Trade Secret Misappropriation Lawyer in Boca Raton
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As the world of business becomes fiercer and also increasingly dependent on advanced technologies with every passing generation, more and more employers are relying solely on the trade secrets that make their products or services unique to succeed. Keeping those secrets locked away, however, is also becoming more difficult as digital information eliminates the need for pen and paper. With just one click, a dishonest employee, a prying competitor, or a persuaded third party can take your trade secret and expose it to the rest of the world, or copy it for themselves.
Florida Uniform Trade Secrets Act
Like many states, Florida has adopted the Uniform Trade Secrets Act (UTSA) in sections 688.001-688.009, Florida Statutes. Florida’s UTSA (FUTSA) provides that it shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it. The FUTSA displaces conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret but does not affect:
(a) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(b) Other civil remedies that are not based upon misappropriation of a trade secret; or
(c) Criminal remedies, whether or not based upon misappropriation of a trade secret. The FUTSA sets forth and defines trade secrets and misappropriation, as well as the available remedies for when it occurs.
According to FUTSA, a trade secret is information that:
- Is a formula, pattern, compilation, program, device, method, technique, or process.
- Has economic value – real or potential – because it is not readily available to others, who would use it for profit, through proper channels.
- Has been subjected to reasonable efforts to keep it a secret.
- Is substantial and defined, not vague and unusable.
FUTSA considers that misappropriation has occurred when:
- Someone uses improper means to obtain a trade secret.
- Someone uses the trade secret’s information when they know improper means were used to obtain it.
- Factual support can be used to prove that improper means were utilized.
The definition of “improper means” in this legislation includes:
- Breach of duty to maintain secrecy
- Espionage, physical or digital
What Are Some Common Cases of Misappropriation?
For the most part, cases centered on potential trade secret misappropriation involve an employer accusing a former employee of using improper means to gain economically valuable trade secret information and using it to compete with the former employer or making the trade secret information available to a competitor. On the other hand, the FUTSA can be abused in an effort to stifle completion or to obtain trade secret information from a competitor through the assertion of a claim under the FUTSA. Under the FUTSA,
"if a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney’s fees and costs to the prevailing party."
Initially, actions under the FUTSA focus on whether or not the allegedly taken information qualifies as a trade secret, and whether or not that information was actually used to someone else’s advantage. The party asserting a claim under the FUTSA has the burden of specifically identifying the trade secret at issue so the opposing party knows what claim it is defending.
For example, customer lists are a fairly typical subject of a trade secret misappropriation claim. In the past, such lists would be difficult to create and maintain, and could be locked away in a drawer or cabinet. Based on the ability to utilize technology to obtain information, the names and interests of potential customers is widely available through the internet, capable of being collected by just about anyone and with little effort. Whether a customer list is or is not a trade secret depends on the facts.
Customer lists have been considered trade secrets if the list:
- Took great effort, time, and finances to compile.
- Is actually an intentionally filtered portion of a larger list.
- Includes information kept from the public.
- Is largely comprised of actual past clients, not prospective clients.
Remedies for Misappropriation
Where a trade secret exists that has been misappropriated, there are two primary remedies available under the FUTSA.
- Injunctions: The court may prevent the defendant from continuing to use the trade secret, or it may prevent them from continuing to share the trade secret to others. Interestingly enough, this can stop a party from publishing information freely, which can be seen as a conflict of the Constitution’s First Amendment rights.
- Monetary damages: If the plaintiff can show that they have lost profits due to a misappropriated trade secret, they may be rewarded the actual amounts lost. If the defendant has also seen an increase in profits since the improper means were utilized to gain a trade secret, the court can award that actual profit to the plaintiff. Additionally, punitive damages equal to up to twice the amount of total actual damages can be rewarded if the misappropriation was willful or malicious.
Need a Business Litigation Lawyer?
Whether you believe your trade secrets have been misappropriated through improper means or if you are the one being accused of such actions, your business, your finances, and your reputation could all be on the line. Do not leave matters up to chance by stepping into the legal arena alone and unprepared. Let me, Boca Raton Business Attorney Gregg H. Glickstein, handle your case for you. With more than 35 years of experience and a prestigious AV® Preeminent™ Rating by Martindale-Hubbell®, I know I can find the right solution for you, and you know you can trust in me.
There is no need to hesitate – request your initial case evaluation.