FORT LAUDERDALE BUSINESS LITIGATION: ALTERNATIVE TRADE SECRET MISAPPROPRIATION CLAIM

Florida’s Deceptive and Unfair Trade Practices Act, or FDUTPA for short, is a broad statute applying to many different transactions and scenarios. FDUTPA declares all unfair or deceptive acts or practices committed in the conduct of any trade or commerce unlawful. Fla. Stat. § 501.204. A trade practice is considered unfair under FDUTPA if it offends established public policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Suris v. Gilmore Liquidating, Inc., 651 So.2d 1282 (Fla. 3d DCA 1995). The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent 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.

Any person suffering a loss resulting from an unfair or deceptive act or practice has a private cause of action to sue under FDUTPA. Fla. Stat. § 501.211. This includes trade secret owners. Courts have determined the scope of FDUTPA is broad enough to encompass lawsuits regarding trade secret misappropriation. Cayman Sec. Clearing & Trading Ltd. v. Frankel, 2019 WL 194251 (M.D. Fla. Jan. 15, 2019) (holding that “even if [the defendant] never entered noncompete or non-solicitation agreements with [the] Plaintiffs, it is still possible he could have violated the FDUTPA if he used [the] Plaintiffs’ confidential information or trade secrets”). These courts have reasoned that the remedies provided under FDUTPA are “in addition to” other remedies available under state or local law. Fla. Stat. § 501.213 (“The remedies of this part are in addition to remedies otherwise available for the same conduct under state or local law.”).

Defendants challenging the application of FDUTPA to trade secret misappropriation claims often tried arguing that FDUTPA only applied to consumers in the marketplace. While that used to be that state of the law, FDUPTA was amended to replace the word “consumer” with the word “person.” The current version of FDUTPA provides that “[i]n any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney’s fees and court costs.” Fla. Stat. § 501.211. The amendment demonstrates the Florida Legislature’s intent to allow a broader base of complainants who suffered injury as a result of unfair or deceptive trade practices. Advanced Protection Tech., Inc. v. Square D Co., 390 F.Supp.2d 1155 (M.D. Fla. 2005). Therefore, challenges to the application of FDUPTA to trade secret claims based on consumer nonparticipation should fail. Niles Audio Corp. v. OEM Systems Co., Inc., 174 F.Supp.2d 1315 (S.D. Fla. 2001) (concluding that legislature’s replacement of the word “consumer” with the word “person” Florida Statute § 501.211 was intended to make the damages remedy available to anyone aggrieved by violation of statute).

Plaintiffs should consider asserting a FDUPTA claim in conjunction with a trade secret misappropriation claim because FDUPTA may offer plaintiffs a better opportunity to recover attorney’s fees. Under Florida’s Uniform Trade Secret Act, attorney’s fees are only permitted when bad faith exists or when the misappropriation was willful and malicious. Fla. Stat. § 688.005. Conversely, under FDUPTA, a party “may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.” Fla. Stat. § 501.2105. FDUPTA therefore provides a greater possibility to recover attorney’s fees because bad faith or willful and malicious conduct does not need to be established under FDUPTA.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent 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.