Florida Business Litigation Lawyer Blog

Published on: April 27, 2022

DEFENDING FLORIDA EMPLOYERS: DEFEATING RETALIATION CLAIMS WHERE EMPLOYEE NOT QUALIFIED

Employers typically are not liable for alleged retaliatory acts against their current or former employees when the employee is not qualified for the employment position. This is true under both Florida and federal law governing retaliation claims. The Florida Civil Rights Act of 1992 (FCRA) provides that it is unlawful for “an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation under this section.” Section 760.10 of the FCRA also governs claims arising over an employer’s “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge” and “threats, reprimands, negative evaluations, [and] harassment[.]” Donovan v. Broward County Bd. Of Com’rs, 974 So. 2d 458 (Fla. 4th DCA 2008). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The FCRA was modeled after its federal law counterpart, Title VII of the Civil Rights Act of 1964, which prohibits employers with more than 15 employees from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Federal and state courts in Florida analyze FCRA claims under the same framework as Title VII claims. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010).

To establish a prima facie case for retaliation under Title VII, a plaintiff must show that he or she: (1) engaged in statutorily protected activity, (2) suffered an adverse reaction, and (3) the adverse reaction was causally related to the protected activity. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121 (11th Cir. 2020). Title VII prohibits an employer from retaliating against “any . . . [employee] . . . because [s]he has opposed any practice made an unlawful employment practice” by Title VII, “or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020). A plaintiff must satisfy the same elements to establish a retaliation claim under the FCRA. Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3d DCA 2004). Once the prima facie case is established, it creates a “presumption that the adverse action was the product of an intent to retaliate.” Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009).

Continue reading →

Published on: April 23, 2022

MIAMI BUSINESS LITIGATION: TRADE SECRET THEFT DURING EMPLOYMENT

By Mavrick Law Firm

One of the main issues in trade secret litigation is whether the business can prove the statutory element that there was a “misappropriation” of its trade secrets. To qualify for protection under Florida Uniform Trade Secrets Act (“FUTSA”) and the federal Defend Trade Secrets Act (“DTSA”), an employer must prove its trade secrets were acquired wrongfully through improper means. For liability to attach under the DTSA and FUTSA, the information must be the fruit of this wrongful acquisition, which is commonly referred to as “misappropriation.” 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 clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

The federal trade secrets statute, DTSA , defines “misappropriation” to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means” or “disclosure or use of a trade secret of another without express or implied consent” in specified circumstances. 18 U.S.C. § 1839(5). “Improper means” under the Act includes “theft, bribery, misrepresentation, [and] breach or inducement of a breach of a duty to maintain secrecy,” but excludes “reverse engineering, independent derivation, or any other lawful means of acquisition.” 18 U.S.C. § 1839(6). The definition of “improper means” under FUTSA includes “breach or inducement of a breach of a duty to maintain secrecy.” Fla. Stat. § 688.002(1).

Federal courts in the Eleventh Circuit regularly find that trade secrets are acquired through improper means when a former employee downloads a former employer’s trade secret information before resigning. For example, in Fortiline, Inc. v. Moody, the United States District Court for the Southern Distrit of Florida found “ample evidence to suggest that [the defendants] acquired [plaintiff’s] trade secrets through improper means” when a defendant “removed [plaintiff’s] customer contact and pricing information from the company server to his laptop hard drive, and used this information to solicit customers for [his new company] while working for [the plaintiff].” 2013 WL 12101142 (S.D. Fla. Jan. 3, 2013). Fortiline held that “FUTSA allows courts to issue injunctions to prevent actual or threatened misappropriation of trade secrets, whether or not a non-compete agreement restricts post-employment competition.” The Fortiline Court ultimately enjoined the defendant from soliciting customers after it was shown that Moody copied his former employer’s trade secrets from company laptops onto his own personal storage devices, which was determined through forensic examination.

Continue reading →

Published on: April 20, 2022

FORT LAUDERDALE BUSINESS LITIGATION: FLORIDA LAW PROTECTS A COMPANY’S SPECIALIZED TRAINING AS A LEGITIMATE BUSINESS INTEREST

By Mavrick Law Firm

A frequent issue in business litigation is whether restrictive covenants in an employment contract are enforceable. “Florida statutory law (as a matter of public policy) does not allow a party to enforce a restrictive covenant unless it proves that enforcement is necessary to protect its legitimate business interests.” Evans v. Generic Sol. Eng’g, LLC, 178 So. 3d 114 (Fla. 5th DCA 2015). Generally, a “legitimate business interest must represent an investment by the employer and must enable unfair competition if misappropriated.” IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016). Florida’s non-compete statute, Section 542.335, includes a non-exhaustive list of examples of legitimate business interests, one of which is a party’s “extraordinary or specialized training.” 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 litigation, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, “a ‘legitimate business interest’ is an identifiable business asset that constitutes or represents an investment by the proponent of the restriction such that, if that asset were misappropriated by a competitor (i.e., taken without compensation), its use in competition against its former owner would be “unfair competition.” White v. Mederi Caretenders Visiting Servs. Of Se. Fla, LLC, 226 So. 3d 774 (Fla. 2017). Indeed, the Supreme Court of Florida has held that a “legitimate business interest is a business asset that, if misappropriated, would give its new owner an unfair competitive advantage over its former owner.” White v. Mederi Caretenders Visiting Servs. Of Se. Fla, LLC, 226 So. 3d 774 (Fla. 2017). An employer can enforce a non-compete agreement if “there [are] special facts present over and above ordinary competition such that, absent a non-competition agreement, ‘the employee would gain an unfair advantage in future competition with the employer.’” Passalacqua v. Naviant, Inc., 844 So.2d 792 (Fla. 4th DCA 2003).

Training an employee constitutes a legitimate business interest protectable by Florida law when the training rises to the level of being specialized or extraordinary. Training is classified as extraordinary when it exceeds ‘what is usual, regular, common, or customary in the industry in which the employee is employed.’” Dyer v. Pioneer Concepts Inc., 667 So. 2d 961 (Fla. 2d DCA 1996). The special training must go above and beyond “what would be common or typical in the industry.” Autonation Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004). A business’ optional training will “not constitute a legitimate business interest sufficient to justify injunctive relief.” Austin v. Mid State Fire Equip. of Cent. Florida, Inc., 727 So. 2d 1097 (Fla. 5th DCA 1999). As such, Florida courts have found no legitimate business interest where an employee “was not required to attend the various training seminars and only ‘popped in and out’ of the meetings.” Autonation Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004).

Continue reading →

Published on: April 16, 2022

FORT LAUDERDALE BUSINESS LITIGATION: THE LANHAM (TRADEMARK) ACT PROTECTS A COMMERCIAL ENTERPRISE’S TRADE DRESS

By Mavrick Law Firm

The Lanham Act is a federal statute that protects businesses from various types of unfair competition, including trade dress infringement. The term “trade dress” is defined as “the total image of a product . . . [that] may include features such as size, shape, color or color combinations, textures, graphics, or even particular sales techniques.” Epic Metals Corp. v. Souliere, 99 F.3d 1034 (11th Cir. 1996). Trade dress infringement claims often arise in business litigation between businesses that produce, design, or use similar products. Businesses can sue for trade dress infringement under the Lanham Trademark Act when the relevant features of the business’ product are non-functional. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, 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 term trade dress refers to “the appearance of a product when that appearance is used to identify the producer.” Dippin’ Dots, Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197 (11th Cir. 2004). “‘Trade [d]ress’ involves the total image of a product and may include features such as size, shape, color . . . , texture, graphics, or even particular sales techniques.” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986). To prevail on a claim for trade dress infringement, a party must prove that: “(1) the product design of the two products is confusingly similar; (2) the features of the product design are primarily non-functional; and (3) the product design is inherently distinctive or has acquired secondary meaning.” Dippin’ Dots, Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197 (11th Cir. 2004).

Business litigation under the Lanham Act focuses on protecting trade dress for a product’s non-functional features. Epic Metals Corp. v. Souliere, 99 F.3d 1034 (11th Cir. 1996). Indeed, “trade dress protection may not be claimed for product features that are functional.” TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23 (2001). “There is no bright line test for functionality.” Dollar Only Wholesale, LLC v. Transnational Foods, Inc., 2014 WL 11944275 (S.D. Fla. Apr. 23, 2014). “[T]he person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.” 15 U.S.C. § 1125(a)(3). The issue of functionality is treated as a question of fact. Epic Metals Corp. v. Souliere, 99 F.3d 1034 (11th Cir. 1996).

Continue reading →

Published on: April 13, 2022

DEFENDING FLORIDA EMPLOYERS: EMPLOYEE’S “FAILURE TO MITIGATE” DAMAGES REDUCES POSSIBLE RECOVERY

By Mavrick Law Firm

Parties generally have a duty to mitigate their damages under Florida law. A party’s “failure to mitigate” its damages is a defense commonly raised in employment litigation. “The doctrine of avoidance consequences, commonly referred to as a duty to mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer which the injured party could have avoided without undue risk, burden, or humiliation.” Graphic Associates, Inc. v. Riviana Restaurant Corp., 461 So. 2d 1011 (Fla. 4th DCA 1984). A party’s failure to mitigate its damages is an affirmative defense that can be raised by businesses against former employees. Frederick v. Kirby Tankships, Inc., 205 F.3d 1277 (11th Cir. 2000). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The failure to mitigate is a prevalent defense in Title VII employment cases. Successful claimants bringing Title VII discrimination claims are typically entitled to backpay. Title VII specifically provides that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g)(1). “[I]n calculating a back pay award, the trial court must determine what the employee would have earned had she not been the victim of discrimination, and must subtract from this figure the amount of actual interim earnings.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). To establish the affirmative defense of a Title VII claimant’s failure to mitigate damages, the defendant employer “must show that a claimant did not make reasonable efforts to obtain comparable work, or that comparable work was available and the claimant did not seek it out.” Sennello v. Reserve Life Ins. Co., 667 F. Supp. 1498 (S.D. Fla. 1987). Indeed, the “employer must show that the claimant failed to exercise reasonable diligence to locate other suitable employment and maintain a suitable job once it is located.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). If “an employer proves that the employee has not made reasonable efforts to obtain work, the employer does not have to establish the availability of substantially comparable employment.” Weaver v. Casa Callardo, Inc., 922 F.2d 1515 (11th Cir. 1991).

A Title VII claimant seeking front or backpay “must make a reasonable and good-faith effort to mitigate her damages.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). To do so, the claimant must seek employment “substantially equivalent” to the position from which she was terminated. Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279 (M.D. Fla. 2001). “Substantially equivalent employment is employment that affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status to those available to employees holding the position from which the Title VII claimant has been discriminatorily terminated.” E.E.O.C. v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1363 (S.D. Fla. 1998). Once accepted, the claimant must also “make reasonable and good faith effort to retain the job.” Sennello v. Reserve Life Ins. Co., 667 F.Supp. 1498 (S.D. Fla. 1987).

Continue reading →

Published on: April 9, 2022

FORT LAUDERDALE BUSINESS LITIGATION: FRAUD DAMAGES VERSUS BREACH OF CONTRACT DAMAGES

By Mavrick Law Firm

A prevalent issue in business litigation is whether a party can recover damages for fraud if the party also sues for breach of contract. “Under Florida law, ‘one can sue for breach of contract and fraudulent inducement to enter the very same contract, and obtain two recoveries.’” Guarantee Ins. Co. v. Brand Management Servs., Inc., 2014 WL 11531365 (S.D. Fla. Sept. 15, 2014). However, “[a] plaintiff . . . may not recover damages for fraud that duplicate damages awarded for breach of contract.” Novak v. Gray, 469 F. App’x 811 (11th Cir. 2012). Florida’s independent tort doctrine “prohibits claims in tort for damages, which are the same as for breach of contract so prevent plaintiffs from recovering duplicative damages for the same wrongdoing.” Perez v. Scottsdale Ins. Co., 2019 WL 5457746 (S.D. Fla. Oct. 24, 2019). 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.

“It is well settled that a party may not recover damages for both breach of contract and fraud unless the party first establishes that the damages arising from the fraud are separate or distinguishable from the damages arising from the breach of contract.” Williams v. Peak Resorts Intern. Inc., 676 So. 2d 513 (Fla. 5th DCA 1996). A “fraud claim may not be pursued if its damages merely duplicate the damages recoverable for breach of a related contract.” Huie v. Dent & Cook, P.A., 635 So. 2d 111 (Fla. 2d DCA 1994). “Where the compensatory damages requested in a count for tort are identical to the compensatory damages sought in a count for breach of contract, compensatory damages and punitive damages for tort are not recoverable.” Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986).

For breach of contract claims arising under Florida law, there is a difference between general damages and consequential damages. General damages are “those damages which naturally and necessarily flow or result from the injuries alleged.” Hutchison v. Tompkins, 259 So. 2d 129 (Fla. 1972). In other words, general damages are those that “may fairly and reasonably be considered as arising in the usual course of events from the breach of contract itself.” Fla. E. Coast Ry. v. Beaver St. Fisheries, Inc., 537 So. 2d 1065 (Fla. 1st DCA 1989). By contrast, consequential damages are not likely to occur in the usual course of events, but “may reasonably be supposed to have been in contemplation of the parties at the time they made the contract.” Fla. E. Coast Ry. v. Beaver St. Fisheries, Inc., 537 So. 2d 1065 (Fla. 1st DCA 1989). Consequential damages are sometimes referred to as special damages as well. “Special damages consist of items of loss which are peculiar to the party against whom the breach was committed and would not be expected to occur regularly to others in similar circumstances.” Hardwick Properties, Inc. v. Newbern, 711 So. 2d 35 (Fla. 1st DCA 1998).

Continue reading →

Published on: April 6, 2022

DEFENDING FLORIDA EMPLOYERS: THE DOCTRINE OF RESPONDEAT SUPERIOR AND VICARIOUS LIABILITY

By Mavrick Law Firm

Respondeat superior is a common law doctrine which provides that an employer may be held liable for the actions of its employee if the employee was acting within the scope of his or her employment when committing the tortious or criminal act. Many businesses find themselves involved in litigation due to the actions of their employees, whether these actions are intentional or negligent. However, because the doctrine of respondeat superior requires the conduct of the employee to have been within the scope of employment, the employer often has a valid defense to any alleged third-party or vicarious liability. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The doctrine of respondeat superior developed historically to hold the master responsible for the acts of his servant because the master alone is able to direct the servant. This liability of the master or principal is sometimes referred to as vicarious, transferred, derivative or imputed liability. Where the relationship of master-servant, principal-agent, or employer-employee exists, the doctrine is referred to as “respondeat superior.” 1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.). Therefore, the terms respondeat superior and vicarious liability are often used interchangeably when a principal or employer is sought to be held liable for the acts of an agent or employee.

However, an employer is only vicariously liable for damages resulting from the tortious acts of an employee when these acts were committed within the scope of his or her employment. This is based upon the long-recognized public policy that victims injured by the tortious or criminal acts of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. “Under the doctrine of respondent superior, an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353 (Fla. 3d DCA 2001). For the conduct of an employee to be considered within the scope of employment, “Florida law requires that the conduct (1) must have been the kind for which the employee was employed to perform; (2) must have occurred within the time and space limits of his employment; and (3) must have been activated at least in part by a purpose to serve the employment.” Spencer v. Assurance Co. of Am., 39 F.3d 1146 (11th Cir.1994).

Continue reading →

Published on: April 2, 2022

MIAMI BUSINESS LITIGATION: CHOICE OF LAW PROVISIONS DO NOT AUTOMATICALLY CONFER PERSONAL JURISDICTION

By Mavrick Law Firm

Florida businesses often include “choice of law” provisions in their contracts to identify the substantive state law that will govern disputes that may later arise under the contract. These provisions provide the contracting parties with a greater degree of certainty as to how certain claims ultimately resolve in the future. Choice of law provisions are particularly important for businesses to consider when drafting commercial and consumer contracts with parties from different states. However, under Florida law, a choice of law provision does not automatically confer personal jurisdiction over an out-of-state litigant to be sued in the same state as the chosen law. 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 clients in breach of contract litigation, 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 courts will generally enforce a choice-of-law provision in a contract unless the law of the chosen forum contravenes strong public policy. Punzi v. Shaker Adver. Agency, Inc., 601 So. 2d 599 (Fla. 2d DCA 1992). This rule “is premised on the presumption that choice-of-law provisions are valid unless the party seeking to avoid enforcement of them sufficiently carries the burden of showing that the foreign law contravenes strong public policy of the forum jurisdiction.” Walls v. Quick & Reilly, Inc., 824 So. 2d 1016 (Fla. 5th DCA 2002). “Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language.” Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015). Florida courts will therefore enforce unambiguous choice-of-law provisions unless a specific public policy sufficiently outweighs the general public policy protecting freedom of contract. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306 (Fla. 2000). Moreover, choice-of-law provisions in commercial contracts are also expressly authorized by Section 671.105(1), Florida Statutes., which provides: “[W]hen a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties.”

Choice of law provisions reflect “[a]n agreement between parties to be bound by the substantive laws of another jurisdiction.” Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73 (Fla. 2012). “It is well established that when the parties to a contract have indicated their intention as to the law which is to govern, it will be governed by such law in accordance with the intent of the parties.” Dep’t of Motor Vehicles ex rel. Fifth Ave. Motors, Ltd. v. Mercedes-Benz of N. Am., Inc., 408 So. 2d 627 (Fla. 2d DCA 1981). Choice of law clauses consistently provide that the agreement be governed, construed, interpreted, or enforced by or in accordance with the laws of the State of Florida or another state of the parties’ choosing. Banco Indus. de Venezuela C.A., Miami Agency v. de Saad, 68 So. 3d 895 (Fla. 2011).

Continue reading →

Published on: March 30, 2022

FORT LAUDERDALE TRADE SECRET LITIGATION: PREEMPTION UNDER FLORIDA’S UNIFORM TRADE SECRET ACT

By Mavrick Law Firm

Business litigation involving claims under Florida’s Uniform Trade Secrets Act (FUTSA) for trade secret misappropriation often also include similar additional claims for tortious interference, fraud, or violations of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). However, these additional claims rarely survive past the pleading stage because FUTSA prohibits parties from maintaining common law and statutory claims arising from facts substantially similar to the alleged trade secret misappropriation. FUTSA “displace[s] conflicting tort, restitutory, and other laws of this state providing civil remedies or misappropriation of a trade secret.” Section 688.008, Florida Statutes. This “provision expressly prohibits a pleader from asserting alternative claims based on trade secret misappropriation because Florida’s Legislature decreed that FUTSA preempts all other causes of action.” Coihue, LLC v. PayAnyBiz, LLC, 2018 WL 7376908 (S.D. Fla. Feb. 6, 2018). Peter Mavrick is a Fort Lauderdale trade secret attorney, and also advocates for clients in Palm Beach, Boca Raton, and Miami, Florida. The Mavrick Law Firm represents corporations and their owners in business litigation, non-compete agreement litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, a party’s “separate tort claim is preempted by FUTSA if there is no material distinction between the plaintiff’s FUTSA claim and the other allegation.” Sentry Data Systems, Inc. v. CVS Health, 361 F. Supp. 3d 1279 (S.D. Fla. 2018). “To determine whether allegations of trade-secret misappropriation preempt a plaintiff from sufficiently pleading a separate, but related tort, the Court must evaluate whether allegations of trade secret misappropriation alone comprise the underlying wrong; if so, the cause of action is barred by § 688.008.” Sentry Data Systems, Inc. v. CVS Health, 361 F. Supp. 3d 1279 (S.D. Fla. 2018). “In determining if a tort cause of action is preempted by the FUTSA, courts have examined whether there are “material distinctions between the allegations comprising the additional torts and the allegations supporting the FUTSA claim.” Digiport, Inc. v. Foram Dev. BFC, LLC, 314 So. 3d 550 (Fla. 3d DCA 2020). “In other words, the allegations must be separate and distinct.” ThinkLite LLC v. TLG Sols., LLC, 2017 WL 5972888 (S.D. Fla. Jan. 31, 2017). If the trade secret misappropriation alone comprises the underlying wrong, the claim is preempted. Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329 (S.D. Fla. 2002).

Florida courts will dismiss additional tort or statutory claims as preempted under FUTSA where “the underlying wrong in each of those claims [was] limited to trade secret misappropriation and each re-allege[d] all the prior allegations” related to FUTSA. Fla. Beauty Flora Inc. v. Pro Intermodal L.L.C., 2021 WL 1945821, (S.D. Fla. May 14, 2021). In Pelfrey v. Mahaffy, the U.S. District Court for the Southern District of Florida dismissed claims for tortious interference where he alleged a party stole and deleted confidential business information and then used it to divert clients to a competing business. Pelfrey v. Mahaffy, 2018 WL 3110794 (S.D. Fla. Feb. 7, 2018). Similarly, in American Registry, LLC v. Hanaw, the U.S. District Court for the Middle District of Florida dismissed FDUTPA claims as preempted under FUTSA where the plaintiff alleged FDUTPA claims based on allegations that defendant used trade secret information to solicit and steal customers. 2014 WL 12606501 (M.D. Fla. July 16, 2014).

Continue reading →

Published on: March 26, 2022

DEFENDING FLORIDA EMPLOYERS: DEFEATING CLAIMS OF SEXUAL HARASSMENT ALLEGING “QUID PRO QUO”

By Mavrick Law Firm

In many cases, employers or managers make statements that do not qualify as sexual harassment as a matter of law, even though the statements may be viewed as inappropriate. To assess the best defense against an employee’s claim of sexual harassment, it is important to understand the types of sexual harassment under the law and whether the employee’s allegations qualify as a valid claim under Federal or Florida law. One type of sexual harassment under Federal and Florida law is called “quid pro quo” sexual harassment. Florida law follows Federal law concerning whether the alleged actions constitute “sexual harassment.”

Employees can sue their current or former employers based on a quid pro quo theory of sexual harassment under Title VII of the Civil Rights Act of 1964. “Quid pro quo sexual harassment occurs when an employer alters an employee’s job conditions as a result of the employee’s refusal to submit to sexual demands.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). This type of claim differs from sexual harassment claims based on a hostile work environment where an employer’s conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

“The gravamen of a quid pro quo sexual harassment claim is that the employer conditions an employment benefit or job status upon the employee’s submission to conduct of a sexual nature.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). To establish a prima facie case of quid pro quo sexual harassment against their current or former employer, an employee must show “(1) that [she] belongs to a protected group, (2) that [she] was subjected to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that [her] reaction to the harassment complained of affected tangible aspects of [her] compensation, or terms, conditions, or privileges of employment.” Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). An employer is strictly liable for quid pro quo sexual harassment by a supervisor based on the agency doctrine of respondent superior.

Continue reading →