Does Florida's trade secret statute wipe out our confidentiality clause, or does the NDA still do work?
The NDA still does work. Fla. Stat. § 688.008(1) provides that the Florida Uniform Trade Secrets Act (§§ 688.001-688.009) displaces conflicting tort, restitutory and other law of this state providing civil remedies for misappropriation of a trade secret, but § 688.008(2) expressly preserves contractual remedies, whether or not based upon misappropriation of a trade secret, other civil remedies not based on misappropriation, and criminal remedies.
The trap
The displacement provision reaches tort, restitutory and other civil-remedy law 'for misappropriation of a trade secret' (the theories a plaintiff typically pleads alongside the contract claim), while § 688.008(2)(a) leaves contractual remedies untouched. How far the displacement reaches is therefore the reach of two defined terms, not one: 'misappropriation' in § 688.002(2) is built on 'improper means', which § 688.002(1) defines as including theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Drafting consequence: define the protected material in the contract without leaning on the statutory definition in § 688.002(4) (information that derives independent economic value from not being generally known and not being readily ascertainable by proper means, AND is the subject of efforts reasonable under the circumstances to maintain its secrecy), so the contract claim does not depend on proving statutory trade-secret status. That matters because whether something is a trade secret is litigated as a question of fact, which means a misappropriation case can survive summary judgment and still take a trial to decide. On how far the displacement reaches particular non-contract counts, no Florida Supreme Court decision was found at all. The authorities checked do include a Third District Court of Appeal decision holding a common-law misappropriation-of-an-idea count preempted by the Act while the statutory trade-secret count went back for trial, so the displacement does real work on non-contract theories at the district level.
6 authorities
- statuteFla. Stat. § 688.008enactment date not established
The words that state the rule
(1) Except as provided in subsection (2), ss. 688.001-688.009 displace conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.
- statuteFla. Stat. § 688.008enactment date not established
The words that state the rule
(2) This act 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.
- statuteFla. Stat. § 688.002enactment date not established
The words that state the rule
(4) “Trade secret” means 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.
- statuteFla. Stat. § 688.002enactment date not established
The words that state the rule
(2) “Misappropriation” means:(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.
- caseNo. 3D18-1651Digiport, Inc. v. Foram Development BFC, LLCFla. 3d DCAdecided 2020-12-16
The words that state the rule
Digiport, Inc. and Data Centers Worldwide, Inc. (collectively, “Digiport”) appeal from a final summary judgment in favor of Foram Development BFC, LLC and its nine affiliated entities 1 (collectively, “Foram Group”), in this lawsuit for misappropriation of a trade secret under the Florida Uniform Trade Secret Act (“FUTSA”), misappropriation of an idea, and violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”). Although Digiport’s common law claim is preempted by FUTSA, 2 whether Digiport’s business concept constitutes a trade secret is a question of fact. See Poet Theatricals Marine, LLC v. Celebrity Cruises, Inc., 45 Fla. L. Weekly D2275, D2275 (Fla. 3d DCA Oct. 7, 2020). Thus, we affirm in part and reverse in part.
- statuteFla. Stat. § 688.002enactment date not established
The words that state the rule
688.002 Definitions.—As used in ss. 688.001-688.009, unless the context requires otherwise: (1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.