FORT LAUDERDALE BUSINESS LITIGATION: TRADE SECRET IRREPARABLE HARM

The injunction remedy is an important facet of a trade secret lawsuit because it precludes the misappropriator from using the trade secret. Courts can grant an injunction to prevent actual or threatened misappropriation or require affirmative actions to protect the trade secret. 18 U.S.C.A. § 1836. To obtain an injunction, the movant must establish, among other things, the existence of irreparable harm. VAS Aero Servs., LLC v. Arroyo, 860 F. Supp. 2d 1349 (S.D. Fla. 2012) (“The second factor the court must consider when evaluating a request for a preliminary injunction is whether there has been a showing of irreparable harm.”). Courts have stated the irreparable harm element is “the sine qua non of injunctive relief,” meaning it is an indispensable component to obtaining an injunction remedy. Northeastern Florida Chapter v. City of Jacksonville, 896 F.2d 1283 (11th Cir.1990) (quoting Frejlach v. Butler, 573 F.2d 1026 (8th Cir.1978)). 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.