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We previously wrote about two potential laws that might limit enforceability of non-compete agreements. The first law is a proposed Florida statute that would constrain or prohibit restrictive covenants for certain medical professionals. The second law is a Federal Trade Commission rule that would ban most non-compete agreements as unfair competition. Congress is proposing a similar law that would ban most non-compete agreements, called the Workforce Mobility Act (the Act). The relevant wording of the Act, in its present form, is as follows: “…No person shall enter into, enforce, or attempt to enforce a noncompete agreement with any individual who is employed by, or performs work under contract with, such person with respect to the activities of such person in or affecting commerce.  S. 220, 118th Cong. § 3 (2023-2024). Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm  Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Public agencies and private citizens can enforce the Act. If passed, the Act would make any violation an unlawful unfair and deceptive act or practice under 15 USC § 57a. Id. The Federal Trade Commission, the United States Department of Labor, and the States of the United States would each have authority to enforce the law. Id. Individuals will also have a private cause of action to enforce the Act. Id. They can sue to recover damages (if any) along with attorney’s fees if they are the prevailing party. Id.

The sweeping nature of the Act’s wording will likely have broad effect throughout interstate commerce. However, the Act does not ban all non-compete agreements outright because the definition of “non-compete agreements” is somewhat narrow. Congress defined non-compete agreements as:

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Nationwide, the body of law regulating non-compete agreements (including non-solicitation covenants, non-circumvention covenants, covenants barring poaching of employees) has been mainly regulated by state statutes as well as court decisions in state and federal courts.  Federal law has generally stayed out of the regulation of restrictive covenants.  About a year ago, the Federal Trade Commission (FTC), a federal agency regulating commerce and competition law, issued a proposed rule that would ban most non-compete agreements as unfair competition.  If promulgated, such a rule would have a significant impact on many businesses and their employees.  At this point, the proposed rule is not the law and awaits a final decision.  The wording of the proposed draft of the rule is as follows: “It is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause. To comply with paragraph (a) of this section,… an employer that entered into a non-compete clause with a worker prior to the compliance date must rescind the non-compete clause no later than the compliance date.  Proposed CFR § 910.2. The FTC accepted comment concerning the proposed rule through April 2023, and is expected to make a final decision about the proposed rule sometime in April 2024.  Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm  Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The effects of the FTC’s proposed rule are probably far reaching based on the FTC’s definition of “noncompete clause.” The FTC defines a noncomplete clause to mean “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”  Proposed CFR § 910.1. This definition includes de facto clauses prohibiting workers from obtaining employment or operating a business after the conclusion of the worker’s employment with an employer. Id. One example of a de facto clause is an overly broad non-disclosure agreement that precludes a former employee from working in the same field as the former employer.

The FTC similarly defined worker broadly. Worker encompasses any natural person who works for an employer. Id. It does not matter whether the worker was paid or unpaid. Id. It does not matter whether the worker was classified as an employee or independent contractor. Id. Any worker qualifies under the proposed rule. Therefore, most, if not all, employment related relationships will fall within the ambit of “worker” for purposes of the proposed rule.

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The Florida restrictive covenant statute allows employers to restrain employees from working for a competitor so long as the non-competition agreement is supported by a legitimate business interest and is reasonable in time, area, and line of business. Fla. Stat. 542.335. Employees that enter contracts containing non-compete agreements can be prohibited from working for a similar business within a competitive geographic area. For example, doctors that sign employment agreements with the hospitals they work for, can be prohibited from treating their patients after leaving that hospital. See, e.g.,  Ansaarie v. First Coast Cardiovascular Inst., P.A., 252 So. 3d 287 (Fla. 1st DCA 2018) (enjoining a doctor from seeing his former patients associated with the hospital he used to work for). This is true even when patients request treatment from the departing doctor. Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm  Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Florida’s Legislature recognized that the state’s strong non-compete laws can prevent patient access to medical treatment about five years ago in 2019. This is especially true in rural areas where choice of medical care providers is limited. Therefore, Florida’s legislature invalided non-compete contracts in certain circumstances relating to licensed physicians. The statute provides that a “restrictive covenant entered into with a physician… who practices a medical specialty in a county wherein one entity employs or contracts with,… all physicians who practice such specialty in that county is” invalid. Fla. Stat. 542.336. The Legislature’s invalidation is however limited to (1) certain physicians (2) possessing a specialty and (3) who are employed by a single employer in a single county. Id. Therefore, many Florida doctors are still prohibited from treating patients even when the patient wants treatment from that particular doctor.

It seems Florida’s Legislature understands that the limitations of its 2019 modification are insufficient to enable adequate medical staffing in Florida because the Legislature may be preparing to expand non-compete invalidation. Florida’s House and Senate introduced similar bills that would expand the prohibition on non-competes in the medical space to physicians practicing medicine within any geographic area for any period of time. The proposed language of the new statute from the House is as follows:

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Some employers have confronted the situation where employees have taken corporate trade secrets to use in competition against their former employer, but the employees had not signed a non-compete agreement.  Under Florida law, however, the fact that the former employees did not sign a non-compete agreement is not dispositive concerning whether the business may enforce its trade secrets in court against the former employees and the competing business.  Important precedent from Florida’s Third District Court of Appeal in Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982), held that “[t]he law will import into every contract of employment a prohibition against the use of a trade secret by the employee for his own benefit, to the detriment of his employer, if the secret was acquired by the employee in the course of his employment.”  Florida’s Uniform Trade Secrets Act, at Florida Statutes Section 688.003(1), states in pertinent part that, “[a]ctual or threatened misappropriation may be enjoined.”  In this vein, All Leisure Holidays Ltd. v. Novello, 202 WL 5832365 (S.D. Fla. Nov. 27, 2012), the United States District Court for the Southern District of Florida held that a non-compete agreement was not necessary to enter a temporary restraining order against a former  employee for misappropriation of trade secrets.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Florida law defines the terms “trade secret” to mean information that “derive[s] economic value from not being readily ascertainable by others and [is] the subject of reasonable efforts to protect its secrecy.”  American Red Cross v. Palm Beach Blood Bank, 143 F.3d 1407 (11th Cir. 1998).  This definition includes as trade secrets a “list of customers,” so long as the “owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner….” Florida Statutes Section 812.081.  The U.S. District Court for the Southern District of Florida in Merrill Lynch, Pierce, Fenner & Smith v. Hagerty, 808 F.Supp. 1555 (S.D. Fla. 1992, explained that “[r]egardless of who compiled the customer list, however, it is clearly protected under [Florida law].”

In unfair competition cases, one significant source of litigation has emanated from employee theft of pricing information to use in competition against the former employer.  Documents containing pricing information have been held to constitute trade secrets under Florida law.  For example, in Sethcot Collection, Inc. v. Drbul, 669 So.2d 1076 (Fla. 3d DCA 1996), the appellate court determined that a confidential active customer list, containing a detailed purchasing history for each entity, qualified as a trade secret entitled to protection by means of an injunction.

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Under Florida law, courts evaluate the enforceability of non-compete agreements based on Florida Statutes Section 542.335 as well as case law interpreting this statute.  Under Section 542.335(1)(b), Florida Statutes, to establish that the contract restricting competition is itself lawful and enforceable, a party must simply “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.”  Once the party, which is typically a business, has established that the restraint is reasonably necessary to protect the legitimate business interest, the burden shifts to party opposing enforcement of the contract to establish that it is overbroad or otherwise not reasonably necessary.  Balasco v. Gulf Auto Holding, Inc., 707 So.2d 858 (Fla. 2d DCA 1998).   Florida law accords substantially more deference to the scope and duration of a non-compete agreement in the context of sale of a business or its asserts, as distinct from a non-compete agreement solely concerning an employment relationship.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

For example, in Avalon Legal Information Services, Inc. v. Keating, 110 So.3d 75 (Fla. 5th DCA 2013), Florida’s Fifth District Court of Appeal decided the proper scope of a non-compete/non-solicitation covenant arising from the purchase of a civil service of process consulting business from a paralegal that sold the business.  The seller of the business (the paralegal) argued to the court that the non-compete/non-solicitation agreement did not protect legitimate business interests in “substantial relationships with existing and prospective clients” and “client goodwill.”  The seller argued there were no “substantial relationships” as part of the business sale because the seller “enjoyed long-standing relationships” with the buyer’s clients.  The appellate court was unpersuaded and ruled against the seller of the business, stating in pertinent part that the seller’s “argument ignores the fact that Keating paid Schneider $200,000 for the consulting business, which included Schneider’s client relationships and goodwill.  Because the purchaser of the assets and goodwill of a business has a legitimate business interest in preventing the seller from servicing former clients, the trial court did not err in finding the non-compete/non-solicitation covenant was supported by a legitimate business interest.”

Although the Avalon decision determined the restrictive covenant was enforceable, the appellate court also determined that the trial court’s injunction was overbroad.  “[T]he restrictive covenant prohibits Avalon from competing for and soliciting Keating’s clients.  The court’s order is overly broad to the extent it enjoined Avalon and Schneider from competing for ‘any sheriffs in Florida’ in the area of civil service consulting, irrespective of whether they were a client of Keating.  The trial court should modify the injunction allow Avalon and Schneider to compete for the remaining sheriffs’ offices with which Keating shares no substantial relationship.”

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Florida’s non-compete statute, Section 542.335, Florida Statutes, accords broad protection in favor of a business seeking to prevent former employees from competing with the business via goodwill with customers with whom the former employee dealt during his employment.  In this regard, section 542.335(1)(b)(3) expressly considers a “legitimate business interest” to include “[s]ubstantial relationships with specific prospective or existing customers, patients, or clients.”  Under Florida law, however, in the absence of a non-soliciation agreement or non-compete agreement, a former employee cannot be precluded from using contacts and expertise he gained from employment with his former employer.   Businesses have sometimes tried to bar former employees from competing for customers when the employee never even signed a non-compete or non-soliciation agreement.  In such cases, businesses have argued that the customers are part of a “trade secret” and are confidential.  Florida’s Second District Court of Appeal, in Templeton v. Creative Loafing Tampa, Inc., 552 So.2d 288 (Fla. 2d DCA 1989), held in pertinent part that: “The only arguably secret information on the advertiser list was the contact person.  However, the testimony shows that appellant knows all of these persons on a first name basis as a result of his experience working for Music and that he did not need a secret list to enable him to ascertain their identity.  Appellant cannot be precluded from utilizing contacts and expertise gained during his former employment.”  Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm  Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Florida appellate courts distinguish between customer lists that are the product of great expense and effort, that are distillations of larger lists, or include information that is not available from public sources.  Under appropriate circumstances, such customer lists can qualify as trade secrets.  However, an employee’s mental knowledge of customer relationships, as per prior employment, generally will not qualify for protection as a trade secret.  Precedent from the Supreme Court of Florida, in Pure Foods, Inc. v. Sir Sirloin, Inc., 84 So.2d 51 (Fla. 1956), stated in pertinent part: “We do not think the circumstances in this case justify further exploration of the law on that subject or a condemnation of appellee’s erstwhile employees because they undertook to sell to customers whom they had come to know during their former employment.  Both corporations were wholesalers and their products were sold to retailers of food such as restaurants and ‘drive-ins.’  Certainly, the names of such concerns were easily obtainable from classified telephone directories and like sources, and surely the employees of appellee who became owners of an interest in the appellant-corporation could not be precluded from attempting to sell all customers whom they had known in their former positions.”  Florida’s Fifth District Court of Appeal, in Fish v. Adams 401 So.2d 843 (Fla. 5th DCA 1981), has taken these legal principles a step further, explaining that “an employee may take with him a customer list he himself has developed.”  How broadly courts will interpret this wording from Fish v. Adams will likely depend on the factual details, including how intricate and valuable was the customer list the employee took and used after leaving his employment with the business.  It is important to emphasize that when the employer-employee relationship does not include a restrictive covenant barring competition or solicitation, it can be an uphill battle to bar an employee’s dealing with his former employer’s customers.

Peter Mavrick is a Miami business litigation lawyer, and represents 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.

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The plain terms of a contract control the parties’ course of conduct for all matters subject to that contract’s terms. See Maher v. Schumacher, 605 So.2d 481 (Fla. 3d DCA 1992) (holding that the plain meaning of the contractual language used by the parties controls). The Court is prohibited from rewriting contract terms. Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) (“It is well established that a court cannot rewrite the clear and unambiguous terms of a voluntary contract.”). However, non-complete law contains a powerful exception allowing courts to disregard the well- pronounced prohibition against rewriting contracts. Courts can “blue-pencil” (i.e., Judicially modify) provisions of non-compete agreements when they do not conform to the requirements of Florida’s restrictive covenant statute, Section 542.335, Florida Statutes. In doing so, blue pencil laws breathe life into an otherwise invalid contractual provision. The blue pencil exception can be an important tool for those attempting to obtain relief under a contractual provision that violates the restrictive covenant statute.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

A court’s ability to “blue-pencil” a restrictive covenant is limited to modifying the scope of the provision to bring it within the ambit of non-compete law. See White v. Mederi Caretenders Visiting Services of Se. Florida, LLC, 226 So. 3d 774 (Fla. 2017) (Courts are commanded to “modify, or blue pencil, a non-competition agreement that is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest.”). The court can only narrow a restrictive covenant to the extent needed to protect the plaintiff’s established legitimate business interests. Id. (noting that courts can modify overbroad restrictive covenants to “grant only the relief reasonably necessary to protect such interest”). Courts can shorten a restrictive covenant that is too long in duration, may curtail the geographical scope to a more limited area, or may constrain the subject matter to particular legitimate business interests. Id.

Blue penciling laws can create perverse incentives for employers and similarly situated parties to draft overbroad provisions they know have little chance of being enforceable. Employers may force their employees to agree to overbroad restrictive covenants to intimidate employees and make them believe they cannot compete in any respect. Employers may believe there is little risk in drafting an overbroad restrictive provision because a court will probably blue-pencil the provision if enforcement is necessary. Therefore, employers could face little risk in purposefully drafting an onerous overbroad restrictive covenant.

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Corporations routinely require their employees to enter restrictive covenants (including non-solicition and non-compete agreements) protecting the business from unfair competition. However, employees often live and reside in states that are different from the company’s place of incorporation and principal place of business. This trend has grown in recent years as some companies have moved toward a fully remote work environment. The corporation’s ability to enforce its restrictive covenants may be hampered or become more complicated where state laws governing enforcement of restrictive covenants vary.  This article explores a sampling of contradictory restrictive covenant laws and how one might address those contradictions upfront to help ensure a restrictive covenant agreement remains enforceable.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Some states, like Florida, have strong restrictive covenant laws codified by statute. Florida permits non-compete agreements when they are supported by one or more “legitimate business interests” and reasonable in time and scope to protect the business. See Fla. Stat. § 542.335 (“The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.”). Other states, like Pennsylvania, rely on caselaw to enforce restrictive covenants. See, e.g., Socko v. Mid-Atl. Sys. of CPA, Inc., 2014 PA Super 103, 99 A.3d 928, 935 (2014), aff’d, 633 Pa. 555, 126 A.3d 1266 (Penn. 2015) (permitting enforcement of a restrictive convent when the employee “receive[s] actual valuable consideration” and the restriction is reasonably limited in time and territory). Application of case law can be amorphous thereby making it more difficult to enforce the covenant or predict outcomes. See Insulation Corp. of Am. v. Brobston, 446 Pa. Super. 520, 529, 667 A.2d 729, 733 (Penn. 1995) (adding more stringent requirements to enforce a post-employment restrictive covenant). Yet other states like Minnesota prohibit enforcement of most restrictive covenant agreements. Minn. Stat. Ann. § 181.988 (“Any covenant not to compete contained in a contract or agreement is void and unenforceable”).

Companies can insert choice of law provisions in their restrictive covenant agreements to provide some definiteness as to which state’s laws apply. These provisions pre-select the application of a particular state’s laws, usually to the exclusion of all other state laws.  Choice of law provisions, however, are not always enforceable. For example, in Florida, a choice of law provision will not be enforced when its application would violate Florida’s public policy.  In Snelling & Snelling, Inc. v. Reynolds, 140 F. Supp. 2d 1314 (M.D. Fla. 2001), the United States District Court for the Middle District of Florida analyzed a restrictive covenant that selected Pennsylvania as the governing law.  The court explained that, “[s]ince Snelling has indicated its intention for the governing law, Pennsylvania law will govern the dispute between the parties, as long as that law is not against the public policy of the forum state.”   Florida courts analyze the laws of the chosen state as contrasted against Florida law, to determine whether the laws of both states contradict each other.  Snelling explained that the court “must determine whether Pennsylvania law governing non-compete covenants is contrary to Florida’s public policy.”  If a contradiction exists, further analysis would be conducted to determine whether there is a violation of Florida’s public policy.  Other states may construe choice of law provisions differently or enforce them differently.

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For certain business, their trade secrets and are their most valuable assets.  Accordingly, businesses will often seek to protect their trade secrets in various ways, including the use of a non-disclosure agreement (commonly referred to as an “NDA”).  An NDA is a contract that typically binds current and former employees and independent contractors to maintain the confidentiality of disclosed information.  To succeed in business litigation alleging misappropriation of a trade secret, a company must take reasonable measures to protect the secrecy of its information.  This requirement is codified within the Defend Trade Secrets Act (18 U.S.C. section 1839(3)(A)) as part of the definition of “trade secret.”  The United States Court of Appeals for the Seventh Circuit in Tax Track Sys. Corp. v. New Inv. World, Inc., 478 F.3d 783 (7th Cir. 2007), explained that courts evaluate the question of whether efforts to keep information confidential were sufficient “on a case-by-case basis, considering the efforts taken, the costs, benefits, and practicalities of the circumstances.”  The Tax Track decision further stated that, in some circumstances, judgment as a matter of law is appropriate because it is “readily apparent that reasonable measures were not taken.”  Peter Mavrick a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm  Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Under the Defend Trade Secrets Act, 18 U.S.C. section 1839(5)(B)(ii)-(iii), a trade secret is “misappropriated” by, among other means, “disclosure or use of a trade secret of another without the express or implied consent by a parson who…at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was…acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or…derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret.”  Although an NDA is not a necessary condition to demonstrate reasonable protection for a business’ trade secrets, it nevertheless can serve as persuasive evidence in demonstrating the business took reasonable measures to protect its intellectual property.  The United States Court of Appeals for the Eleventh Circuit in Penalty Kick Management Ltd. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003), stated in pertinent part that, “[i]n this case, the surrounding circumstances, namely the Non–Disclosure Agreement, clearly gave rise to a duty on the part of Coca–Cola to maintain the secrecy of any Magic Windows trade secrets.”

Requiring that employees and independent contractors sign NDAs is generally not, by itself, sufficient to prove the employer took reasonable measures to protect its trade secrets.  As with any valuable asset, common sense is needed to determine what measures are appropriate under the relevant circumstances.  For example, the business may need to limit access to the trade secrets to only those employees who “need to know” the information, limit access to information via separate computer database that is password protected, and limit employee access to certain parts of the business premises to prevent inadvertent dissemination of trade secret information.  Such measures may deter or prevent trade secret information.  In the event of actual misappropriation, such prudent measures would help the business protect its trade secrets in litigation seeking an injunction and damages.

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Some businesses have experienced loss of customer relationships due to former employees taking customer relationships to competitors.  The most obvious way to protect against such a situation is to ensure employees sign a restrictive covenant under Florida Statutes Section 542.335, commonly referred to as a non-compete agreement, prohibiting solicitation of customers and competition that diverts the employer’s customers to a competitor.  Sometimes, however, businesses do not have a non-compete agreement with their employees.  The law of trade secrets can be used, under certain circumstances, to bar use of confidential information, including customer lists, to divert customers to competitors.  Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Florida’s Second District Court of Appeal, in East v. Aqua Gaming, 805 So.2d 932 (Fla. 2d DCA 2001), explained what is required to prove a customer list is a trade secret.  To qualify as a trade secret, there must be evidence that a customer list “was the product of great expense and effort, that it included information that was confidential and not available from public sources, and that it was distilled from larger lists of potential customers into a list of viable customers for [a] unique business.”  Customer lists can constitute trade secrets where the lists are acquired or complied through the industry of the owner of the lists and are not just a compilation of information commonly available to the public.

In trade secret litigation, it is often a major issue whether the alleged trade secret owner took appropriate measures to keep the the subject information a secret.  Under Florida’s trade secret statute, section 688.002(4)(b), a trade secret owner must make “efforts that are reasonable under the circumstances to maintain its secrecy.”  As to this issue, Florida and federal courts will often look at whether the alleged trade secret owner had signed agreements with its employees to protect the company information.  In My Energy Monster, Inc. v. Gawrych, 2020 WL 8224616 (M.D. Fla. 12/18/2020), the federal court faulted the business that owned the alleged trade secret for not taking better measures to protect its trade secrets, and stated in pertinent part: “However, the record demonstrates that Gawrych was not required to sign a non-compete agreement, non-solicitation agreement, nor a confidentiality agreement and that non existed for other Energy Monster employees.  According to Defendants, all employees at Energy Monster had access to the customer list…Defendants, further state that [t]here [were] no ‘need to know’ employees and Energy Monster never obtained nondisclosure agreements or confidentiality agreements–even after the parties parted ways and Gawrych offered  to sign an NDA…Yet Energy Monster seeks to prevent the very action that such agreements are typically designed to prevent.”

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