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In business litigation, claims for trade secret misappropriation often arise under Florida’s Uniform Trade Secret Act (“FUTSA”) or the Defend Trade Secrets Act (“DTSA”). For liability to attach under the DTSA and FUTSA, the information must be the fruit of wrongful acquisition, or misappropriation. The 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 DTSA 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.” 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.

Florida courts routinely find that trade secrets are acquired through improper means when a business’ employee copies or extracts electronic information before their employment ends. For example, in Pharmerica, Inc. v. Arledge, the United States District Court for the Middle District of Florida held that the defendant “misappropriated those trade secrets by duplicating and copying them and/or sending them to his home computer or personal email account and deleting them from the [plaintiff’s] computers.” 2007 WL 865510 (M.D. Fla. Mar. 21, 2007). Pharmerica considered the fact that the defendant “copied almost all of his electronic files from his work computer” just two days before he resigned from his position with his former employer. The trade secrets and proprietary information involved the former employer’s distribution and operational plans, quality control programs, and—most importantly—the former employer’s pricing details for major corporate clients that represented at one-third of the company’s total revenues.

Under the DTSA, federal courts across the United States have held that misappropriation by acquisition via download or password protected database requires evidence that an employee took affirmative action to ensure they retained access to the information after he or she was terminated, such as copying the information to his or her hard drive. For example, in Samick Music Corp. v. Gordon, the Court held it was reasonable to suspect that defendants obtained the customer’s information from the former employer’s database through improper means because: (a) many of the purchases were made by individuals who had previously purchased products from the former employer, and (b) the plaintiff identified two instances after the employee’s termination where defendants contacted former customers to sell them purported former employer’s replacement parts.  The district court found that Plaintiff had demonstrated a likelihood of success on its DTSA and CUTSA trade secret misappropriation claims. 2020 WL 3210613 (C.D. Cal. Mar. 26, 2020).

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A prevalent issue arising in business litigation is whether a party wrongfully interfered with another parties’ business relationships. Parties in business litigation often assert claims under Florida law for tortious interference with their prospective or existing business relationships. These relationships must be identifiable. Such relationships are often governed by existing contractual relationships between parties, but valid claims may also exist against parties who interfere with non-contractual business relationships as well. Parties can sue a business or person for tortious interference where the business or person unjustifiably interfered with the party’s business or contractual relationships. “The tort of tortious interference teeters between two competing values—the desire to protect the reasonable expectations of the parties to a business relationship on the one hand, and the need to avoid excessive restrictions on freedom of competition on the other.” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001). 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.

Tortious interference with a contract and tortious interference with a business relationship are very similar causes of action. The primary difference is that one claim involves an express contract, while the other involves only a business relationship. Plain Bay Sales, LLC v. Gallaher, 2018 WL 4208343 (S.D. Fla. Aug. 23, 2018).  The elements essential to recovery for tortious interference with a contract are: “(1) the contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) damages resulting therefrom.” Smith v. Ocean State Bank, 335 So. 2d 641 (Fla. 1st DCA 1976).

The elements of a claim for tortious interference with a business relationship are: (1) “the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy; [ (2) ] knowledge of the relationship or expectancy on the part of the interferer; [ (3) ] an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and [ (4) ] resultant damage to the party whose relationship or expectancy has been disrupted.” Smith v. Ocean State Bank, 335 So. 2d 641 (Fla. 1st DCA 1976). Tortious interference with a business relationship requires interference with “business relations of another, both existing and prospective, by including a third person not to enter into or continue a business relation with another or by preventing a third person from continuing a business relation with another.” Plain Bay Sales, LLC v. Gallaher, 2018 WL 4208343 (S.D. Fla. Aug. 23, 2018).

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Title VII makes it an “unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual’s religion.” Title VII defines religion as follows: “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e. Under Title VII, an employer therefore has a “statutory obligation to make reasonable accommodation for the religious observances of its employee, short of incurring an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 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.

To establish a prima facie case of religious discrimination under Title VII, a plaintiff must first “present evidence sufficient to prove that (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of his belief; and (3) he was discharged for failing to comply with the conflicting employment requirement.” Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589 (11th Cir. 1994). The burden then shifts to the defendant to “demonstrate[] that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42. U.S.C. § 2000e. This is a two-prong inquiry.

“To satisfy its burden, the employer must demonstrate either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or (2) that such accommodation was not provided because it would have caused an undue hardship – that is, it would have ‘result[ed] in more than a de minimis cost to the employer.’” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008). “Thus, if an employer has provided a reasonable accommodation, [the court] need not examine whether alternative accommodations not offered would have resulted in undue hardship.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008).

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Businesses can use non-compete agreements to protect their substantial business relationships with prospective and current customers, patients, or clients. A common issue in business litigation seeking to enforce non-compete agreements is whether a business has a trade secret that qualifies as a legitimate business interest. 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.

A non-compete agreement cannot be enforced without a court finding that the agreement is supported by a “legitimate business interest” in the non-compete agreement. “Section 542.335 contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants in Florida based on an ‘unfair competition’ analysis.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). Under Section 542.335, a plaintiff must satify three requirements to enforce a restrictive covenant: (1) the restrictive covenant must be “set forth in writing signed by the person against whom enforcement is sought”; (2) the party seeking to enforce the restrictive covenant “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant”; and (3) the party seeking to enforce the restrictive covenant “shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” Section 542.335, Florida Statutes.

A business’ trade secret can qualify as a legitimate business interest pursuant to Florida law.  Trade secrets are specifically delineated as legitimate business interests in Section 542.335(1)(b)(1), Florida Statutes. The Florida Uniform Trade Secrets Act (“FUTSA”) defines trade secrets as “information, including a formula, pattern, compilation, program, device, method, technique, or process” that:

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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).

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Business litigation often involves contractual disputes between employers and employees concerning the enforceability of non-compete agreements or other restrictive covenants. Under Florida law, a contractual non-compete restriction cannot be used solely as a tool to eliminate competition or merely to prevent an employee from working with a competing employer in any capacity. When a breach-of-contract action is based upon enforcement of a restrictive covenant, the plaintiff must plead and prove specific elements to establish that the restrictive covenant is a valid restraint of trade. Rauch, Weaver, Norfleet, Kurtz & Co., Inc. v. AJP Pine Island Warehouses, Inc., 313 So. 3d 625 (Fla. 4th DCA 2021). “[T]he term ‘restrictive covenants’ includes all contractual restrictions upon competition, such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). 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.

“Section 542.335 contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants in Florida based on an ‘unfair competition’ analysis.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). Under Section 542.335, a plaintiff must satify three requirements to enforce a restrictive covenant: (1) the restrictive covenant must be “set forth in writing signed by the person against whom enforcement is sought”; (2) the party seeking to enforce the restrictive covenant “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant”; and (3) the party seeking to enforce the restrictive covenant “shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” § 542.335, Fla. Stat.

Restrictive covenants are unlawful, void, and unenforceable if they are not supported by a legitimate business. “[T]he determination of whether an activity qualifies as a protected legitimate business interest under [Section 542.335] is inherently a factual injury, which is heavily industry – and context-specific.” White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774 (Fla. 2017). “Section 542.335 provides a list of ‘legitimate business interests,’ but it specifically states that the list is not exclusive.” Infinity Home Care, L.L.C. v. Amedisys Holding, LLC, 180 So. 3d 1060, 1063 (Fla. 4th DCA 2015). Section 542.335 protects the following legitimate business interests: trade secrets; valuable confidential business or professional information that otherwise does not qualify as trade secrets; substantial relationships with specific or existing customers, patients, or clients; customer, patient, or client goodwill associated with an ongoing business or professional practice, a specific geographic location, or a specific marketing or trade area; and extraordinary or specialized training.

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The Lanham Act is a federal statute that protects businesses from various types of unfair competition, including trademark infringement. In business litigation, the Lanham Act permits trademark owners to sue other businesses or individuals for violating their trademark rights. The Lanham Act provides that “[w]hen a violation of any right of the registrant of a mark … shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled . . . subject to the principles of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.” Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019). 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.

In addition to monetary damages, the Lanham Act also permits courts the “power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to prevent the violation of any right of the registrant of a mark registered in the Patent and Trademark Office or to prevent a violation under subsection (a), (c), or (d) of 15 U.S.C. § 1125.” In “exceptional cases” in business litigation, a prevailing party can also be awarded attorneys’ fees under the Lanham Act. The Lanham Act, thus “provides a broad menu of remedies to a plaintiff claiming infringement” of its trademarks. Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019).

In “ordinary trademark infringement actions . . . complete injunctions against the infringing party are the order of the day.” SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325 (11th Cir. 1996). This is typically the case because Courts “the public deserves not to be led astray by the use of inevitably confusing marks,” and injunctive relief is the surest way to prevent future harm. Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200 (11th Cir. 2008). Indeed, Courts consider that “injunctive relief is the quintessential form of equitable remedy; it does not entitle a plaintiff to a jury trial.” Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019).

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Business litigation often involves disputes between a corporate entity and its equity owners. In Florida, the corporation and the limited liability company are two common types of corporate entities. The owners of a corporation are known as shareholders, and the owners of a limited liability company are known as members. Florida law requires a shareholder or member to show direct harm and special injury to maintain a direct action against the company. Otherwise, the equity holder must pursue their claims derivatively as a shareholder or member to recover damages on behalf of the company. However, “Florida courts also recognize an exception to the [two-prong] test when an individual member or manager owes a ‘specific duty’ to another member or manager apart from the duty owed to the company.” Dinuro Investments, LLC v. Camacho, 141 So. 3d 731 (Fla. 3d DCA 2014). This special duty may arise under contractual or statutory mandates. 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 have recognized that “[t]here are two major, often overlapping exceptions to the general rule that a shareholder cannot sue for injuries to his corporation: (1) where there is a special duty, such as a contractual duty, between the wrongdoer and the shareholder, and (2) where the shareholder suffered an injury separate and distinct from that suffered by the shareholders.” Harrington v. Batchelor, 781 So. 2d 1133 (Fla. 3d DCA 2001). The special duty exception may still apply even if the alleged injury impacted all equity holders in the same way. Florida courts have held that, “[w]here the wrongful acts are not only wrongs against the corporation but are also violations by the wrongdoer of a duty arising from contract or otherwise, and owing directly to the shareholders, individual shareholders can sue in their own right.”

In Harrington v. Batchelor, Florida’s Third District Court of Appeal specifically recognized that “a shareholder can sue [directly] for breach of [a] contract to which he is a party, even if he has not suffered an injury separate and distinct from that suffered by other shareholders.” 781 So. 2d 1133 (Fla. 3d DCA 2001). In Harrington, a shareholder of a bankrupt-airline business brought suit against two other shareholders for breach of shareholder agreement. The plaintiff alleged that one of the shareholders rejected actual offers to buy the company and ultimately failed to use their best efforts to sell the airline. As a result, the plaintiff claimed the shareholders violated the shareholder agreement by causing the airline to enter into transactions that were never submitted to the board of directors for approval. On appeal, Harrington concluded that the suit could be brought individually based on parties’ shareholder agreement, and that there was no need to prove separate and distinct injury.

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The Lanham Act is a federal statute that protects businesses from various types of unfair competition, including trademark infringement. In business litigation, the Lanham Act permits trademark owners to sue other businesses or individuals for violating their trademark rights. To prevail on a claim of trademark infringement, a plaintiff must show: (1) that its marks were entitled to protection, and (2) that the defendant used marks that were either identical with the plaintiff’s marks, or so similar that they were likely to confuse consumers. The “likelihood of confusion occurs when a later user uses a trade-name in a manner which is likely to cause confusion among ordinarily prudent purchasers or prospective purchasers as to the source of the product.” Wreal, LLC v. Amazon.com, Inc., 38 F.4th 114 (11th Cir. 2022). In business litigation, the issue of whether a likelihood of confusion exists is typically a question of fact. 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.

Courts must consider the following factors when determining whether a likelihood of confusion exists with respect to the use of a trade mark:

  • distinctiveness of the mark alleged to have been infringed;
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A prima facie case of discrimination raises the presumption or inference that the employer unlawfully discriminated against the employee. This is because the Court presumes the employer’s “acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). In such a case, the employer must articulate some legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973). When the employer can do so, it will defeat the employee’s claim of discrimination so long as the employee cannot establish that the employer’s proffered reason is merely pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (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 employee bears the ultimate burden of demonstrating that the employer intentionally discriminated against him or her. City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011). As such, where the employer meets its burden of presenting legitimate, nondiscriminatory reasons for the adverse employment action, the employee “must prove that the reasons articled were false and that discrimination was the real reason for the [employer’s] actions.” City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011). Provided that the legitimate, nondiscriminatory reason proffered by the employer “is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). The Court is “not in the business of adjudging whether employment decisions are prudent or fair. Instead, [its] sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

In demonstrating pretext, the employee must create more than “a weak issue of fact” and, instead, has the “ultimate burden” of presenting “significantly probative evidence that the proffered reason is a pretext for discrimination.” Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). In other words, the employee must present “significantly probative evidence” establishing that each and every reason proffered by the employer is “a lie” and that the adverse employment decision was actually motivated by discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The employee “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Goodman v. Georgia Southwestern, 147 Fed. Appx. 888 (11th Cir. 2005). The employee must make this showing by a preponderance of the evidence. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).

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