Trade Secrets

Generally, a trade secret allows a person or company to protect a formula, pattern, compilation, program, or technique that is confidential and derives economic benefit to said person or company from not being generally known.  Recently, in May 11, 2016, the Federal government has codified a Federal trade secret cause of action under the "Defend Trade Secrets Act" (DTSA), 18 U.S.C. § 1836.   Said another way, the DTSA enables an owner of a trade secret to bring a Federal cause of action when a person or company misappropriates a protectable trade secret.  Florida, like many other states, has also codified a statutory cause of action, Fla. Stat. § 688.002, for the misappropriation of a trade secret.

The DTSA defines misappropriation in several ways, including the "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 when one "disclos[es]" or "use[s]" another's trade secret without the consent of the trade secret owner.  A Federal trade secret claim under the DTSA may be brought for misappropriation of a trade secret occurring before May 11, 2016, if said misappropriation also continues to occur after May 11, 2016.  The DTSA also does not preempt or displace any other remedies, whether civil or criminal, provided for under any state laws.  As such, an action for trade secret misappropriation may also be brought under Florida law.

In Florida, a trade secret is defined as information, including a formula, pattern, compilation, program, device, method, technique, or process that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

- Fla. Stat. § 688.002

In order for a trade secret claim to be actionable, generally, the trade secret has to be misappropriated.  In Florida, "misappropriation" is defined as:

(a) 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
(b) Disclosure or use of a trade secret of another without express or implied consent by a person who:
1. Used improper means to acquire knowledge of the trade secret; or
2. At the time of disclosure or use, knew or had reason to know that her or his knowledge of the trade secret was:
a. Derived from or through a person who had utilized improper means to acquire it;
b. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
c. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
3. Before a material change of her or his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake

" rel="media3041998089559175" width="150" height="100" style="font-weight:bold">- Fla. Stat. § 688.002

Some examples potentially protectable trade secrets may include:

1. Recipes
2. Computer codes
3. Customer/Supplier lists

Generally speaking, any business that has confidential business information providing that business a competitive advantage from said information not being generally known, may have trade secret protection for said information.  To be sure, that information has to be subject to confidentiality safeguards among any individuals exposed to said information.  If that information is misappropriated by said individuals, and/or a business entity or third party receiving said information from said individuals, then the owner of the trade secret will likely have recourse against the misappropriating parties.  Some recourse may include injunctive relief, lost profits, a reasonable royalty, attorneys' fees, and enhanced damages if the misappropriation is willful and malicious.  The unauthorized use of such information by persons other than the holder or owner of a trade secret may also be regarded as an unfair trade practice, in addition to just a violation of the trade secret.  In addition to the above examples, trade secrets may also encompass manufacturing or industrial secrets and commercial secrets.
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