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

The Florida Uniform Trade Secrets Act (“FUTSA”) requires courts to take reasonable steps to preserve the secrecy of trade secrets. Fla. Stat. § 688.006. Injunctive relief may be ordered to preserve trade secrets based on actual or threatened misappropriation, as well as, compelling parties to perform specific acts. Fla. Stat. § 688.003.  FUTSA, however, may not be used as a vehicle to restrict competition. In Hatfield v. AutoNation, Inc., 939 So.2d 155 (Fla. 4th DCA 2006), the Florida’s Fourth District Court of Appeal held that FUTSA deals with misappropriation, but not with alleged violations of non-competion agreements. Peter Mavrick is a Fort Lauderdale non-compete lawyer and trade secret lawyer who has extensive experience in trade secret litigation.

An example of this circumstance is the case of Norton v. American LED Technology, Inc., 245 So.3d 968 (Fla. 1st DCA 2018), where American LED Technology, Inc. (“American”) filed a lawsuit against Steve Norton (“Norton”), its former employee.  American filed a motion for a temporary injunction based on an alleged violations of FUTSA and of a non-compete agreement. After a hearing on the motion for temporary injunction, the trial court entered an order granting American’s motion based only on the alleged FUTSA violation. The trial court’s order stated that its findings were “separate and independent from any breach of contract claim” and did not make any other reference to the non-compete agreement. The temporary injunction required, among other things, that Norton could not compete with American. Norton immediately appealed.

American contended that Hatfield v. AutoNation, Inc. demonstrated that courts have discretion to restrain competition when granting injunctive relief under FUTSA. In Hatfield, the appellate court affirmed an order granting a temporary injunction that “included a brief respite from employment as part of the court’s fashioning a remedy that would aid [the plaintiff] in minimizing the potential damage by disclosure of time sensitive trade secrets.”

Published on:

Under Florida and federal law, whether a legal dispute is subject to the requirement that the parties submit to arbitration (what courts refer to as the “arbitrability” of the dispute) depends on what the wording of the arbitration agreement itself states. The parties’ intent as to what issues are to be arbitrated is typically evident from the plain language of the arbitration provision and contract. Courts generally favor arbitration provisions and will try to resolve an ambiguity in the wording of an arbitration provision in favor of arbitration.  Jackson v. Shakespeare Found., Inc., 108 So. 3d 587 (Fla. 2013).  Courts therefore usually apply the broadest possible interpretation of an arbitration provision and contract to determine whether a dispute is subject to arbitration.  Peter Mavrick is a business litigation attorney, practicing in Fort Lauderdale and Miami, who has extensive experience with arbitration proceedings and representing the interests of businesses and business owners.

Contracts containing arbitration clauses often limit the scope of “arbitrable issues” (i.e., the types of disputes encompassed in the arbitration provision) to those that are “related to” or “arise from” the contract. There are cases where courts analyzed the causes of action alleged in the complaint to determine whether the controversy at issue was arbitrable under the contract. For example, in Xerox Corp. v. Smartech Document Mgmt. Inc., 979 So.2d 957 (Fla. 3d DCA 2007), Miami’s Third District Court of Appeal held that the causes of action of defamation, intentional infliction of emotional distress, injunctive relief, respondeat superior (vicarious liability for agent’s actions), and intentional interference with an advantageous business relationship—constituted a “Covered Dispute” under the contract.  The appellate court reasoned that each cause of action arose out of or was related to the parties’ relationship under the parties’ contract.  In the case of BKD Twenty-One Mgmt. Co., Inc. v. Delsordo, 127 So.3d 527 (Fla. 4th DCA 2012), Florida’s Fourth District Court of Appeal determined that the arbitration provision in the subject lease agreement applied to the tenant’s action for negligence against the retirement facility.  The appellate court in Delsordo based is decision on the court’s interpretation of the word “Establishment” used in the parties’ contract.  The appellate court held that the negligence claims based on a trip and fall on the defendants’ premises arose out of or related to the defendants’ “Establishment.”

This type of analysis is unnecessary when an arbitration provision is so broad as to encompass all potential claims.  For example, in the federal appellate decision Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204 (11th Cir. 2011), the United States Court of Appeals for the Eleventh Circuit considered a broadly worded contract stating that the parties’ dispute had to relate to, arise from, or be connected with employee’s crew agreement or the employment services that she performed for the cruise line.  A broadly worded arbitration covenant will sweep most controversies between the parties into private arbitration.

Published on:

An undefined term in a non-compete agreement creates an ambiguity in the contract, and therefore uncertainty in a court’s interpretation of the term. When a term is left undefined, Florida law requires courts to give the term its ordinary meaning.  Although the terms “compete” and “line of business” may seem self-explanatory, the context in which they are to apply may require further definition.  Peter Mavrick is a Miami non-compete attorney and business litigation attorney who has substantial experience with non-compete litigation, including injunction proceedings.

In the case of Circuitronix, LLC v. Kapoor, 748 Fed.Appx. 242 (11th Cir. 2018), Sunny Kapoor (“Kapoor”) was the Assistant CEO of Circuitronix, LLC (“Circuitronix”) from October 2012 until his termination in March 2015. Kapoor’s employment was subject to a series of employment agreements. After his termination, Circuitronix filed a lawsuit against Kapoor and alleged that he violated the terms of the parties’ non-compete agreement. Kapoor counterclaimed against employer and Rishi Kukreja (“Kukreja”), its chief executive officer, and alleged breach of employment contract, unlawful retaliation, civil theft and unpaid wages.

The parties resolved their claims in mediation and on December 1, 2015 signed a mediated settlement agreement (“Settlement Agreement”). The Settlement Agreement incorporated the Mediated Settlement Term Sheet by reference and prohibited Kapoor from competing “with Circuitronix, anywhere in the world, for a period of 3 years starting from September 15, 2015.” The non-compete agreement explicitly applied “to all lines of business in which Circuitronix engaged” during the time of Kapoor’s employment. The Settlement Agreement was formally approved by the district court two days later.

Published on:

Certain types of employee complaints to an employer qualify as “protected activity.”  An employer that responds to a protected complaint by terminating, demoting, or otherwise taking an adverse employment action against the employee risks being sued for retaliation under Title VII of the Civil Rights Act of 1964 or the Florida Civil Rights Act of 1992.  For a complaint to qualify as protected activity, the employee must have a good faith and objectively reasonable belief that the complained of conduct was in fact unlawful discrimination.  Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

To establish a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964, an allegedly aggrieved employee must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068 (11th Cir.1995)

The conduct complained of need not actually constitute unlawful discrimination to qualify as “protected activity.”  An employee’s erroneous complaint concerning lawful conduct can still constitute protected activity when that employee has “a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir.1997).  However, it is insufficient for a plaintiff “to allege his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.” Id. The reasonableness of a plaintiff’s belief that his or her employer “engaged in an unlawful employment practice must be measured against existing substantive law.” Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir.2010).

Published on:

For a business to be to protect its confidential information as a protectable trade secrets under the Florida Uniform Trade Secret Act, the business must preserve the secrecy of its confidential information.  There are no hard and fast rules that must be followed for a business to protect its confidential information as a trade secret.  “No single ‘step’ taken to maintain the secrecy of the information secrecy will be determinative; but if the claimant can establish a consistent approach to keeping the information ‘secret’ it will go along way to satisfying this element of the statutory definition.” Gary S. Gaffney and Maria E. Ellison, A Primer on Florida Trade Secret Law: Unlocking the “Secrets” to “Trade Secret” Litigation, 11 U. Miami Bus. L. Rev. 1 (2003). Peter Mavrick is a Fort Lauderdale trade secret attorney, non-compete attorney, and business litigation attorney who represents businesses in trade secret litigation, non-compete agreement litigation, and other business litigation.

A recurring issue in non-compete covenant litigation is whether a trade secret exists and justifies the restrictive covenant.  Under Florida Statutes § 542.335(b)2), a non-compete can be based on a legitimate business interest of a trade secret.  If a trade secret is a proven legitimate business interest under Florida’s non-compete statute, the consequences are severe for the opposing party due to the expanded time-frame the statute allows to enforce a non-compete.  Section 542.335(e), Florida Statutes, provides that “In determining the reasonableness in time of a postterm restictive covenant predicated upon the protection of trade secrets, a court shall presume reasonable in time any restraint 5 years or less and shall presume unreasonsble in time any restraint of more than 10 years.  All such presumtions shall be rebuttable presumptions.”  Because Florida law accords protection to genuine trade secrets and because of the potentially lengthy period of a non-compete based on trade secrets, parties in litigation will often scrutinize whether the alleged trade secrets were closely guarded to ensure and maintain their status as protectible trade secrets.

Trade secrets are defined under § 688.002(4), Florida Statutes, as:

Published on:

It is a fundamental premise that ownership of a corporation is evidenced by stock certificates.  However, this is not always the case with small, closely held corporations that do not sell stock on a market.  Sometimes those corporations do not issue certificates.  To accommodate that realty, Florida law allows for the equitable or beneficial ownership of stocks.  Indeed, Florida statute section 607.0626 allows issuance of shares of stock without certificates, provided that the articles of incorporation and bylaws do not provide otherwise.  The law regarding equitable and beneficial ownership of stocks, however, is grounded in case law.  Peter Mavrick is a Fort Lauderdale business litigation attorney who has extensive experience in representing the interests of businesses and business owners.

This concept of stock ownership is an important factor when someone believes that he or she has an ownership interest in a corporation but was not issued shares, and he or she wants to sue the corporation.   By showing that the person is an equitable owner of stock, that person may acquire standing to sue the corporation in a derivative action or an action to dissolve the corporation.  As Florida’s Third District Court of Appeal explained in Kaplus v. First Continental Corporation, 711 So. 2d 108 (Fla. 3d DCA 1998), “Florida courts have, to date, apparently aligned themselves with these jurisdictions which recognize that strict record ownership is not necessary and that holders of equitable or beneficial interest in shares have standing to sue.”

The determination of whether someone owns stock that was not transferred by certificate is an issue of fact and can become quite complicated.  An example is Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139 (Fla. 4th DCA 2008).  The company Acoustic Innovations was owned by Mr. Miller.  One of his employees was Mr. Schafer.  While Mr. Schafer was an employee of Acoustic Innovations, Mr. Miller sent him a letter promising to give him thirty percent interest in the corporation upon sale or merger of the company.  Mr. Schafer signed the letter.  Mr. Miller later terminated Mr. Schafer’s employment and paid him a severance that Mr. Schafer deemed insufficient, due to the letter agreement.

Published on:

Protection of trade secrets and proprietary information from a business’ competitors can be a critical part of owning a company. An injunction may become necessary to stop a competing company from possessing or using those trade secrets for their own benefit. The injunction, however, must be specific enough for the enjoined party to understand what they are no longer allowed to do. Peter Mavrick is a Fort Lauderdale trade secret attorney who represents businesses in trade secret litigation and other business litigation.

In American Red Cross v. Palm Beach Blood Bank, Inc., 143 F. 3d 1407 (11th Cir. 1998), Palm Beach Blood Bank, Inc. (“Palm Beach”) opened a branch in Miami. Palm Beach hired a person for the Miami Branch, who previously worked for the American Red Cross (“Red Cross”). Palm Beach and Red Cross competed for sponsors and donors. The former employee took a donor list from Red Cross and provided it to Palm Beach.  Palm Beach then contacted the persons on Red Cross’ list to recruit its blood donors.

Red Cross filed a lawsuit against Palm Beach and alleged that its donor lists were trade secrets that Palm Beach illegally misappropriated.  The district court granted Red Cross’ motion for a temporary restraining order (“TRO”) against Palm Beach. The TRO prohibited Palm Beach from, among other things, “soliciting donations from any Red Cross donor” or “in any way adversely affecting Red Cross’s reputation or goodwill.” The district court held evidentiary hearings on Red Cross’s motion to convert the TRO into a preliminary injunction. Palm Beach moved to modify the TRO to allow Palm Beach to accept donations from persons whom it had not solicited from any Red Cross list. The district court denied the motion to modify the TRO, without explanation. The district court entered a broad preliminary injunction against Palm Beach.

Published on:

It is common in lawsuits regarding non-compete agreements for plaintiffs to sue the new enterprise started by the former employee or the company that hires the former employee, i.e. a third party.  Plaintiffs seek to enjoin these third parties from aiding and abetting the violation of the non-compete, as well as, hold them liable for damages, attorney’s fees and costs. Section 542.335(1)(k) states that 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 non-compete agreement. Third parties who aid and abet former employees in violation of a non-compete agreement, however, may not be subject to an award attorney’s fees and costs under the statute. Although the third parties may have aided and abetted the former employee in violating the non-compete agreement, they are not parties to the contract. As such there may not be legal authority to support an award of attorney’s fees against the third parties. Peter Mavrick is a Fort Lauderdale non-compete attorney and business litigation attorney who has substantial experience with non-compete litigation, including injunction proceedings.

An example of this circumstance is the case of Bauer v. DILIB, Inc., 16 So. 3d 318, 319–22 (Fla. 4th DCA 2009), where DILIB, INC., d/b/a Incredibly Edible Delites (hereinafter “DILIB”) and two employees entered into non-compete agreements which stated, in pertinent part, that for two years after the employees’ last date of employment, they would not compete with the DILIB’s business. The employees later terminated their employment and were hired a few months later by Denise Bauer (“Bauer”), a competitor.

DILIB filed a lawsuit against the former employees and Bauer. DILIB also filed a motion for a temporary injunction to prevent the employees from violating the non-compete agreement, and to enjoin Bauer from aiding and abetting their violation. Additionally, DILIB pled entitlement to recover its attorney’s fees and costs from the two employees and Bauer. Section 542.335(1)(k) of the Florida Statutes provides in pertinent part, that, “[i]n 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.”

Published on:

While courts may allow employees to bring claims of “reverse discrimination” concerning sex, race, or religion, an employee may not bring a claim of “reverse” age discrimination under current interpretations of the Federal Age Discrimination in Employment Act (“ADEA”) or the Florida Civil Rights Act (“FCRA”).  The different way that age is treated when contrasted against other protected classes is not directly found in the ADEA or the FCRA, but rather in the cases interpreting these anti-discrimination statutes.  Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

The term “reverse discrimination” refers to a circumstance where a member of a class of persons who have historically not been discriminated against claims to have suffered discrimination because of his or her membership in that class.  Examples of reverse discrimination would include a Caucasian person claiming racial discrimination, a Christian claiming religious discrimination, or a man claiming sex discrimination.  Generally, Federal and Florida courts allow claims of reverse discrimination in most contexts. See, for example, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (“Title VII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” 42 U.S.C. s 2000e-2(a)(1) (statutory terms are not limited to discrimination against members of any particular race); Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991) (circumstance where white male police officers sued claiming that department diversity policies illegally discriminated against them).  This symmetry is not so for claims of age discrimination.  The relatively young may not lawfully claim that an employer has discriminated against them in favor of the relatively old under current interpretations of the ADEA or FCRA.

By statutory wording, both the ADEA and FCRA appear to limit discrimination on the basis of age, regardless of whether the claimant is relatively old or relatively young.  The ADEA states that:

Published on:

Businesses often prefer to resolve their disputes by arbitration rather than litigation.  When two parties who have entered into an agreement to arbitrate their disputes, that agreement to arbitrate is usually enforceable by either party.  Frequently, one party may renege on its agreement to arbitrate for strategic reasons and attempt to avoid arbitrating the dispute in Court.  The Federal Arbitration Act (“FAA”) and its Florida counterpart, the Florida Revised Uniform Arbitration Act (“FRUAA”), have been interpreted to give preferred treatment to agreements to arbitrate.  As a result, it is particularly difficult for litigants to avoid arbitration.  Peter Mavrick is a Fort Lauderdale business litigation attorney who has extensive experience in representing the interests of businesses and business owners in arbitration.

“An agreement to arbitrate is an agreement to proceed under arbitration and not under court rules.” Suarez–Valdez v. Shearson/American Express, Inc., 845 F.2d 950 (11th Cir. 1988).  Florida businesses have strong incentives to enforce agreements to arbitrate.  Arbitration can be swifter and less costly than traditional litigation.  Parties in arbitration generally have less power to seek potentially costly and invasive discovery on the other party. “[A] party’s ability to take depositions and to propound discovery requests is generally much more limited in arbitration than it is under the Florida or the federal civil rules.”  Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682 (Fla. 2d DCA 2009).

Whether a particular dispute should be arbitrated depends on what the parties agreed to arbitrate.  “The intent of the parties to a contract, as manifested in the plain language of the arbitration provision and contract itself, determines whether a dispute is subject to arbitration.  Courts generally favor such provisions, and will try to resolve an ambiguity in an arbitration provision in favor of arbitration.”  Jackson v. Shakespeare Found., Inc., 108 So. 3d 587 (Fla. 2013).

Contact Information