Trade Secret Misappropriation & Preemption Under Florida Law

Non-compete cases often involve a number of different claims.  In many cases, plaintiffs not only seek damages under a breach of contract theory, but also advance numerous other causes of action.  The reasoning is fairly straight-forward:  Throw as many claims as possible into the complaint and see if one of them will stick.   For a number of reasons, I disagree with this strategy.  But many lawyers operate according to this  playbook.

Sometimes, this strategy can fail.  Sometimes, it can even backfire.  Let’s take the specific example of trade secrets.  In Florida, claims for misappropriation of trade secrets are pursued under the Uniform Trade Secrets Act (UTSA).  When a plaintiff pursues a claim for misappropriation of trade secrets, the defendant always should consider the prospect of attacking the other claims based on trade secret preemption.

Section 688.008 of the UTSA provides that the UTSA “displace [s] conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.”  Basically, except for contract claims, where other claims are based on the same facts as the alleged misappropriation, those claims should be preempted.  This means those claims should be dismissed.  Over the past decade or so, Florida courts have used this doctrine of trade secret preemption to dismiss a wide range of claims, including common law claims like conversion, unfair competition or breach of fiduciary duty and statutory claims like those arising under Florida’s Unfair and Deceptive Trade Practices Act.   If you succeed in getting a claim under FUDTPA dismissed, that may entitle you to an award of attorney’s fees for the costs incurred in connection with defending that specific claim.

The takeaway is a pretty simple one:  On the defense side, your goal is to chip away at the complaint.  If the case involves multiple claims and multiple defendants, the goal is to winnow that down.  In non-compete and trade secret cases, trade secret preemption can often help dispose of duplicate claims.  And on the plaintiff’s side:  Pick your claims wisely.  Sometimes less is more.  A court is more likely to appreciate a 3 count complaint where every count sticks than a 7 count complaint where 4 out of the 7 are trash.  What’s more, if one of those claims contains a provision granting attorney’s fees to the prevailing party, you could be setting your client up to pay opposing counsel’s fees.

Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida. His office can be reached at 954-332-2380.