Florida Trade Secrets Lawyers
Pollard PLLC represents businesses and entrepreneurs who have had their trade secrets misappropriated as well as individuals and competing companies that stand accused of theft of trade secrets. The firm has significant experience litigating and resolving trade secret disputes in numerous industries, including medicine, software, construction, transportation and more. The firm’s principal, Jonathan Pollard, is routinely quoted in state and national media on trade secret issues and has taught continuing legal education courses on trade secret litigation to other attorneys. Some of our recent representations include:
- American Registry vs. Hanaw et al, Case No. 2:13-cv-00352 (MDFL 2013): This case involved a dispute between two rivals in the award plaque industry. We represented the defendants. Hanaw worked for American Registry before leaving the company to start his own competing venture. He did not have a non-compete agreement but did sign a non-disclosure agreement. After Hanaw established his own company, American Registry sued Hanaw, his new companies and a business partner. The plaintiff alleged that Hanaw had breached his non-disclosure agreement and misappropriated a litany of corporate trade secrets. We successfully obtained dismissal of an early complaint for failure to state a claim under Twombly. Plaintiff then refiled its complaint with slightly more detail. After litigating the case for more than a year and a half, the case was dismissed with prejudice and judgement was entered in favor of the defendants.
- Generic Solution Engineering, LLC v. Evans et. al., Case No. 2014-31540 (FL 7th Judicial Circuit – Volusia County): We represented the defendants in this matter. This case pits a software development company against two former independent contractors and their new company. After the trial court entered an injunction, we appealed to Florida 5th DCA. The appellate court vacated the injunction. After more than a year and a half of litigation, we moved for and obtained partial summary judgment. The case then settled on the brink of trial.
- Lucky Cousins Trucking vs. QC Energy Resources, et al, Case No. 8:16-cv-00866 (Middle District of Florida): We represent the plaintiff / counter-defendant Lucky Cousins. The case involves two companies in the energy hauling space. Lucky Cousins formerly was a sub-hauler for QC Energy Resources (“QCER”). The relationship went south. Lucky sued QCER for a variety of claims stemming from the parties failed business relationship including fraud, breach of contract, defamation and a claim for a declaratory judgment holding a non-compete agreement unenforceable. QCER countersued for breach of a non-compete agreement, breach of contract, tortious interference and theft of trade secrets. QCER moved to dismiss Lucky’s claims. The court denied that motion. QCER then moved for a preliminary injunction. The court denied that motion. QCER then moved for reconsideration on the denial of its request for an injunction. The court denied that motion. The case remains pending.
- ASI Holding Company v. Abreu et al, Case No. 2013 CA 4103 (Okaloosa County, FL) and 3:16-cv-00463 (Northern District of Florida): We took over representation of the defendants in this trade secret case more than two years after the original complaint was filed. The case involves a hotel amenities provider and a rival company founded by the plaintiff’s former employees. The corporate defendant declared Chapter 11 bankruptcy in federal court in South Carolina, where the corporate defendant is based. After the bankruptcy filing, the case was removed to the NDFL under bankruptcy rules. The case remains pending.
If you are faced with the prospect of initiating trade secret litigation or defending against claims of trade secret misappropriation anywhere in the state of Florida, contact our office. We have extensive experience litigating trade secret claims throughout the state and are licensed in all Florida state and federal courts, including the United States District Courts for the Southern, Middle and Northern Districts of Florida. To speak with an experienced Florida trade secret lawyer about your case, call our office.
Fort Lauderdale, Florida Trade Secrets Attorney 954-332-2380
When people think of intellectual property, they often think of patents. But trade secrets often represent a company’s most valuable assets. The Uniform Trade Secrets Act defines a trade secret as:
- Information, including a formula, pattern, compilation, program, device, method, technique, or process
- That derives independent economic value from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
- Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Given this broad definition, almost every operational business possesses trade secrets that are vital to the success of the company. If a competitor or third party obtained and used those trade secrets, it could cause irreparable harm to the business.
Trade Secrets – Classic Examples
For instance, customer lists often feature prominently in trade secret litigation. Although the identity of an individual customer, standing alone, would not constitute a trade secret, a database containing customer names and variety of customer information certainly could. Beyond customer lists or databases, other frequently litigated trade secrets include things like business plans, market research and blueprints or patterns. A recent case involving the athletic apparel giant Nike provides a great example: There, there trade secrets at issue involved a variety of Nike’s business plans and market research: This included plans for new shoes, shoe designs and manufacturing data and market research and sales forecasts. This is a textbook example of trade secrets.
Trade Secrets – Defining Misappropriation
Theft of trade secrets is referred to as misappropriation. In many instances, misappropriation of trade secret cases arise out of an employment relationship. An individual works for a company and has access to certain trade secrets. That employee then leaves the company to work for a competitor. In some instances, the employee has actively misappropriated trade secrets and taken them with him. In the modern world, the misappropriation often occurs electronically, via the employee downloading corporate information to an external hard drive or emailing corporate materials to a personal email address.
But even where there is no evidence of active misappropriation, Plaintiffs can still pursue trade secret claims under the doctrine of inevitable disclosure. Once again, this arises in the employment context: An individual works for a company and has access to trade secrets, then leaves to work for a competitor. Even if there is no evidence of actual misappropriation, plaintiffs can sometimes pursue trade secret claims by arguing that the individual would inevitably disclosure or use those trade secrets in his new position.
Florida, like many states, has adopted the Uniform Trade Secrets Act. The Florida Uniform Trade Secrets Act (“FUTSA”) prohibits the misappropriation of trade secrets and provides for both damages and injunctive relief. Fla. Stat. § 688.002 generally prohibits misappropriation, which it defines as (i) 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 (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake.
When one has acquired knowledge of a trade secret by reason of a confidential business relationship with the holder of the trade secret, he can be enjoined from improperly using or disclosing it. Injunctions powerful tool- can be enjoined from disclosure, enjoined from working for a competitor or enjoined from doing business with certain customers. In many instances, particularly in Florida, trade secret claims are litigated in concert with claims for violations of a non-compete agreement or other restrictive covenant.
Strategic Considerations in Trade Secret Litigation
Trade Secrets & Jurisdiction
Federal Court: If diversity exists, filing or removing to federal court is a no brainer. But where diversity is absent, plaintiffs still may be able to force the case into federal court if they also have a federal cause of action. In this scenario, the plaintiff files in federal court for their federal cause of action and brings the Florida Uniform Trade Secrets Act (“FUTSA”) claim as a pendant state law claim.
Minefields: Many trade secret (and non-compete) plaintiffs who take this route into federal court do so by filing a claim under the Computer Fraud and Abuse Act (“CFAA”) 18 U.S.C. §§ 1030(a) et seq. This often backfires. The CFAA is very narrow: It provides a cause of action based on unauthorized access. If an employee legitimately has access to a company’s computer systems but uses that access to misappropriate trade secrets, that does not give rise to a claim under the CFAA. Plaintiffs who file an improvident CFAA claim in federal court as a way to secure federal jurisdiction over pendant trade secret claims often face this consequence: The court dismisses the CFAA claim, declines to exercise continuing pendant jurisdiction over the state law claims (i.e. trade secret claim) and kicks the entire case. This has happened in a number of recent cases.
State Court: If a plaintiff cannot bring the case in federal court due to lack or diversity or lack of plausible federal causes of action, the plaintiff should venue shop for an advantageous venue. Certain counties in Florida have a specific circuit court division dedicated to complex and/or business litigation. Examples: Broward, Miami-Dade, Hillsborough. Each circuit that has a complex litigation court has specific rules for admission to that division. Generally, these rules provide that trade secret cases can be pursued in the complex litigation court.
The Doctrine: The inevitable disclosure doctrine essentially was created by the Seventh Circuit in PepsiCo v. Redmond, 54 F.3d 1262 (7th Cir. 1995). From the time Redmond was decided and for perhaps the next ten years, it was the heyday of inevitable disclosure. A number of courts throughout the country followed suit and adopted some form of the inevitable disclosure doctrine. In my view, the tide has turned. Washington recently rejected the inevitable disclosure doctrine in an important case involving Amazon and Google. And courts in other states like North Carolina and Georgia have issued decisions criticizing the doctrine and strongly limiting its applicability.
Current Status in Florida: Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1326, 1336 (S.D. Fla. 2001) remains the seminal case on inevitable disclosure. Per Del Monte, Florida courts have never adopted (nor embraced) inevitable disclosure in a pure trade secrets context.
Inevitable Disclosure & Non-Compete Agreements: When a non-compete agreement is present, courts routinely apply a variant of the inevitable disclosure doctrine. If an individual leaves one company under a non-compete agreement and begins working for a competitor, Florida courts routinely enjoin that individual if he had access to confidential information. Courts generally do not require any showing that disclosure of the confidential information/trade secrets would be inevitable. In effect, they presume inevitable disclosure without addressing the doctrine by name.
General Principle: A plaintiff must allege the plaintiff possessed secret information and took reasonable steps to protect its secrecy. See Fla. Stat. § 688.002. Recent decisions reaffirm the importance of taking (and pleading) reasonable steps to protect secrecy. Though not dispositive, the absence of a written non-disclosure agreement is relevant to assessing whether a plaintiff took reasonably available steps to preserve secrecy.
Disclosure to Others: Trade secret protection is eviscerated when otherwise protected information is disclosed to individuals who have no obligation to protect its confidentiality.
Suing for Theft of Trade Secrets?
Before any plaintiff files a lawsuit for theft of trade secrets in the state of Florida, they should read this extensive discussion about the best strategy for pursuing a theft of trade secrets claims.
Learn More About Jonathan Pollard- Florida Trade Secret Lawyer
To read about recent developments in non-compete litigation and trade secret litigation, visit Jonathan’s the non-compete blog, or check out these links:
Jonathan’s commentary in Digital Guardian about the threat of insiders and employees going rogue.
A recent story from the National Federation of Independent Business quoting Jonathan on the danger of bad non-compete advice.
A story from the Tampa Bay Times quoting Jonathan about a non-compete case pitting a prominent chef against her former restaurant.
Jonathan’s article about the intersection between non-compete and trademark, which was reprinted by the main newswire for business lawyers, Law360