Florida Business Litigation Lawyer Blog

Published on: June 22, 2024

MIAMI BUSINESS LITIGATION: TRADE SECRET “COMPILATION” UPDATE

We previously written about the importance of trade secret “compilations” because a trade secret owner can claim certain information is trade secret even when the information is public. Secrecy is the bedrock to possessing trade secrets because they are defined as information “deriv[ing]] independent economic value… from not being generally known to, and not being readily ascertainable by… other persons… and [i]s the subject of… secrecy [efforts].” Fla. Stat. § 688.002 (emphasis supplied). However, Digiport, Inc. v. Foram Development BFC, LLC, 314 So. 3d 550 (Fla. 3d DCA 2020), teaches us that a unique compilation of public information can qualify as a trade secret so long as the compilation adds value. See also Fla. Stat. § 688.002 (defining trade secrets to include the word “compilation”). The unique compilation warrants trade secret protections because it provides a competitive advantage in the marketplace. The Digiport decision stated in pertinent part that, “‘A trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which in unique combination, affords a competitive advantage and is a protectable secret.’” Therefore, amalgamated information can qualify as a trade secret even if its individual parts do not qualify as trade secret. See Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020) (“Even if [insurance] quotes aren’t trade secrets, taking enough of them must amount to misappropriation of the underlying secret at some point. Otherwise, there would be no substance to trade-secret protections for ‘compilations,’ which the law clearly provides.”). 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 Fourth District Court of Appeal recently affirmed its approach to trade secret compilations in Patient Depot, LLC v. Acadia Enterprises, Inc., 360 So. 3d 399 (Fla. 4th DCA 2023) (Patient Depot). In Patient Depot, the plaintiff was a broker specializing in the sale of personal protective equipment (PPE). The Plaintiff used its twenty years of experience to match customers needing PPE with suppliers ready, willing, and able to sell and deliver PPE rapidly. The plaintiff was in an optimal market position when the pandemic struck and PPE demand soared. The plaintiff hired the defendant as an independent contractor to help sell PPE during the pandemic. The defendant was provided access to the plaintiff’s website platform containing a list of the plaintiff’s viable suppliers, contact information, pricing, contract terms, commission rates, sales representatives, and supply availability. The platform also contained the plaintiff’s customer contacts and purchase history. The plaintiff stored its information on the platform to boost fulfillment speed and processing times thereby providing the plaintiff with a competitive advantage.

The defendant stopped performing sales services for the plaintiff after about nine months and began operating his own PPE broker company. The plaintiff sued claiming the defendant stole his trade secrets, and the defendant moved for summary judgment claiming the plaintiff’s information was not trade secret as a matter of law because it was public knowledge. The defendant supported its argument by providing affidavits and internet searches showing the PPE suppliers’ identities were in the public domain. However, the court rejected the defendant’s argument. Although the PPE suppliers’ identities may have been public, the information contained within the plaintiff’s platform included customer identification, contact information, and order history that was “put together to create a knowledge base which allowed [the plaintiff] to match customers to suppliers and complete orders quickly.” Therefore, the court ruled the plaintiff’s information could constitute a trade secret compilation and allowed the plaintiff to proceed with its claim.

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Published on: June 19, 2024

FORT LAUDERDALE BUSINESS LITIGATION: FORUM SELECTION CLAUSES

By Mavrick Law Firm

Contracting parties may stipulate to a particular forum for resolving future disputes. Am. K-9 Detection Servs., Inc. v. Cicero, 100 So. 3d 236 (Fla. 5th DCA 2012). This is known as a forum selection clause. The clause can be mandatory, which requires the parties to litigate in the particular chosen forum to the exclusion of all other forums, or permissive, which only constitutes consent to a particular forum without excluding all other forums. See World Vacation Travel, S.A. v. Brooker, 799 So. 2d 410 (Fla. 3d DCA 2001) (finding mandatory venue clauses require or unequivocally specify that a particular forum be the exclusive jurisdiction for litigation concerning the contract); Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231 (Fla. 5th DCA 2004) (“A permissive forum selection clause may provide an alternative to the statutory choices of venue but it does not require the plaintiff to file suit in the forum referred to in the agreement.”). Peter Mavrick is a Fort Lauderdale business litigation attorney. 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.

Examples of permissive forum selection clauses are “the Creditor [Paris Bank] may choose to take legal proceedings to the competent Courts of the City of Guatemala” and “Grantor hereby consents to the jurisdiction” of Massachusetts. See Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273 (Fla. 1987); Shoppes Ltd. P’ship v. Conn, 829 So.2d 356 (Fla. 5th DCA 2002). In both examples, the contracting party could bring claims in Guatemala or Massachusetts, but did not have to. Id.

By contrast, the forum selection clause discussed in Ware Else, Inc. v. Ofstein, 856 So.2d 1079 (Fla. 5th DCA 2003) exemplifies a mandatory clause because it clearly limited litigation to Missouri. The clause provided that any litigation “shall have its venue located exclusively” in Missouri. Id. However, one does need to use the word “exclusively” to create a mandatory clause. In Golf Scoring Sys. Unltd., Inc. v. Remedio, 877 So. 2d 827 (Fla. 4th DCA 2004), a provision stating that the “parties hereto consent to Broward County, Florida, as the proper venue for all actions that may be brought pursuant hereto” was held to be mandatory because the word “the” referred to only one forum, to the exclusion of all other forums. Id. It would, nevertheless, be best practice to affirmatively state the selected forum is the only forum suit can be brought if it is your intention to create a mandatory forum selection clause.

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Published on: June 15, 2024

MIAMI BUSINESS LITIGATION: DEFENSES OF EXPRESS AND IMPLIED WAIVER

By Mavrick Law Firm

Waiver is the voluntary relinquishment of a known right. Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). The concept of wavier is important in law because it applies to a wide variety of scenarios. A litigant can waive the right to a term expressed within a contract pre-suit, to bring a claim against another, a jury trial, and many more. Therefore, waiver is a powerful tool that can help or harm a litigant’s position depending the context. However, waiver can be difficult to establish because it is almost always a question of fact. Frisbie v. Carolina Cas. Ins. Co., 103 So. 3d 1011 (Fla. 5th DCA 2012) (“Generally, waiver is a question of fact for the jury”). 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.

Waiver comes in two forms, express and implied. In re Shambow’s Estate, 15 So. 2d 837 (Fla. 1943). Express waiver is usually easier to establish because there must be some overt expression demonstrating the relinquishment of a right. E.g., Driscoll v. O’Reilly, 486 So. 2d 693 (Fla. 4th DCA 1986) (finding that the husband expressly waived the right to modify the settlement agreement because he “agreed that any right to modify said agreement was waived.”). The normal issues in dispute concerning express wavier are whether the right was waivable, whether the waiving party knew about the right he or she was waving, and whether the expression is sufficient to constitute wavier. See, e.g., Hicks v. State, 622 So. 2d 14 (Fla. 5th DCA 1993) (holding that the right to waive a lesser criminal charge in a capital murder case is not waivable); Hall v. Warden, Lee Arrendale State Prison, 686 Fed. Appx. 671 (11th Cir. 2017) (“If her own lawyer did not know that Ms. Hall would be unable to communicate with him during Alyssa’s testimony, he was not equipped to waive her rights, expressly or otherwise.”); Watkins v. Willis, 2023 WL 4614497 (11th Cir. July 19, 2023) (upholding the trial court’s conclusion that the government did not waive sovereign immunity because only an unequivocal expression of waiver could do so).

Implied waiver is more challenging to determine because it is established through the facts and circumstances surrounding the party’s actions or inactions as the case may be. As an example, one can implicitly waive attorney client privilege by testifying about the attorney-client communication; placing an attorney-client relationship in issue, or asserting reliance on an attorney’s advice to defend against a claim. United States v. Lehtinen, 2014 WL 1318661 (S.D. Fla. Jan. 30, 2014). One waives the right to remain silent merely by talking. Berghuis v. Thompkins, 560 U.S. 370 (2010). In both cases, the litigant never states, “I waive my right to attorney client privilege” or “I waive my right to remain silent.” Nevertheless, the litigant’s actions alone are sufficient to constitute wavier.

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Published on: June 12, 2024

FORT LAUDERDALE BUSINESS LITIGATION: RECOVERY OF LOST PROFITS DAMAGES

By Mavrick Law Firm

A party can recover lost profit damages as direct damages or consequential damages. Lost profits, like all damages, are considered direct when they flow directly and immediately from the contractual breach. HCA Health Services of Florida, Inc. v. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d 469 (Fla. 4th DCA 2016). Lost profits are consequential when they arise from losses that were reasonably foreseeable by the breaching party at the time the contract was entered. Keystone Airpark Auth. v. Pipeline Contractors, Inc., 266 So. 3d 1219 (Fla. 1st DCA 2019) (defining consequential damages); Nyquist v. Randall, 819 F.2d 1014 (11th Cir. 1987) (“Lost profits are typically considered to be consequential damages”). Whether direct or consequential, Florida courts developed special rules to recover lost profits. Peter Mavrick is a Fort Lauderdale business litigation attorney. 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.

The first set of rules govern how to calculate lost profits. As the name suggests, the proponent of the damage award cannot merely establish the amount of gross revenues it would have received but for the defendant’s conduct because revenues do not account for expenses associated with generating the profit. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d 469 (“Evidence pertaining to loss of income or gross receipts, without specific evidence concerning expenses, is inadequate to prove lost profits.”). Therefore, the party claiming lost profits must prove the amount of revenues it would have generated and the total amount of expenses that would have been spent generating those revenues. Del Monte Fresh Produce Co. v. Net Results, Inc., 77 So.3d 667 (Fla. 3d DCA 2011). (The proper computation of damages “requires the non-breaching party to deduct from anticipated contract revenue the costs incurred in performing the contractual services.”). For example, the party seeking lost profits would likely have to establish an appropriate allocation of overhead and personnel expenses that would have been incurred in generating the revenue. Id.

The second set of rules pertains to the level of certainty lost profit damages must be established. As a general matter “all damages, cannot be speculative and must be proved with reasonable certainty.” Nebula Glass Intern., Inc. v. Reichhold, Inc., 454 F.3d 1203 (11th Cir. 2006). This can present challenges when pursuing lost profits because “proving lost profits invariably includes some element of prediction about how the market would have behaved but for the defendant’s tortious act or breach.” Id. Although proving lost profits can be difficult, it is by no means impossible. Id.

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Published on: June 8, 2024

MIAMI BUSINESS LITIGATION: PUNITIVE DAMAGES FOR FRAUD

By Mavrick Law Firm

Plaintiffs commonly pursue punitive damages when asserting fraud claims. The purpose of punitive damages is to punish unlawful conduct. State Farm Mut. Auto. Ins. Co. v. Brewer, 191 So. 3d 508 (Fla. 2d DCA 2016). They are available when a defendant commits intentional misconduct or gross negligence. Fla. Stat. § 768.72. Punitive damages are especially relevant in claims involving fraud because the claim necessarily includes intentional misconduct. 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.

A plaintiff must move to amend its complaint to include a claim of punitive damages before it can seek discovery on the issue. Id. The amendment will be allowed if the plaintiff makes a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery” of punitive damages. Id. Subsequently, at trial, the plaintiff must then prove entitlement to punitive damages by clear and convincing evidence. Id.

So what constitutes a reasonable showing of evidence that provides a reasonable basis for punitive damages? Florida case law provides some guidance. The trial court must “make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.” Fed. Insurance Company v. Perlmutter, 376 So. 3d 24 (Fla. 4th DCA 2023). The plaintiff’s evidentiary proffer is “merely a representation of what evidence the defendant proposes to present and is not actual evidence.” Estate of Despain v. Avante Group, Inc., 900 So. 2d 637 (Fla. 5th DCA 2005). However, the analytical framework for making the requisite determination is unclear. Some cases hold that the trial court’s sole role is to review proffered evidence and determine whether a jury could return a punitive damages verdict. Estate of Despain, 800 So. 2d 637 (stating trial court must not weigh the evidence in determining a motion to amend to add punitive damages); Perlmutter, 376 So. 3d 24 (same). Other cases hold that the trial court’s role requires a weighing of the evidence to determine credibility of the proffered evidence. KIS Group, LLC v. Moquin, 263 So. 3d 63 (Fla. 4th DCA 2019) (stating that motion to amend to add punitive damages “necessarily requires the court to weigh the evidence and act as a factfinder”).

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Published on: June 1, 2024

MIAMI BUSINESS LITIGATION: NON-COMPETE AGREEMENTS AND “CONFIDENTIAL INFORMATION”

By Mavrick Law Firm

Under Florida law, enforcement of a non-compete agreement requires requires proof of at least one “legitimate business interest.” 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.”). A failure to plead or prove the existence of a legitimate interest justifying the non-compete covenant can void its enforcement. Id. (“Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.”). Florida’s non-compete statute specifically references a nebulous legitimate business interest called “valuable confidential business…information.” Florida and federal cases interpreting the meaning of the term “valuable confidential business information” have reached different conclusions depending on the factual context. See Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223 (11th Cir. 2009) (“It is unclear under Florida law when confidential information will justify a broad restriction that prevents an employee from working for a competitor.”). 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.

Some courts have determined that a person possesses valuable confidential business information when the employee is in a position to engage in unfair competition against the former employer. See Autonation v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004). For example, in Open Magnetic Imaging, Inc. v. Nieves–Garcia, 826 So.2d 415 (Fla. 3d DCA 2002) (per curiam), Florida’s Third District Court of Appeal held that the defendant’s knowledge about a confidential database created as part of a confidential strategic marketing plan was a legitimate business interest because a competitor hired the defendant as its marketing representative. By contrast, in Austin v. Mid State Fire Equip. of Cent. Florida, Inc., 727 So.2d 1097 (Fla. 5th DCA 1999), the Florida appellate court refused to enforce the non-compete designed to protect pricing information known to the former employee because the former employee was only a technician that did not “set up service runs or set prices.”

Other courts appear to use a slightly higher standard advocated by the drafters of Florida Statue § 542.335, Senator John Grant and Thomas Steele. Senator Grant and Mr. Steele contend courts should look to the definition of threatened misappropriation used in trade secrets law to determine whether a defendant’s knowledge of confidential information justifies a restrictive covenant. See John A. Grant & Thomas Steele, Restrictive Covenants: Florida Returns to the Original “Unfair Competition” Approach to the 21st Century, 70 Fla. B.J. 53 (Nov. 1996) (hereinafter “Grant & Steele”). Under this approach, Valuable Confidential Information exists when disclosure of the information would be inevitable. Id. At least one Florida decision appears to have enforced a restrictive covenant based on the inevitable disclosure theory. See Proudfoot Consulting Co., 576 F. 3d 1223 (citing Fountain v. Hudson Cush–N–Foam Corp., 122 So.2d 232 (Fla.3d DCA 1960) (finding that employee’s “knowledge of the trade secrets would be so entwined with his employment” that “it would seem logical to assume that his employment by a competitor … would eventually result in a disclosure of this information”)).

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Published on: May 29, 2024

FORT LAUDERDALE BUSINESS LITIGATION: INTERPRETING ARBITRATION CONTRACTS

By Mavrick Law Firm

Many business contracts contain arbitration provisions, which often creates a question as to whether the contracting parties must resolve their dispute in arbitration. Florida courts consider three elements when determining whether to enforce a contractual arbitration provision. They are (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). Peter Mavrick is a Fort Lauderdale business litigation attorney. 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.

The second element generally requires further analysis because courts must determine the scope of the arbitration provision to decide if the claims at issue are subject to mandatory arbitration. Airbnb, Inc. v. Doe, 336 So. 3d 698 (Fla. 2022). Arbitration provisions can be narrow or broad depending on the language of the provision. Jackson v. Shakespeare Foundation, Inc., 108 So. 3d 587 (Fla. 2013). Narrow provisions typically contain the phrase, “arising out of.” Id. An example is “all claims arising out of this contact shall be arbitrated.” This type of provision will only require the contracting parties to arbitrate claims bearing a direct relationship to the contract. Id.

Conversely, broad arbitration provisions require contracting parties to arbitrate claims that have a significant relationship to the contract. Id. There must be a contractual nexus between the contract and the claim asserted. Id. In other words, resolution of the claim “requires either reference to, or construction of, a portion of the contract.” Id. Broad arbitration provisions usually contain the phrase “relating to” and often join the narrow phrase “arising out of.” For example, a broad arbitration may be written to state “all claims arising out of or relating to this contact shall be arbitrated.”

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Published on: May 25, 2024

MIAMI BUSINESS LITIGATION: PROVING A TRADE SECRET

By Mavrick Law Firm

Florida and federal statutes generally define a “trade secret” to be information that the owner takes reasonable measures to keep secret and the information derives “independent economic value” from not being generally known to others. Courts ordinarily view the existence of a trade secret as a question of fact. The United States Court of Appeals for the Fifth Circuit, in Lear Siegler, Inc. v. Ark-Ell Springs, Inc., 569 F.2d 286 (5th Cir. 1978), appropriately observed that a trade secret “is one of the most elusive and difficult concepts in the law to define.” In many cases, the existence of a trade secret is not obvious. It requires an ad hoc evaluation of all the surrounding circumstances. Accordingly, the Lear Siegler decision explained that the question of whether certain information constitutes a trade secret typically is best “resolved by a fact finder after full presentation of evidence from each side.” 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 Defend Trade Secrets Act is a federal law that, at 18 U.S.C. section 1893(3), defines trade secret to mean “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patters, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if…(A) the owner thereof has taken reasonable measures to keep such information secret…and (B) the information derives independent economic value, actual or potential, from not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” State trade secret law, called the Uniform Trade Secret Act, has a similar definition of trade secret. In addition, federal and state courts sometimes use six common law factors from the Restatement of Torts to evaluate whether a trade secret exists:

(1) the extent to which the information is known outside of the plaintiff’s business;

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Published on: May 22, 2024

FORT LAUDERDALE BUSINESS LITIGATION: FLORIDA UNIFORM TRANSFER ACT

By Mavrick Law Firm

The Florida Uniform Fraudulent Transfer Act (“FUFTA”) is a powerful tool because it provides creditors with remedies against debtors attempting to conceal assets. Through FUFTA, Florida adopted a Uniform Fraudulent Transfer Act that many states adopted. FUFTA allows creditors to sue debtors trying to avoid paying a debt. Peter Mavrick is a Fort Lauderdale business litigation attorney. 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.

FUFTA provides two different theories for a claim of fraudulent transfer: actual fraud and constructive fraud. The “actual fraud” theory applies when a debtor conveys an asset or accepts an obligation with actual intent to hinder a creditor. Myers v. Brook, 708 So. 2d 607 (Fla. 2d DCA 1998) (citing Fla. Stat. § 726.105). Because actual intent can be difficult to prove, the creditor can establish various “badges of fraud” to demonstrate a debtor’s fraudulent intent. Fla. Stat. § 726.105. These badges can include the following:

Whether the transfer or obligation was to an insider, which includes individuals or business entities related to or associated with the debtor. See Stat. § 726.102(8).

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Published on: May 18, 2024

MIAMI BUSINESS LITIGATION: CONTRACT “LIQUIDATED” DAMAGES

By Mavrick Law Firm

Liquidated damages are determinable with exactness from the cause of action as pleaded by a mathematical calculation or by application of a rule of law. Boulos v. Yung Sheng Xiamen Yong Chem. Indus. Co., 855 So.2d 665 (Fla. 4th DCA 2003). Many contracts contain a liquidated damage provision that attempts to ascribe an automatic amount of damage owed to the non-breaching party in the event of a breach. RKR Motors, Inc. v. Associated Unif. Rental & Linen Supply, Inc., 995 So. 2d 588 (Fla. 3d DCA 2008) (“A liquidated damages provision is a clause in a contract that determines in advance the measure of damages in the event of a contractual breach.”). Florida law permits these types of provisions. Goldblatt v. C.P. Motion, Inc., 77 So. 3d 798 (Fla. 3d DCA 2011) (“Florida law is well settled that the parties to a contract may stipulate in advance the amount that is to be paid or retained as liquidated damages in the event of a contract breach.”). 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.

Liquidated damages provisions are not always enforceable. To be enforceable, a liquidated damages clause must satisfy two conditions:

First, the damages consequent upon a breach must not be readily ascertainable.

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