Category Archives: Trade Secrets

Reinforcing Florida Employers’ Ability to Protect Valuable Business Relationships

Florida employers and their attorneys received good news in September when the Florida Supreme Court finally issued its opinion in White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017). At issue in White, was whether referral sources could constitute protectable legitimate interests under Florida Statute s. 542.335. The Florida Supreme Court answered this question in the affirmative, holding that referral sources can be protectable interests sufficient to support a restrictive covenant in a non-compete/non-solicitation agreement.

For more information on how employers can protect their valuable information and business relationships see our previous post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Protecting Your Valuable Business Information and Relationships

When survey after survey of America’s workforce confirms that a large majority of employees admit to taking data from their current or former employers without permission, safeguards to protect proprietary and confidential information, including trade secrets, become a priority. The loss of corporate data can be devastating. When a former employee or former business owner solicits business contacts or employees, the results can be equally damaging. In today’s highly competitive marketplace, it is essential for businesses to have a well-developed plan in place to protect corporate data and business relationships. Such plans should employ several tools, including, but not limited to, appropriate security safeguards, confidentiality policies, and agreements containing restrictive covenants.

As discussed in a May 2016 blog post, a federal civil remedy became law and employers no longer are limited to state court remedies to combat a misappropriation of trade secrets.

Restrictive Covenants in Florida – In Florida, a business can use restrictive covenants to obtain a promise from an employee, independent contractor, officer, agent, or even a seller of an acquired business not to engage in any behavior contrary to its business interests. Certain restrictive covenants protect specific interests. For example, a covenant “not to compete” is generally a promise that the employee, independent contractor, officer, agent, or seller will not be involved, in any capacity, in a competitive business in a certain geographic area for a certain time period. Other restrictive covenants include covenants “not to solicit” the employer’s customers, clients, donors, or current employees and covenants “not to disclose” the employer’s confidential business information.

Enforcement of restrictive covenants in Florida is governed by statute. The current statute provides that the enforcement of contracts that restrict or bar competition is permitted as long as the restrictions are reasonable in time, area, and line of business. Additionally, the contracts must be in writing and signed by the persons agreeing to the restrictions. To enforce a restrictive covenant, a business must be able to demonstrate that the covenant it seeks to enforce was based on the need to protect a “legitimate business interest(s)” and that the contractual restraint is reasonably necessary to protect such interests. Florida courts deem restrictive covenants not supported by a legitimate business interest to be unenforceable. In determining whether a restrictive covenant is properly supported, Florida courts may not take into consideration the relative hardship the enforcement of a restrictive covenant would have on the person against whom enforcement of the agreement is sought.

To read more on restrictive covenants, Florida’s Uniform Trade Secrets Act, and best practices for protecting information and relationships see the full article in Williams Parker’s recently published edition of Requisite, a firm publication offering insights on important legal issues. Additionally, you may view the digital version of Requisite in its entirety for more articles on topics critical to senior executives in managing their businesses and the associated risks.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

A New Tool in the Arsenal to Protect Trade Secrets

Up until recently, Florida businesses had to rely on state laws to obtain remedies, including injunctive relief, when an employee or competitor misappropriated trade secrets. This changed on May 11, 2016, when President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”), which creates a federal civil remedy for the misappropriation of trade secrets. Previously, Florida businesses have relied on restrictive covenants and the Florida Uniform Trade Secrets Act (“FUTSA”) to seek legal recourse. Similar to the FUTSA, the DTSA provides a civil legal remedy for businesses whose trade secrets have been misappropriated. However, there are several provisions in the DTSA for which there is not a similar counterpart in FUTSA.  For instance, this federal statute provides for ex-parte orders directing the seizure of the trade secret. This civil seizure remedy, available only in extraordinary cases, is intended to prevent the dissemination or use of the trade secrets. The DTSA does not preempt state trade secret laws, however. Thus, Florida businesses may now seek civil remedies under both state and federal statutes and, if claims under state and federal law are brought in one suit, such claims may be brought in either state or federal court.

The full text of the new law can be found at:
https://www.congress.gov/114/bills/s1890/BILLS-114s1890enr.pdf

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558