See H2Ocean v. Schmitt, 2006 WL 1835974 (N.D. Fla. June 30, 2006). A trade secret is misappropriated if it is either acquired via improper means, or if it is disclosed or used by someone without proper consent.

FUTSA permits injunctive relief to redress any actual or threatened misappropriation of trade secrets. Se. Mech. Servs., Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. Oct. 15, 2008). Florida law protects customer lists from misappropriation through injunctive relief. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Silcox, No. 01- 8800, 2001 WL 1200656 (S.D. Fla. Oct. 4, 2001). To prove a violation of FUTSA, a plaintiff must show that it: (1) possessed secret information and took reasonable steps to protect its secrecy and (2) the secret it possessed was misappropriated, either by one who knew or had reason to know that the secret was improperly obtained or by one who used improper means to obtain it. Del Monte Fresh Produce Co. v. Dole Foods Co., Inc., 136 F. Supp. 2d 1271 (S.D. Fla. 2001). Florida courts have held that “documents containing strategic marketing plans and pricing information have been held to constitute trade secrets under Florida law.” VAES Aero Servs. v. Arroyo, 860 F. Supp. 2d 1349, 1359 (S.D. Fla. 2012).

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