Modern building.Modern office building with facade of glass
Representing Businesses and Business Owners Contact Us Now!
Justia Lawyer Rating
Published on:

Agreements in restraints of trade are generally void unless they comply with the procedures of § 542.335, Florida Statutes.  The statute requires that any agreement restraining trade, such as a non-compete or non-solicitation agreement, be supported by a “legitimate business interest.”  An agreement restraining trade can only be enforced to the extent that the agreement protects this legitimate business interest.  It is therefore critical that litigants be familiar with what qualifies as a “legitimate business interest.”  The Florida Supreme Court has established that referral sources can qualify as something that can be a protectible legitimate business interest. Peter Mavrick is a Miami non-compete attorney and business litigation attorney who has extensive experience with non-compete litigation.

Florida’s non-compete laws are very pro-employer in comparison to most of the United States. Norman D. Bishara, Fifty Ways to Leave Your Employer: Relative Enforcement of Covenants Not to Compete, Trends, and Implications for Employee Mobility Policy, 13 U. Pa. J. Bus. L.751 (Spring 2011).  Nevertheless, Florida courts will not enforce a non-compete agreement unless it strictly complies with the requirements of Florida statutes.

Under Florida law, generally, “[e]very contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.” Fla. Stat. § 542.18.  The exception is found in the express statutory authority found in § 542.335, Florida Statutes.  In pertinent part, § 542.335, Florida Statutes provides:

Published on:

Many sales positions, irrespective of the industry, require employees to establish personal relationships with prospective or existing customers. Sales employees often meet and greet a business’ existing and potential customers, at the business’ expense to ensure current and future business success. These substantial relationships formed by employees may constitute a protected legitimate business interests as constrained by Section 542.335 of the Florida Statutes. Peter Mavrick is a Miami non-compete lawyer who has extensive experience in representing the interests of businesses and business owners.

In the case of Allied Universal Corporation v. Given, 223 So. 3d 1040 (Fla. 3d DCA 2017), Allied Universal Corporation (“Allied”) was a manufacturer and distributor of water treatment chemicals, which sold its products without the southeastern United States. Jeffrey Givens (“Given”) worked a regional sales manager for Allied. Given was responsible for all of Allied’s sales territory north of Florida. Given was trained in Allied’s business practices, confidential and proprietary processes and techniques, as well as proprietary business information on raw material providers, costs, customer lists, prospective customers, marketing and pricing. Given signed a non-disclosure and non-compete agreement with Allied in 2015.

One year later, Given resigned from Allied and went to work for Univar, a competitor.  Univar hired Given to be a strategic account manager. Allied filed a lawsuit against Given and a motion for a preliminary injunction to enforce the terms of the non-compete agreement. In support of its motion, Allied presented evidence of a legitimate business interest in its substantial relationships with its customers, as well as its goodwill associated with the specific geographic location. Allied provided testimony that Given had substantial relationships with specific prospective or existing Allied customers. Given attended several trade meetings to cultivate these contacts.

Published on:

Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), § 501.201 et seq, Florida Statutes, allows a person to sue a business for unfair competition and deceptive or unconscionable business practices.  Although the statute allows a consumer to sue a business for violations of FDUTPA, Florida appellate court decisions have also allowed some businesses to sue other businesses under FDUPTA based on consumer harm. This expansion of FDUTPA is important because it allows aggrieved parties to recover more than their damages. FDUTPA allows the Court to enter an injunction or award attorneys’ fees – types of relief that are sometimes unavailable with other causes of action.  Peter Mavrick is a Miami business litigation attorney who has extensive experience with litigating claims under FDUTPA.

FDUTPA states that “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”  Fla. Stat. § 501.204(1). “An unfair practice ‘offends established public policy’ and … is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’” Stewart Agency, Inc. v. Arrigo Enterprises, Inc., 266 So. 3d 207 (Fla. 4th DCA 2019). “[D]eception occurs if there is a ‘representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.’”  PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773 (Fla. 2003).  “In 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(2).

Florida’s Fourth District Court of Appeal in Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 169 So. 3d 164 (Fla. 4th DCA 2015), held that FDUPTA is not limited to only consumer-plaintiffs.  In Caribbean, a plaintiff-business sued because the Better Business Bureau (“BBB”) portrayed itself as an unbiased business rating service to the public, but in reality, BBB would improve the score of a business if the business became “accredited” – a process requiring significant payment to BBB.  BBB claimed that the plaintiff could not make a FDUTPA claim because the alleged conduct was directed towards BBB’s customers, not plaintiff’s customers.  The appellate court disagreed, finding that non-consumers could bring a FDUTPA claim as long as consumers were harmed as well, because FDUTPA had been amended to replace the word “consumers” with “persons” in § 501.211, Florida Statutes. The appellate court determined that this statutory wording change meant that FDUTPA claims could be brought by parties that were not consumers of the defendant’s goods or services.

Published on:

Florida law can protect companies when their trade secrets are stolen.  For such protections to apply, the confidential information at issue must qualify as a “trade secret” as defined by the Florida Uniform Trade Secrets Act (“FUTSA”).  Fla. Stat. 688.001, et seq.  Generally, something can be a trade secret if derives “independent economic value from not being generally known” and the company makes a reasonable attempt to maintain the secrecy of the information.  Florida case law has helped define what kinds of confidential information qualifies for the statutory requirement of “independent economic value.”  Peter Mavrick is a Fort Lauderdale business litigation attorney and an experienced trade secret attorney.

Trade secrets can exist in many forms.  For example, trade secrets can include confidential business process relating to the production of goods, such as a machine or formula.  Trade secrets can also “relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.”  Summitbridge Nat. Investments LLC v. 1221 Palm Harbor, L.L.C., 67 So. 3d 448, 450 (Fla. 2d DCA 2011).   “Trade secret” is defined by FUTSA as:

Information, including a formula, pattern, compilation, program, device, method, technique, or process that:

Published on:

The Florida Arbitration Code provides businesses with flexibility in resolving their conflicts through arbitration. Arbitration is an immensely popular method of conflict resolution for Florida business litigation and employment litigation.  Arbitration can generally help resolve disputes more quickly than litigation.  However, parties to arbitration sometimes need court intervention via “provisional remedies,” i.e., a court ruling providing interim relief to protect one of the parties in a conflict before the entire dispute can be decided by the arbitrator.  Florida Statutes section 682.031(1) specifically contemplates provisional remedies before an arbitrator is appointed.  The purpose of these provisional remedies is to allow judicial intervention when there is a real emergency that cannot be easily addressed in arbitration due to delays sometimes inherent in the arbitration process.  For example, the arbitration process requires consent of all parties to proceed, and there are sometimes delays in getting the process started especially when one of the parties is uncooperative.  An emergency request for a temporary injunction, by its very nature, is exactly the type of matter that § 682.031(1) was designed to protect. Peter Mavrick is a Miami non-compete attorney and employment attorney who has extensive experience representing the interests of businesses and business owners.

The authority for a court’s ability to adjudicate a Motion for an Emergency for Temporary Injunction is found in § 682.031, Florida Statutes, which provides that:

(1) Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

Published on:

The Florida Legislature has enacted a new statute impacting non-compete agreements for certain specialty physicians, effective June 25, 2019. Pursuant to Florida Statute § 542.336, there is no “legitimate business interest” to support non-compete agreements for physicians licensed under Chapter 458 and 459 of the Florida Statutes, where there is only one entity that employs all of those physician specialists. In other words, if there is medical practice that employs all the radiation oncologists in a county, then a non-compete agreement between that practice and its physicians may be unenforceable. Peter Mavrick is a non-compete lawyer who has extensive experience with non-compete covenant litigation.

Pursuant to Florida Statute § 542.336:

A restrictive covenant entered into with a physician who is licensed under chapter 458 or chapter 459 and who practices a medical specialty in a county wherein one entity employs or contracts with, either directly or through related or affiliated entities, all physicians who practice such specialty in that county is not supported by a legitimate business interest. The Legislature finds that such covenants restrict patient access to physicians, increase costs, and are void and unenforceable under current law. Such restrictive covenants shall remain void and unenforceable for 3 years after the date on which a second entity that employs or contracts with, either directly or through related or affiliated entities, one or more physicians who practice such specialty begins offering such specialty services in that county.

Published on:

A trademark owner can of course sue the business selling counterfeit copies of the trademark owner’s goods, but it may also sue other businesses that sufficiently provide products or services which the counterfeiter uses.  In Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 932 F.3d 1303 (2019), the United States Court of Appeals for the Eleventh Circuit recently confirmed that a landlord can be held liable for the trademark infringement of its tenant when the landlord has actual or constructive knowledge of a tenant’s counterfeiting activities.  Peter Mavrick is a Miami business litigation attorney who represents clients in trademark infringement litigation and other unfair competition litigation.

The Lanham Act allows trademark owners to sue businesses that “use in commerce any reproduction, copy, or […] imitation” of a mark when that use is “likely to cause confusion” with the trademark owner’s mark. 15 U.S.C. § 1114(1)(a); Dieter v. B & H Indus. of S.W. Fla., Inc., 880 F.2d 322 (11th Cir.1989).  In such a situation, a trademark owner can recover the profits that the infringer earned and the damages that the owner suffered due to the infringement.  15 U.S.C. § 1117(a).  When the product being sold has a mark that is “identical” or “substantially indistinguishable” from the trademark owner’s mark, it may be considered as a “counterfeit.”  15 U.S.C. § 1127.  The stakes are much higher for sellers of counterfeit products – a counterfeiter will likely be required to pay attorneys’ fees and either treble damages or statutory damages, which could be up to $2,000,000.  15 U.S.C. 1117(b)-(c).  When a business is selling counterfeits, it is not necessary to prove that the violating business was acting in bad faith.  Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472 (11th Cir. 1991).

A business can also be held liable for the enhanced counterfeiter penalties for supplying goods or services to counterfeiters.  Particularly, a business can be contributing to counterfeiting if it “provid[es] goods or services necessary to the commission of a [counterfeiting], with the intent that the recipient of the goods or services would put the goods or services to use in [counterfeiting].” 15 U.S.C.A. § 1117(b)(2).

Published on:

Any employee claiming illegal sex discrimination must show that an employer took an adverse employment action, such as hiring, firing, promoting, or discipling an employee, and that action was motivated by the sex of the employee.  Avoiding sex discrimination claims is complicated by the fact that the definition of “sex” as it is understood in Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act has steadily changed since its inception more than 50 years ago. The Supreme Court is expected to reinterpret the law as it pertains to applicability of antidiscrimination laws to LGBT employees, which may retroactively affect controversies involving LGBT employees. Peter Mavrick is a Miami employment lawyer who regularly defends businesses and management against employment discrimination accusations, claims, and lawsuits.

The rules governing sex discrimination are based upon the interpretation of civil rights employment law at the time that a case is pending.  This determination by a court often happens years after the alleged conduct that forming the basis of the claim. This means that it is impossible for a Florida employer to definitively know the rules that apply for its employees at any given time, because the rules that govern Florida employers, today, are governed by the law as it will be interpreted in the future.  Florida employers would be wise to be careful and avoid taking an action that could become illegal in the future, particularly in areas of law which are still developing, such as civil rights employment law concerning gay, lesbian, and transgender employees.

When Title VII of the Civil Rights Act was enacted in 1964, the law was generally interpreted so that discrimination on the basis of sex meant that employers must not bar women from applying – a common practice at the time.  Courts have steadily expanded that definition.  For example, in 1986, the Supreme Court affirmed that sexual harassment was illegal sex discrimination in Meritor Savings Bank v. Vinson, 477 US 57 (1986).  Until the decision in Meritor it had been an open question as to whether an employee could even sue for sexual harassment for almost a decade.  In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), when a female executive was denied a promotion because she was allegedly not feminine enough.  The Supreme Court found that this sort of conduct was in reality sex-based discrimination because discrimination based on stereotypes about what a man or a woman should be was, in reality, discrimination on the basis of sex.

Published on:

Employers in litigation against their employees face the challenge of not only dealing with the claims made by those employees, but the threat of being left to pay the attorneys’ fees bill of their opponents. Employers can mitigate that risk, and sometimes even turn the tables and win their attorneys’ fees from their former employees, but it requires a prudent and careful approach.   Peter Mavrick is a Miami employment lawyer and non-compete lawyer who has extensive experience in representing the interests of businesses and business owners.

Florida courts generally follow what is commonly known as the “American Rule,” which means that each party is responsible for its own, respective attorneys’ fees.  There are, however, special exceptions to that rule in the employment law context.  For example, federal law provides a one-sided fee shifting in favor of employees who prevail against their employers under the Fair Labor Standards Act in overtime, minimum wage, and in retaliation cases.  In such cases, the employees “shall” be entitled to an award of their attorneys’ fees incurred in obtaining that recovery of the allegedly owed wages.  29 U.S.C. § 216(b).  By contrast, in the context of non-compete agreements, Florida law is even-handed in allowing the winning side to recover legal expenses from the losing party.  Florida’s non-compete statute allows the prevailing employer or employee to recover legal expenses incurred in securing victory.  Florida’s noncompete statute, § 542.335(k), Florida Statutes, provides in pertinent part: “In the absence of a contractual provision authorizing an award of attorney’s fees and costs to the prevailing party, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant.”  Since the use of the word “may” in the statute has been interpreted by Florida courts to be permissive but not mandatory, most companies include in their noncompete agreements provisions that state that attorneys’ fees shall be awarded to the prevailing party, to make the recovery mandatory for the prevailing party a requirement of the contract with the employee who signs the non-compete contract.

The issue of recovery of legal fees can become complicated in litigation when the parties each have a different basis to claim the right to recover attorneys’ fees from the opposing party.  In McBride v. Legacy Components, LLC, the employee had FLSA claims which provide mandatory recovery of attorneys’ fees to a prevailing pursuant to federal law.  Yet at the same time, the employer claimed that the employee had breached his noncompete agreement and therefore the employer was entitled to recover its own attorneys’ fees as the prevailing party under Florida law.  18-14105, 2019 WL 2538019 (11th Cir. June 20, 2019).  The parties in McBride were ultimately able to come to a partial settlement agreement to resolve their disputes.  The company would stop trying to enforce the noncompete and the employee would stop trying to collect his back wages and agreed to an injunction to prevent him from competing.  The only thing left open was the entitlement to attorneys’ fees.  The company, perhaps believing that the employee was not a prevailing party, agreed to leave the question of the employee’s entitlement to attorneys’ fees to be decided by the court.  However, the company failed to preserve its legal right to recover its legal expense as the prevailing party in the noncompete lawsuit it filed.  The employer could have preserved its legal claim for recovery of its legal expense as the prevailing party, but under the terms of its settlement agreement the employer agreed that only the employee could recover legal expenses.

Published on:

Equitable estoppel is a legal doctrine that essentially prevents one party from taking unfair advantage of another party. Equitable estoppel allows a non-signatory to a contract to compel arbitration of a signatory’s claims against them, if the signatory raised allegations of concerted misconduct by both the non-signatory and one or more of the signatories to the contract. However, this application of equitable estoppel only applies when the signatory alleges substantially interdependent and concerted misconduct by both a non-signatory and one or more of the signatories to the agreement. Peter Mavrick is a Miami business litigation lawyer who represents clients in arbitration proceedings.

In Greene v. Johnson, 2019 WL 3675268 (Fla. 3d DCA 2019) Frederick Greene (“Greene”) and Cameron Grace (“Grace”) incorporated Oak & Cane Co. (“Oak”), which manufactured and sold Oak & Cane American Craft Rum. Greene and Grace also formed Oak & Cane Holdings, LLC (“Holdings”) as a separate entity to own the rum brand’s trademarks and other intellectual property. Jeffrey Johnson (“Johnson”) made two loans to Oak totaling $300,000. Johnson also provided $300,000 to Greene and Grace as an investment in Oak in exchange for seven and a half percent ownership in both Oak and Holdings.

A dispute arose regarding Greene’s business expenses. Johnson sent notices of default to Oak. Subsequently Johnson, Grace, Oak, and Holdings (and other parties) entered into a settlement agreement which gave Johnson full ownership of the assets and intellectual property owned by Oak and Holdings. Greene, however, did not sign this settlement agreement.

Contact Information