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Business litigation often involve claims for trade secret misappropriation under Florida’s Uniform Trade Secret Act (FUTSA). Under certain circumstances, parties in business litigation may be entitled injunctive relief under FUTSA. A plaintiff seeking a temporary injunction to protect its trade secrets must show that there is an actual or likely misappropriation of trade secrets and that the circumstances justify the entry of a temporary injunction. To prevail on a motion for a preliminary or temporary injunction, a plaintiff must show that “(1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest.” Donoho v. Allen-Rosner, 254 So. 3d 472 (Fla. 4th DCA 2018). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation 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.

A plaintiff seeking an injunction must establish that it “(1) that it possessed a trade secret and took reasonable steps to protect its secrecy; and (2) the trade secret was misappropriated, either by one who knew or had reason to know the trade secret was improperly obtained or who used improper means to obtain it.” Mapei Corp. v. J.M. Field Mktg., Inc, 295 So. 3d 1193 (Fla. 4th DCA 2020). Under Florida law, misappropriation of a trade secret occurs “where a person who knows or has reason to know that the trade secret was acquired by improper means acquires the trade secret of another or where a person who has obtained the trade secret by improper means discloses or uses the trade secret of another without express or implied consent.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012).

In addition, “the information that the plaintiff seeks to protect must derive economic value from not being readily ascertainable by others and must be the subject of reasonable efforts to protect its secrecy. Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271 (S.D. Fla. 2001). If the subject information is already known or readily accessible to the public, it typically does not qualify for trade secret protection. Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407 (11th Cir.1998). “[S]omething that is already readily ascertainable can[not] be misappropriated.” Wound Care Concepts, Inc. v. Vohra Health Services, P.A., 2022 WL 320952 (S.D. Fla. Jan. 28, 2022).

When determining whether a preliminary injunction is warranted, Florida courts must consider “whether there has been a showing of irreparable harm. VAS Aero Services, LLC v. Arroyo, 860 F. Supp. 2d 1349 (S.D. Fla. 2012). This factor is “the sine qua non of injunctive relief.” Northeastern Florida Chapter v. City of Jacksonville, 896 F.2d 1283 (11th Cir.1990). Indeed, an injury from trade secret misappropriation must be actual and imminent, not remote or speculative. In order for an injury to be irreparable, it cannot be undone through monetary remedies. VAS Aero Services, LLC v. Arroyo, 860 F. Supp. 2d 1349 (S.D. Fla. 2012).

An injunction under FUTSA also should ordinarily be for a specified period of time, which may be extended under certain circumstances. Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267 (11th Cir. 2021). FUTSA only “authorizes the injunction of specific, identifiable trade secrets,” not “blanket restraint of competition.” Norton v. Am. LED Tech., Inc., 245 So. 3d 968 (Fla. 1st DCA 2018). Accordingly, FUTSA “may not be used as a vehicle to restrict competition.” Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267 (11th Cir. 2021).

In addition, Florida’s legislature and the United States Congress have generally determined that public interest is served by protecting a business’ investment in confidential and proprietary information, which includes trade secrets. Autonation, Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004). However, this consideration is only one factor in the Court’s analysis when determining whether an injunction is needed. Plaintiffs also must establish the existence of its trade secrets under FUTSA and its rights to injunctive relief under the standards addressed above.

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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