“Intentional publication of material will destroy [the material’s] trade secret status.” Precision Automation, Inc. v. Tech. Svcs., Inc., 2009 WL 116135 (D. Or. April 28, 2009). However, “[p]ublication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people [like] potential competitors or other persons to whom the information would have some economic value.” DVD Copy Control Ass’n, Inc. v. Bunner, 116 Cal. App. 4th 241 (Cal. Ct. App. 2004). Accordingly, courts have determined publication of a trade secret to a court’s electronic public docketing system during a lawsuit is not automatically fatal to the information’s trade secret status. The Equal Rights Center v. Lion Gables Residential Trust, 2010 WL 2483613 (D. Md. June 15, 2010). Gaining access to those public systems is not as simple as searching for the information on Google. HMS Holdings Corp. v. Arendt, 18 N.Y.S. 3d 579 (N.Y. Sup. Ct. Albany Cnty. 2015) (“[I]t does not follow that the inadvertent e-filing of an unredacted document on [the electronic filing system] necessarily constitutes a posting to the Internet that renders the information generally known.”). Therefore, an unsealed filing containing trade secret information is a single, non-dispositive, factor to consider in determining whether the document’s contents remain a trade secret. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999). Courts will construe other factors such as whether the filing was intentional, whether the filer took subsequent actions to protect the information from further disclosure, and whether the information was actually viewed or otherwise disseminated to third-parties. Hurry Fam. Revocable Tr., 2023 WL 23805.

Litigants should not be callous about disclosing trade secret information in the court record because court’s will not always be sympathetic to a litigant who intentionally or unintentionally files trade secret information in the court record. Florida has a strong public policy requiring all state, county, and municipal records to be open for personal inspection by any person. Fla. Stat. § 119.01. Therefore, “a failure to identify trade secret information furnished to a state agency [like the judiciary] as putatively exempt from public disclosure effectively destroys any confidential character it might otherwise have enjoyed as a trade secret.” Sepro Corp. v. Fla. Dep’t of Env’t Prot., 839 So. 2d 781 (Fla. 1st DCA 2003).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Litigants seeking an injunction when a restrictive covenant is involved are usually better positioned to obtain that injunction because Florida’s restrictive covenant statute creates a presumption of irreparable harm when a restrictive covenant is violated. Fla. Stat. § 542.335 (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). By contrast, Florida’s trade secret statute does not contain a similar presumption. The trade secret statute simply states “[a]ctual or threatened misappropriation may be enjoined.” Fla. Stat. § 688.003. Therefore, it would appear litigants seeking to enjoin another from misappropriating their trade secret without the benefit of a restrictive convent need to demonstrate the existence of irreparable harm.

Some courts have deviated from the statutory wording by holding that “[i]rreparable harm is presumed where there has been misappropriation of a trade secret.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31 2012). However, this type of holding is generally considered bad law. Castellano Cosm. Surgery Ctr. P.A. v. Rashae Doyle, P.A. 2021 WL 3188432 (M.D. Fla. July 28, 2021) (“[N]either FUTSA nor DTSA contain… statutory presumption[s]…, and the Court may not read one into the statute where the text does not provide one.”). In fact, a close review of ACR Elecs., Inc. v. DME Corp. reveals it is predicated upon Florida restrictive covenant law and copyright law. Therefore, a litigant should be required to prove the existence of irreparable harm to obtain an injunction when a trade secret is at issue and no applicable restrictive covenant exists. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (“Although Florida law contains “a statutory presumption of irreparable injury stemming from the violation of a valid restrictive covenant,” the DTSA does not contain a similar statutory presumption and the Court declines to read a non-existent presumption into a statute.”).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

In Florida, “no temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610. Federal courts have a similar rule. Fed. R. Civ. P. 65 (“The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.”). Therefore, the party seeking a temporary injunction must adequately secure its request for an injunction in case the injunction is deemed improper and harms the opposing party as a result. U.S. Lawns, Inc. v. Landscape Concepts of CT, LLC, 2016 WL 9526340 (M.D. Fla. Oct. 31, 2016). (“Typically, a security bond is required when a court enters an injunction which prevents commercial, money-making activities.”).

But how do courts determine the proper bond amount? The answer is ostensibly simple. Conduct an evidentiary hearing and present evidence demonstrating the anticipated costs and damages an injunction would cause, the adverse party’s chances of overturning the temporary injunction, and other pertinent factors. Longshore Lakes Joint Venture v. Mundy, 616 So. 2d 1047 (Fla. 2d DCA 1993) (explaining the factors to consider when conducting an evidentiary hearing on the injunction bond amount). In applying these factors, some courts have actually determined the bond amount can be $0 or a relatively de minimis amount when the potential harm posed to the non-movant is slight. See Harris v. Hous. Auth. of City of Daytona Beach, 2001 WL 36404273 (M.D. Fla. Apr. 25, 2001) (not requiring a bond where the preliminary injunction would result in minimal potential harm to the defendant); Anchor Title & Escrow, LLC v. Omega Nat’l Title Agency, LLC, 2023 WL 3564942, at *2 (N.D. Fla. Apr. 14, 2023) (requiring $1,000.00 bond). Therefore, a party requesting a significant bond amount should be prepared to present evidence demonstrating the substantial destruction an injunction would cause. One could present evidence of the business’ historic revenues and profits to demonstrate the large sums the business could not generate under an injunction. A business could also present evidence demonstrating the volume and value of customers that would leave the business if an injunction were imposed. There are likely other forms of evidence that could demonstrate the harm an injunction would cause to your business and you should consult counsel to determine what they are.

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.

Irreparable harm exists when an injury is actual or imminent. Northeastern Florida Chapter v. City of Jacksonville, 896 F.2d 1283. The injury cannot be too remote. Litigants sometimes try to circumvent the requirement of proving actual or imminent injury giving rise to irreparable harm by arguing irreparable harm is presumed whenever a trade secret is misappropriated. At first blush, it appears some authority supports this argument. ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012) (“Irreparable harm is presumed where there has been misappropriation of trade secrets.”). However, these authorities are likely incorrect because they rely on Florida’s restrictive covenant statue, which contains an express provision creating a presumption of irreparable harm when a restrictive covenant is breached. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (“Although Florida law contains ‘a statutory presumption of irreparable injury stemming from the violation of a valid restrictive covenant,’ the D[efend ]T[rade ]S[ecrets ]A[ct] does not contain a similar statutory presumption and the Court declines to read a non-existent presumption into a statute.”); Fla. Stat. § 542.335 (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). Trade secret statues do not generally contain a similar provision creating a presumption of irreparable harm when misappropriation occurs. Castellano Cosm. Surgery Ctr., P.A. v. Rashae Doyle, P.A., No. 2021 WL 3188432 (M.D. Fla. July 28, 2021) (“[N]either FUTSA nor DTSA contain… statutory presumption[s]…, and the Court may not read one into the statute where the text does not provide one.”). Therefore, authorities like ACR Elecs., Inc. v. DME Corp. should not carry weight.

Courts should engage in a case-by-case analysis to determine whether irreparable harm exists. Anago Franchising, Inc. v. CHMI, Inc., 2009 WL 5176548 (S.D. Fla. Dec. 21, 2009) (The “Court must engage in the usual case-by-case analysis to determine whether movant confronts imminent irreparable harm warranting the issuance of a preliminary injunction.”). This requires courts to construe the facts of each case to determine whether the evidence demonstrates an existence of actual or imminent harm that is not too remote.

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.

Temporary injunctions are often imposed early in a lawsuit before the parties have a complete opportunity to conduct discovery and obtain all the facts. The imposition of a temporary injunction can often signal that the Plaintiff will ultimately prevail at trial. This is because the standard for obtaining a temporary injunction requires a plaintiff to prove he or she has a substantial likelihood of success on the merits at trial. Seacoast Banking Corp. of Fla. v. Diemer, 2020 WL 3266107 (M.D. Fla. Feb. 3, 2020) (enjoining the defendant because the plaintiff “established a substantial likelihood of success on its trade secret misappropriation claims under the Defend Trade Secrets Act… and Florida Uniform Trade Secrets Act.”).

A lawsuit is not over merely because a court temporarily enjoins a defendant because the defendant can try to dissolve the injunction. Dissolution is permitted when there is a change in circumstance. Thomas v. Osler Med., Inc., 963 So. 2d 896 (Fla. 5th DCA 2007) (“When a motion to dissolve is directed to a temporary injunction entered after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution.”). A change in circumstance can occur when the trade secret at issue is no longer secret. Fla. Stat. § 688.003 (“Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist.”). A change in circumstance can also occur when the plaintiff in a non-compete lawsuit no longer maintains a relationship with a customer that the plaintiff claimed justifies enforcement of the non-compete provision. IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016) (“Plaintiff here cannot read the word ‘substantial’ out of the statute and gain the benefit of an injunction based upon a relationship with [the customer] that was non-exclusive, vague and apparently terminated by [the customer] itself because it was offended or upset by Plaintiff’s decision to stridently confront it about Defendant’s job offer.”).

A defendant can also dissolve a temporary injunction when he or she demonstrates the injunction was based on clear legal error or a misunderstanding of the relevant facts. Planned Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So. 3d 918 (Fla. 2017) (“[D]enial of a motion to modify or dissolve is also an abuse of discretion where a party can demonstrate clear legal error or misapprehension of facts on the part of the trial court.”).  This can occur when the temporary injunction order is based on relief that was never sought or tried by the plaintiff or based on a vague description of the enjoined activity.

Another option at a temporarily enjoined defendant’s disposal is direct appeal. Appellate courts usually permit litigants to directly appeal temporary injunction orders even though they are not considered final orders. Fla. R. App. P. 9.130. An appeal can provide an enjoined defendant with a new judge who may come to the case with a fresh perspective of the facts.

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.

The common law claim of unfair competition can take several forms. American Heritage Life Insurance Company v. Heritage Life Insurance Company, 494 F.2d 3 (5th Cir.1974) (The common law of unfair competition is an “umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters.”). Its precise elements can be somewhat elusive. Treiber v. StorCOMM, Inc., 2005 WL 2012275 (M.D. Fla. August 16, 2005). However, when a litigant advances an unfair competition claim to protect a trade mark, the claim elements of the claim are more certain. A cause for common law unfair competition claim based on a tradename or trademark infringement requires the plaintiff to prove (1) he or she adopted and used a certain the name, mark or symbol in a particular market or trade area to establish good will and reputation; (2) the name, mark or symbol acquired a special significance as the name of the plaintiff in the particular trade area; (3) the name, mark or symbol is inherently distinctive or acquired secondary meaning by actual usage in the trade area; (4) the defendant use or intends to use an identical or confusingly similar name, mark or symbol in the trade area; and (5) defendant’s action caused customer confusion. Am. Bank of Merritt Island v. First Am. Bank & Tr., 455 So. 2d 443 (Fla. 5th DCA Ct. App. 1984). However, in lawsuits that do not involve a trademark, the elements are vaguer. Courts generally hold that the plaintiff must prove a deceptive or fraudulent conduct of a competitor, a likelihood of consumer confusion, and a common pool of customers. Third Party Verification, Inc. v. Signaturelink, Inc., 492 F. Supp. 2d 1314 (M.D. Fla. 2007). The claim focuses on the defendant’s marketing techniques rather than his or her actual copying conduct. B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir. 1971).

Preemption is one reason why unfair competition claims are less common than their statutory claim counterparts. For example, many trade secret statutes contain provisions displacing conflicting tort law, restitutory law, and other state laws that would otherwise provide a civil remedy for trade secret misappropriation. Fla. Stat. § 688.008. This placement includes would-be common law unfair competition claims. Trademark statutes are similar in that unfair competition claims can be preempted unless the plaintiff proves the mark was used in bad faith and the case involves record piracy as opposed to other types of trademark misappropriation. Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367 (Fed. Cir. 2004); Ediciones Musicales Y Representaciones Internacionales, S.A. v. San Martin, 582 F. Supp. 2d 1358 (S.D. Fla. 2008).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

There are two types of verdict forms – general and specific. General verdict forms group different claims or elements into a single question posed to the jury. Specific verdict forms separate the claims or elements into distinct questions. An example of a general verdict form interrogatory is “Is the Defendant liable to the Plaintiff on the Plaintiff’s claim for breach of contract?” An example of a specific verdict form is “Is there a valid contract between the Plaintiff and Defendant,” “Did the Defendant breach the contract,” and “Did the Defendant’s contractual breach (if any) damage the Plaintiff?”

Courts have wide discretion when choosing to use general verdict forms rather than specific verdict forms. Fed. R. Civ. P. 49; Miley v. Oppenheimer & Co., 637 F.2d 318 (5th Cir. 1981). Court have found that discretion to be reaching. Garwood v. Int’l Paper Co., 666 F.2d 217 (5th Cir. Unit B 1982). In fact, the discretion is so broad that a trial court can mandate use of a general verdict form even though both parties agree the use a specific verdict form is better. However, a court’s discretion to use a general verdict form is not absolute. In Jones v. Miles, the court determined the trial court committed reversible error when it refused to give a jury instruction on the defendant’s waiver defense and required the parties to use a general verdict form. 656 F.2d 103 (5th Cir. 1981). The court determined the failure to give the waiver instruction combined with use of a general verdict form prohibited the jury from making an adequate finding on the issue.

Jurisprudence indicates special verdict forms are generally preferred over general verdict forms despite the broad discretion given to the court to decide the matter. Onemata Corp. v. Arefin, No. 23-10070, 2024 WL 3666091 (11th Cir. Aug. 6, 2024) (While special verdicts greatly benefit an appellate court’s review of jury findings… the district court has “wide discretion as to whether to require [a] jury to return a special or general verdict”). This is because a special verdict form can help prevent a jury’s verdict from being overtured. Jones, 656 F.2d at 103 (“Had special verdicts been submitted to the jury, this error could have been localized thereby permitting the valid portions of the original verdict to be salvaged.”).

A court’s decision to use a general verdict form can have significant consequences for the parties because it will likely impact post-trial arguments, how those post-trial arguments are presented to the court, and whether those post-trial arguments can be brought at all.  Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267 (11th Cir. 2021) is a good example. In Fin. Info. Techs., LLC, the plaintiff asserted the defendant misappropriated seven different trade secrets. The court required the use of a general verdict form, and the jury found in favor of the plaintiff. The defendant tried overturning the jury’s verdict post-trial, but was unsuccessful because the plaintiff only had to establish that there was enough evidence to support at least one of the trade secrets at issue. Had a specific verdict form been used, the defendant would have been able to identify the trade secret the jury believed the defendant misappropriated and argued there was insufficient evidence to support the existence of that particular trade secret.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

A common theme throughout most of the misappropriation theories is the existence of improper means. Improper means is defined to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” Fla. Stat. § 688.002. Theft,wiretapping, or and even aerial reconnaissance can also constitute improper means. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020). However, “fair and honest means” of acquiring trade secrets like independent invention, accidental disclosure, or reverse engineering will not generally be considered improper means. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).

The distinction between proper means and improper means can often become blurred when the acquirer of a trade secret improperly uses a mechanism to acquire the secret information that is usually considered proper. Compulife Software, Inc. v. Newman, 111 F.4th 1147 (11th Cir. 2024), provides a good example of this dichotomy. In Compulife Software, Inc., theplaintiff alleged the defendant used internet scraping to improperly acquire a trade secret database of insurance quotes. Internet scraping and related technologies like crawling are generally considered proper means. In fact, much of the modern internet is built on those technologies. However, the court determined the defendant’s use of the scraping technology was improper because he copied the order of Compulife’s copyrighted code and used that code to commit a scraping attack that ultimately allowed the defendant to acquire millions of variable-dependent insurance quotes. The defendant would not have been able to obtain the database information without formatting and ordering the code exactly as Compulife did. The court likened the defendant’s scrapping conduct to surreptitious aerial photography and determined it was improper as a result.

It is not enough to prove the defendants misappropriated the trade secret information at issue in the lawsuit. Instead, the plaintiff usually must prove the defendant used improper means to misappropriate the trade secret. Defendants can improperly misappropriate trade secret information even though they use means that are typically considered proper methods of information gathering.

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.

A trade secret owner usually has to disclose the secret during the course of litigation. Case law generally requires a trade secret plaintiff to identify the secret with reasonable particularity before the court allows the parties to proceed with discovery. AAR Mfg., Inc. v. Matrix Composites, Inc., 98 So. 3d 186 (Fla. 5th DCA 2012) (“In trade secret misappropriation cases, a plaintiff is required to identify with reasonable particularity the trade secrets at issue before proceeding with discovery.”). The law prohibits a trade secret owner from refusing to disclose the secret because the owner made the secret an issue of the lawsuit. Revello Med. Mgmt., Inc. v. Med-Data Infotech USA, Inc., 50 So. 3d 678 (Fla. 2d DCA 2010) (“The plaintiff must, as a threshold matter, establish that the trade secret exists. To do so, it must disclose the information at issue.”); Savino v. Luciano, 92 So. 2d 817 (Fla. 1957) (“And when a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence, we think that he has waived his right to insist, in pretrial discovery proceedings, that the matter is privileged.”). It would generally be unfair to require a defendant to defend against a trade secret without knowing what the trade secret is or why it qualifies as a trade secret.

The requirement to disclose a trade secret during the course of a trade secret lawsuit does not mean the trade secret owner must go without protections. The law usually obligates a court to protect trade secrets to the extent possible. Florida Statute § 688.006 (A “court shall preserve the secrecy of an alleged trade secret by reasonable means.”). Therefore, courts may grant protective orders limiting disclosure to only those individuals necessary to conduct the litigation. For example, a protective order may limit disclosure to the parties, their respective counsel, and the Court. A protective order can also preclude the persons exposed to the secret from disclosing it to anyone else and can limit use of the trade secret to only those needed for the litigation. A court can also hold in camera hearings whereby he or she is the only person capable of reviewing the trade secret. Or a court can require certain court records to be sealed to prevent the public from acquiring the trade secret information through public record searches. These measures are designed to protect the trade secret from further unwanted disclosure while simultaneously facilitating the litigation process. While these protective measures are not infallible, they are frequently used in trade secret litigation and considered to provide adequate protections.

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.

Although the federal trade secret statute covers a broad range of persons that could be involved in a scheme to steal another’s trade secrets, the statute contains several exceptions that provide immunity to certain persons that would otherwise satisfy the criteria of misappropriation. A civil cause of action for trade secret misappropriation cannot be prosecuted against an individual who directly or indirectly discloses the trade secret to a Federal, State, or local government official. 18 U.S.C.A. § 1833. A civil cause of action for trade secret misappropriation also cannot be prosecuted against an individual who discloses trade secret information to an attorney. However, in both cases, the disclosure must be made for the sole purpose of reporting or investigating a suspected violation of law.

In Hart v. Digitalzone Inc., the plaintiff argued the defendant misappropriated a trade secret database full of customer information and sales because the defendant acquired a database through improper means. 2025 WL 1927622 (D. Colo. May 30, 2025). The plaintiff contended that the defendant’s actions constituted misappropriation because his acquisition was not related to a legitimate business purpose. The plaintiff moved for summary judgment and submitted evidence demonstrating the defendant acquired the information because he “thought takin [the plaintiff]’s proprietary information could be of use to him” in a competing enterprise. The defendant opposed summary judgment by arguing his acquisition of the database was for the purpose of disclosing the sales information to his attorney so that his counsel could investigate a wage claim relating to unpaid sales commissions owed by the plaintiff to the defendant. The court denied the plaintiff’s summary judgment request because it could not indisputably prove the defendant took the database for his own purposes as opposed to helping his counsel investigate a potential wage claim.

Hart v. Digitalzone Inc., demonstrates a defendant can defend against a trade secret misappropriation claim by arguing he or she took the information for the sole purpose of providing that information to counsel in furtherance of an investigation. However, the credibility of that position will certainly be tested during the litigation process. The plaintiff will likely present as much evidence as possible to prove the defendant did not have an altruistic purpose, and instead, intended to profit or otherwise benefit from taking the information. Defendants should be prepared to prove otherwise.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Reverse engineering can be a legitimate method to uncover a trade secret when performed using proper means. The reason for this is that most trade secret statutes define trade secret misappropriation to encompass trade secret acquisitions from another “who knows or has reason to know that the trade secret was acquired by improper means.” Fla. Stat. § 688.002. Therefore, the concept of improper means is significant to whether an act of reverse engineering a trade secret was lawful. Improper means under Florida’s Uniform Trade Secret Act includes theft, bribery, misrepresentation, breach or the inducement of a breach of a duty to maintain secrecy, and espionage through electronic or other means. But this is not an exhaustive list. Actions may be considered improper for trade secret misappropriation purposes even if they are not unlawful. E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970) (rejecting the argument “that for an appropriation of trade secrets to be wrongful there must be a trespass, other illegal conduct, or breach of a confidential relationship”). In addition, litigants cannot transform an improper act into a proper act by demonstrating the trade secret owner did not adequately protect its trade secrets because the actions of the trade secret owner are irrelevant to the analysis of improper means. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020). It does not matter that a defendant discovered a method to circumvent the trade secret owner’s protections so long as those protections were reasonable under the circumstances.

The mere possibility that a trade secret could be reversed engineered is not sufficient to avoid liability for trade secret protection. Mallet and Company Inc. v. Lacayo, 16 F.4th 364 (3d Cir. 2021) (“[W]hile reverse engineering is a defense to misappropriation of [a] trade secrets claim, the possibility that a trade secret might be reverse engineered is not a defense … To hold otherwise would fly in the face of commonsense and allow a defendant to escape liability for unlawfully stealing trade secrets as long as someone might—hypothetically and at unknown cost in time, effort, and money—figure out some means to discover them through reverse engineering.”). Therefore, a trade secret defendant must prove he actually and successfully reversed engineered the product using proper means to escape trade secret liability. La Potencia, LLC v. Chandler, 733 F. Supp. 3d 1238 (S.D. Fla. 2024).

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.

A privilege can be waived if a litigant injects the privileged issue into the litigation under the “at issue” doctrine. Coats v. Akerman Senterfitt & Edison, P.A., 940 So. 2d 504 (Fla. 2d DCA 2006) (“[A]ll personal privileges may be waived by the client.”). A privileged matter will be waived under the “at issue” doctrine “when a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence.” Savino v. Luciano, 92 So. 2d 817 (Fla.1957). Merely bringing a lawsuit or defending against a lawsuit does not trigger the at issue doctrine. Instead, the doctrine is triggered when a party “raises a claim that will necessarilyrequire proof” of the privileged material. Jenney v. Airdata Wiman, Inc., 846 So. 2d 664 (Fla. 2d DCA 2003). The at issue doctrine has sweeping effect and can even nullify the sacrosanct attorney client privilege. Coats, 940 So. 2d 504 (analyzing application of the at issue doctrine to a claim of attorney client privilege).

The “at issue” doctrine has been used to force litigants bringing trade secret claims to disclose their trade secrets early in the lawsuit. US Thrillrides, LLC v. Intamin Amusement Rides Int. Corp. Est., 2023 WL 11693750 (M.D. Fla. Dec. 12, 2023) (“Florida courts adjudicating FUTSA cases have said that the ‘plaintiff is required to identify with reasonable particularity the trade secrets at issue before proceeding with discovery.’”). As a result, litigants must describe their trade secrets with reasonable particularity when he or she places those trade secrets at issue in the lawsuit to establish the trade secrets actually exist. Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1322 (S.D. Fla. 2001); Revello Medical Management, Inc. v. Med-Data InfoTech USA, Inc., 50 So. 3d 678 (Fla. 2d DCA 2010). This means, litigants should be prepared to describe their trades secrets in some detail at the beginning of the case and disclose additional details throughout the proceeding.

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.

DTSA contains an express provision extending its applicability to trade secret misappropriation conduct occurring outside the United States. This conduct is often referred to as extraterritorial conduct. However, not all extraterritorial trade secret misappropriation conduct is actionable because Congress limited DTSA’s extraterritorial applicability to two scenarios. In the first scenario, the trade secret offender must be a “natural person who is a citizen or permanent resident alien of the United States, or an organization organized under the laws of the United States or a State or political subdivision thereof”. 18 U.S.C. § 1837. In the second scenario, “an act in furtherance of the offense [had to be] committed in the United States.”

The enforceability of DTSA’s extraterritorial provision was tested about a year ago in a case of first impression in Motorola Sols., Inc. v. Hytera Communications Corp. Ltd. 108 F.4th 458 (7th Cir. 2024). The defendant tried to avoid liability for an act of extraterritorial trade secret misappropriation by arguing DTSA’s extraterritorial provision did not apply to private causes of action. Specifically, the defendant argued the extraterritorial provision was not contained within the section of DTSA providing litigants with a private cause of action for trade secret misappropriation and not contained within the statute’s definition of “misappropriation”. The court rejected the defendant’s arguments and its reasoning is explained below.   

The court began its analysis by determining that the law imposes a presumption against extraterritorial applicability. However, the court also determined the presumption can be rebutted if “the statute gives a clear, affirmative indication that it applies extraterritorially.” The question is not whether the court thinks Congress would have wanted the statute to apply to foreign conduct, but whether Congress affirmatively and unmistakably instructed that the statute will apply extraterritorially. After reviewing DTSA in totality, the court concluded DTSA’s extraterritorial provision applied to all trade secret misappropriation actions, including private causes of action because the extraterritorial provision references “this chapter.” The court construed reference to “this chapter” to mean that the extraterritorial provision applied to the entire DTSA chapter and not just parts of it.

Next, the court had to determine whether the limits Congress placed on DTSA’s extraterritorial provision precluded its applicability to the lawsuit’s facts and circumstances. The court concluded extraterritorial applicability was appropriate because the defendant “advertised, promoted, and marketed products embodying the stolen trade secrets at numerous trade shows in the United States.” As a result, the defendant satisfied the statutory criteria requiring that an act in furtherance of the trade secret misappropriation be committed in the United States.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

The DTSA statute “indicates that its applicability is limited to activity that is actually in, as opposed to activity that merely affects, interstate commerce.” Providence Title Co. v. Truly Title, Inc., 547 F. Supp. 3d 585 (E.D. Tex. 2021). Determining whether activity associated with a trade secret is actually in interstate commerce is not always simple. In KOVA Commercial of Naples, LLC v. Sabin, 2024 WL 2019872 (M.D. Fla. May 7, 2024), the defendant argued the plaintiff’s federal trade secret claim should be dismissed because the plaintiff helps clients buy, sell, lease, and rent real estate exclusively located in Florida. The defendant wanted the court to focus its inquiry on the location where the products or services were offered for sale as opposed to the location of the persons purchasing the products or services. The plaintiff took the opposite position and argued the provision of local services exclusively in Florida to out-of-state clients satisfied the interstate commerce requirement under DTSA. The court agreed with the plaintiff based on federal caselaw from many jurisdictions.

Chief among the authorities Kova relied upon was a United States Supreme Court case called Goldfarb v. Va. State Bar. 421 U.S. 773 (1975). The Supreme Court in Goldfarb determined a real estate transaction is an interstate activity when the funds used to purchase the real estate originate outside the state where the property is located. As a result, real estate title services, even when performed entirely within a state, can constitute an interstate transaction and can satisfy the interstate commerce requirement. McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (1980).

The authorities discussed above demonstrate the importance of considering the location of the trade secret plaintiff’s customers when bringing a DTSA claim. The location of the trade secret plaintiff’s customers will dictate whether the plaintiff has a viable DTSA claim under the interstate commerce requirement.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Trade secret statutes like Florida’s Uniform Trade Secret Act and the Federal Defend Trade Secret Act do not typically define what constitutes reasonable measures of protection under the circumstances. ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011). Notwithstanding, measures may qualify as reasonable under the circumstances even if they are imperfect or ultimately fail to thwart misappropriation. The owner of a trade secret is not required to employ every possible measure to preserve secrecy of the trade secret. Life Spine, Inc. v. Aegis Spine, Inc., 8 F.4th 531 (7th Cir. 2021). Indeed, courts have recognized that many trade secrets would lose their economic value if the confidential measures employed to protect them limited use to a few persons within a company because it would prevent the businesses from using the information in a manner that could effectively generate economic value. WWMAP, LLC v. Birth Your Way Midwifery, 711 F. Supp. 3d 1313 (N.D. Fla. 2024). Therefore, a trade secret plaintiff can establish the existence of his or her trade secret absent proof it kept the trade secret “under lock and key only for the viewing eyes of company officials with the highest security clearance.” Tax Track Sys. Corp. v. New Inv. World, Inc., 478 F.3d 783 (7th Cir. 2007).

The reasonableness of a trade secret plaintiff’s efforts to maintain secrecy will depend on the particular circumstances of each case. Adler v. Loyd, 496 F. Supp. 3d 269 (D.D.C. 2020). Potential secrecy measures can include the following:

• access control policies or measures like passwords, thumbprints, or iris scans that protect computers, documents, and files containing the secrets;

• a safe or locked compartment storing secrets items;

• alarm systems;

• cameras and surveillance systems;

• non-disclosure or confidentiality agreements;

• written and verbal warnings to those who have access to the secrets;

• paper shredders;

• compartmentalization of information the restricts trade secret access to those who “need to know;”

• photocopier restrictions and digital file data transfer restrictions;

• cyber security measures like encryption; and

• security guards.

WWMAP, LLC, 711 F. Supp. 3d 1313. These suggested measures are not exhaustive. Different measures could be used and may offer greater protections depending on the facts and circumstances surrounding the trade secret at issue. In addition, there is no guarantee implementation of some or all of the suggested measures above will adequately protect the trade secret or demonstrate a trade secret plaintiff took reasonable measures under the circumstances to protect his or her trade secret. Court will generally look to different factors when analyzing the reasonableness of the protections employed such as the nature of the trade secret, the economic value of the trade secret relative to the costs of employing various security measures, the probability of misappropriation, the magnitude of the harm that would result from misappropriation, the size of the business and the number of its employees, and the extent of the business’s need to disseminate the secret to exploit its economic value. WWMAP, LLC, 711 F. Supp. 3d 1313. Trade secret owners should keep these factors in mind when considering what trade secret protections to employ and how many protections to use.

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.

“Not everything with commercial value constitutes a trade secret.” Synopsys, Inc. v. Risk Based Sec., Inc., 70 F.4th 759 (4th Cir. 2023). A trade secret’s value must be derived from, and dependent on, the information remaining a secret. Stromback v. New Line Cinema, 384 F.3d 283 (6th Cir. 2004). Therefore, a trade secret owner asserting a claim for trade secret misappropriation must link the value of its information to the information’s secrecy. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (noting that the “economic value” of a trade secret “lies in the competitive advantage over others” that a possessor “enjoys by virtue of its exclusive access to the data”). For example, customer leads can hold economic value from not being generally known to the public. If those leads became generally known, their value would decline because the potential customers would be inundated with rival offers. dmarcian, Inc. v. dmarcian Europe BV, 60 F.4th 119 (4th Cir. 2023) (“[I]f dInc’s list of sales leads was generally known, the value of that list would decline as its members become inundated with rival offers.”).

Courts often analyze the economic value element under a different rubric dispute the body of law discussed above requiring courts to determine whether there is a link between the information’s secrecy and the information’s value. Courts will often look to whether the trade secret owner spent considerable time effort, or expense creating the trade secret. James B. Oswald Co. v. Neate, 98 F.4th 666 (6th Cir. 2024) (The trade secret “certainly must have economic value because Oswald expended considerable money, time, and resources to gather this information, including buying Neate’s book of business for a significant sum, and it spent money helping Neate cultivate, maintain, and grow this customer information.”). The discrepancy between the two methods for determining whether a trade secret derives independent economic value from not being generally known to other persons is not meaningfully discussed in authorities. Therefore, litigants should be prepared to establish value through both methods.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

In PepsiCo., Inc. v. Redmond, 54 F. 3d 1262 (7th Cir.1995), PepsiCo sought to enjoin its former employee from disclosing confidential information about PepsiCo’s plans for specific markets to his new employer, the Quaker Oats Company. The former employee signed a confidentiality agreement, but not a noncompete agreement. PepsiCo argued the former employee would “inevitably disclose” its trade secrets to Quaker because the former employee’s new position required him to provide him substantial input on Quaker’s marketing and other business practices. The court agreed and enjoined the former employee from working at Quaker because it was inevitable that the former employee would disclose PepsiCo’s marketing information to Quaker. PepsiCo., Inc., 54 F. 3d 1262 (“[U]nless Redmond possessed an uncanny ability to compartmentalize information, he would necessarily be making decisions about [Quaker’s products] by relying on his knowledge of [PepsiCo] trade secrets.”).

The inevitable disclosure doctrine is not absolute because some courts have constrained it. In North Carolina, the court applied the inevitable disclosure doctrine but cautioned that its application can only be used when the trade secret at issue is clearly identified and has significant value. Merck & Co., Inc. v. Lyon, 941 F. Supp. 1443 (M.D. N.C. 1996). New York appears to have a similar outlook. EarthWeb, Inc. v. Schlack, 71 F. Supp. 2d 299 (S.D. N.Y. 1999) (“[I]n its purest form, the inevitable disclosure doctrine treads an exceedingly narrow path through judicially disfavored territory. Absent evidence of actual misappropriation by an employee, the doctrine should be applied only in the rarest of cases.”).

Most states rejected the inventible disclosure doctrine. Corp. v. Roche Molecular Sys., 72 F. Supp. 2d 1111 (N.D.Cal.1999) (holding that inevitable disclosure doctrine is insufficient for injunctive relief where there was no evidence of intent to disclose and in light of California’s strong policy of employee mobility); H&R Block Eastern Tax Svcs., Inc. v. Enchura, 122 F. Supp. 2d 1067 (W.D. Mo. 2000) (rejecting assumption that exposure to trade secrets creates inference of inevitable disclosure); Bridgestone/Firestone, Inc. v. Lockhart, 5 F. Supp. 2d 667 (S.D. Ind. 1998) (rejecting inevitable disclosure claim where misappropriation was not seriously threatened). Florida, like most other states, rejects the doctrine too.  Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 148 F. Supp. 2d 1326 (S.D. Fla. 2001) (“However, this case is governed either by Florida or California law, and these states have not adopted the -inevitable disclosure] doctrine nor cited PepsiCo with approval.”). Therefore, trade secret owners must prove actual or threatened misappropriation to obtain an injunction.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

The distinctions above demonstrate the need for plaintiffs claiming trade secret protections over their customer lists to provide sufficient evidence substantiating the qualifications of the customer lists as trade secrets. But how substantial must the evidence be? The Mittenzwei v. Indus. Waste Serv., Inc., 618 So. 2d 328 (Fla. 3d DCA 1993) decision indicates superficial evidence will not suffice. In Mittenzwei, the court thoroughly reviewed the evidence plaintiff submitted in advance of its trade secret customer list claim and determined it was insufficient. “Although evidence disclosed the expense of installing and maintaining [a] computer system [containing the customer list], there was no evidence indicating the method for compiling the customer list” other than generic statements that the list grew as the business grew and was periodically revised.

Plaintiffs trying to prove their customers lists are trade secret should also recognize that a customer list may not qualify as a trade secret if the defendant procured the information on her own or his own. Templeton, 552 So. 2d 288 (Fla. 2d DCA 1989) (holding that the appellant “cannot be precluded from utilizing contacts and expertise gained during his former employment… or even customer lists he himself developed.”). Therefore, a person possessing long-standing relationships with the customers identified within the customer list at issue may be permitted to leverage those relationships even though the customers are part of the trade secret customer list. Mittenzwei, 618 So. 2d 328.

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.  

This article focuses on the statute of limitations for trade secret claims. Litigants only have three years to bring such claims without risking outright dismissal. Fla. Stat. § 688.007; 18 U.S.C § 1836. Accordingly, a litigant must bring the claim within three years after discovering the trade secret misappropriation. This makes the date of discovery important because it triggers running of the statute of limitations. As a broad general matter, a litigant need not be concerned with the statute of limitations in a trade secret action until discovery is made. However, determining when, and if, discovery was made can be complicated.

The plain language of the trade secret statute of limitations indicates discovery is broader than actual discovery. Fla. Stat. § 688.007. The claim must be brought “within 3 years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.” Therefore, a litigant cannot overcome the three-year statute of limitations by simply arguing it did not actually know its trade secrets were misappropriated. The litigant will need to show it did not actually know about the misappropriation and should not have known about the misappropriation had it been reasonably diligent in investigating the matter. However, suspicions alone will not trigger the statute of limitations unless the suspicions are great enough to warrant further investigation. Knights Armament Co. v. Optical Sys. Tech., Inc., 654 F.3d 1179 (11th Cir. 2011) (“Courts have typically found that suspicion and concerns alone are insufficient to start the running of the statute of limitations.”). In Fin. Info. Techs., Inc. v. iControl Sys., USA, LLC, 2018 WL 3391379 (M.D. Fla. June 12, 2018), a plaintiff defeated summary judgment by demonstrating its suspicions of trade secret misappropriation did not create a duty to investigate further and determine whether actual misappropriation occurred. Fin. Info. Techs., Inc., 2018 WL 3391379 (“The record evidence… establishes that Fintech was interested in iControl’s entry into the marketplace as a competitor and may have been suspicious about such activities involving misappropriation… but does not show that a reasonable investigation by Fintech would have produced facts sufficient to confirm this suspicion and justify bringing suit.”). By contrast, in Knights Armament Co. v. Optical Sys. Tech., Inc., 654 F.3d 1179, the court determined the plaintiff knew about the misappropriation and granted summary judgment under the statute of limitations because the plaintiff (1) received a letter from its competitor acknowledging the competitor’s potential use of the trade secret (2) sent a response letter to the competitor seeking assurances its proprietary intellectual property would not be compromised, (3) was not satisfied with the competitor’s response, and (4) did nothing to try disproving the competitor’s unsatisfactory response.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.