The Florida Bar
www.floridabar.org
The Florida Bar Journal
June, 2013 Volume 87, No. 6
Winning Trade Secrets Claims: When and How the Preemption Provision of Florida’s Uniform Trade Secrets Act Applies

by Leonard K. Samuels and Steven D. Weber

Page 86

The theft of trade secrets is estimated to have caused more than $300 billion in losses in 2012. Even more alarming, theft of trade secrets will only rise due to, among other things, industry competition, financial incentive, and the susceptibility of trade secrets to computer hacking. As a result, protecting existing trade secrets is crucial — as is taking action when those trade secrets are misappropriated. Florida practitioners must understand how to properly pursue and protect against claims related to the theft of trade secrets.

The Florida Legislature enacted Florida’s Uniform Trade Secrets Act (FUTSA) in order to provide rights and remedies related to the misappropriation of trade secrets. It additionally contains a provision whereby it preempts certain common law claims. This article first examines whether any preemption argument may properly be raised on a motion to dismiss or on a motion for summary judgment. Second, it explores the circumstances under which the preemption provision applies. While the act’s title suggests that the law related to trade secrets is uniform, in reality it is anything but. Florida courts, like other courts in the United States, are simply not clear on when the preemption argument should be raised and what claims are preempted.

Introduction to UTSA and FUTSA
The Uniform Trade Secrets Act (UTSA) was completed by the uniform law commissioners in 1979 to codify and make uniform the law regarding theft of trade secrets. Prior to UTSA, litigants relied on common law claims to enforce rights and pursue remedies related to the theft of trade secrets. Those common law claims include breach of contract, breach of fiduciary duty, conversion, fraud, unjust enrichment, common law theft of trade secrets, and others. Such claims led to a hodgepodge of legal rights and remedies related to the theft of trade secrets. UTSA was introduced in 1979 to make that law uniform. Indeed, UTSA 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.”1

UTSA has been adopted by 46 states.2 Florida adopted UTSA in its entirety in 1988, including the 1985 amendments to UTSA at F.S. §688.001-688.009.

Under FUTSA, a trade secret is defined as 1) information, 2) that derives economic value from not being generally known or ascertainable, and 3) is subject to efforts to maintain its secrecy.3 FUTSA requires courts to protect the secrecy of trade secrets during litigation through the use of protective orders and other measures.4

“Misappropriation” is defined by the act as 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.”5 “Improper means” is defined to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.”6 Misappropriation may extend not only to the person who has misappropriated the trade secret, but additionally to anyone who has acquired the trade secret and “who knows or has reason to know that the trade secret was acquired by improper means.”7 Misappropriation may include simply disclosing a trade secret.8

The act makes available both damages and injunctive relief as remedies for theft of trade secrets.9 Damages allowed under FUTSA may include any actual loss caused by the misappropriation. Additionally, FUTSA damages may include any unjust enrichment accruing to the person who misappropriated the trade secret.10 A court may also award exemplary damages. However, any amount awarded under exemplary damages may not exceed the amount that is awarded by the court in damages under another allowable category.11 Injunctive relief may also be obtained for, among other things, “actual or threatened misappropriation.”12 Importantly, and as discussed below, at least one court has utilized the FUTSA damages provision to determine whether common law claims are preempted by the act.

The Preemption Provision
Although FUTSA was intended to codify and make uniform the rights and remedies related to the theft of trade secrets, it has not been applied in a uniform manner. One area in which this confusion has manifested is FUTSA’s preemption provision.

The preemption provision, F.S. §688.008, as amended in 1985, displaces certain common law claims. It provides in whole:

(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.

(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.13

What is immediately clear is that not all civil remedies have been preempted by FUTSA. However, some claims are more plainly excused from the scope of the preemption provision than others. Contractual remedies and criminal remedies are explicitly excluded from the effect of the preemption provision, regardless of whether they are based upon misappropriation of a trade secret. Yet, the remaining claims preempted by the act are not identified. FUTSA merely states that it displaces “conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.” Additionally, the preemption provision does not apply to “civil remedies that are not based upon misappropriation of a trade secret.” Defining the limits of the preemption provision has proven challenging for Florida courts.

When to Assert Preemption Under FUTSA
Courts are split as to the proper time to assert the preemption argument and whether application of the preemption provision must await a determination that the subject information is a trade secret. This issue most frequently arises when preemption is asserted by a motion to dismiss, prior to any judicial determination that the information is a trade secret.

Some courts find that preemption may be decided on a motion to dismiss prior to any determination by the court that the information at issue qualifies as a trade secret. Other courts find that any preemption argument is properly made at the summary judgment stage because any preemption decision must await a determination that the subject of the claims is actually a trade secret, and not some other form of information. FUTSA’s plain language supports both views.

The view that the preemption provision is only proper after a determination that the subject is a trade secret under FUTSA relies on a strict interpretation of the preemption provision’s language, with emphasis on the word “trade secret.” That language states that FUTSA “displace[s] conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.” Simply put, under this interpretation, the preemption provision only applies when there is “misappropriation of a trade secret” (emphasis added). Therefore, application of the preemption provision first requires a determination that the subject information actually qualifies as a trade secret. Courts applying the preemption provision in this way, therefore, will deny a motion to dismiss that asserts preemption as a defense and find that preemption is properly asserted at summary judgment whereby a determination can be made whether the information qualifies as a trade secret. One reason that courts may adhere to this view is that dismissal of claims before a determination that the subject is a trade secret may leave the holders of trade secrets without any remedy for misappropriation.

Other courts find preemption is properly determined on a motion to dismiss. These courts also find support from the plain text of FUTSA. Under this interpretation, the preemption provision applies to any “tort, restitutory, and other law of this state” that may also provide “civil remedies for misappropriation of trade secrets.” Simply put, if a remedy can be had under a cause of action for the misappropriation of a trade secret, then that claim may be properly preempted, and it is unnecessary to determine if the subject matter is a trade secret under FUTSA. Additionally, allowing preemption to be determined on a motion to dismiss obviates the need for costly discovery and limits the use of judicial resources. A majority of courts have, therefore, decided that it is proper to determine application of the preemption provision on a motion to dismiss.14

Notably, there does not appear to be any Florida state court decision that expressly states whether preemption is properly decided on a motion to dismiss or on a motion for summary judgment. Nor has the 11th Circuit Court of Appeals decided this issue. This issue under the act has largely been confronted by the federal district courts.

Indeed, it appears one of the first courts to confront the proper time to determine application of FUTSA’s preemption provision was not even a Florida court. In Coulter Corp. v. Leinert, 869 F. Supp. 732, 734 (E.D. Mo. 1994), the court considered, on a motion to dismiss, application of the preemption provision in the context of the plaintiff’s allegations that the defendant “misappropriated trade secrets and later transferred the trade secrets and confidential and proprietary information to third parties for personal gain, in violation of contractual obligations, common law duties, and various statutes.”15 In doing so, the court noted “the absence of Florida jurisprudence on the scope and applicability of [the preemption provision].” Although the court did not explicitly address the proper time to decide preemption, the court nonetheless decided on the motion to dismiss that at least some of the asserted claims were preempted, without any determination that the information at issue was actually a FUTSA trade secret.

Since Coulter, multiple Florida federal district courts have decided preemption on a motion to dismiss.16

Nonetheless, in Healthcare Appraisers, Inc. v. Healthcare FMV Advisors, LLC, 2011 WL 4591960 (S.D. Fla. Sept. 30, 2011), the court denied a motion to dismiss asserting preemption and explicitly ruled that preemption was properly determined on summary judgment, after a determination that the subject was a trade secret. In Healthcare, the plaintiff alleged that the subject information was a trade secret and asserted a claim for, among other things, unjust enrichment and misappropriation of a trade secret in violation of FUTSA. The defendant moved to dismiss the unjust enrichment claim on the grounds that it was preempted by FUTSA. The Healthcare court denied the defendants’ preemption argument as that argument was “premature.” Specifically, the court found that preemption would not apply if it was “determined at a later time that there are no trade secrets,” even though the plaintiff plead the existence of a trade secret in its complaint. The court stated that the preemption argument “is more properly asserted at summary judgment.”

Although not expressly cited in support of its finding that a preemption determination is premature on a motion to dismiss, the court in Healthcare cited to the 11th Circuit Court of Appeals’ decision in Penalty Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003). In a parenthetical, the court summarized that decision, with emphasis in the original, as follows: “in the context of a summary judgment, the plaintiff’s alternatively pleaded civil remedies were preempted under Georgia UTSA where the plaintiff successfully established the information was misappropriated.”

The emphasis placed by the court appears to indicate that the procedural posture in Penalty Kick was the basis for the court’s finding. However, there is no finding in Penalty Kick, which analyzed Georgia’s Trade Secrets Act, that preemption is more properly determined on summary judgment than on a motion to dismiss. Instead, the preemption issue was merely raised to the 11th Circuit after a decision on a motion for summary judgment.

Due to the above case law, there remains substantial uncertainty as to when preemption under the act is to be decided on a motion to dismiss or on summary judgment. A majority of Florida federal district courts have determined preemption in response to a motion to dismiss. Currently, only one Florida court has determined that preemption is properly determined at summary judgment, after a determination that the information is a trade secret under FUTSA.

The Application of the FUTSA Preemption Provision
In addition to the lack of uniformity with regard to when the preemption argument is to be asserted, there has been limited instruction on how the FUTSA preemption provision applies. Indeed, the only Florida state court, in All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So. 2d 363, 367 (Fla. 5th DCA 1999), that appears to have referenced the issue, without needing to consider the issue fully, simply stated, without discussion, that “Florida’s Uniform Trade Secrets Act displaces tort law regarding trade secret misappropriation.”

Fortunately, the 11th Circuit has provided at least some guidance on how to apply the preemption provision — albeit under Georgia law. In Penalty Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003), the 11th Circuit considered, among other things, if claims for conversion, breach of confidential relationship and duty of good faith, unjust enrichment, and quantum meruit were superseded by Georgia’s Trade Secrets Act (GTSA). At the time, GTSA was in the pre-1985 format, but the preemption provision was nonetheless substantially similar to that of FUTSA. Relying on the only Georgia state appellate opinion to address preemption under GTSA, the 11th Circuit sought to determine whether the claims were “based upon a trade secret.” Although the plaintiff argued that his claims for conversion, breach of confidential relationship and duty of good faith, unjust enrichment, and quantum meruit were distinct theories of relief that did not require a trade secret allegation, the circuit found that each of the plaintiff’s claims relied entirely on the same “facts that comprise the trade secret misappropriation claim.” The 11th Circuit, therefore, found that those claims were “based” upon a trade secret and were preempted by GTSA.

At least some courts have categorized the test applied by the 11th Circuit in Penalty Kick to determine preemption under GTSA as the “field displacement test.”17 Under such a test, the preemption provision broadly preempts any and all state laws that deal with information that may be subject to FUTSA, except those specifically exempted. However, courts considering preemption under FUTSA do not appear to utilize such a test.

One of the first reported decisions that appears to address this issue under Florida law is Coulter. In Coulter, the court relied on the plain language of FUTSA to determine that the only claims that are preempted are those that are “based upon misappropriation of a trade secret.” The court then looked at “whether the allegations of trade secret misappropriation alone comprise the underlying wrong.” First, the court found that claims of unfair competition and accounting were preempted because “the only wrong alleged by plaintiff centers on misappropriation of trade secrets.” Second, the court found that a claim of breach of common law duties was not preempted because, inter alia, it included allegations beyond trade secrets and alleged that the defendant misappropriated “confidential business information and removed some of plaintiff’s documents.” Accordingly, because the allegations for those claims did not solely concern trade secrets, they were not preempted.

The court in Coulter appears to have determined preemption based on what some have termed a “common nucleus test”18 — analyzing the similarity of the underlying facts which give rise to the common law claim to those facts which give rise to a trade secrets claim under FUTSA and finding the common law claim is not preempted when those facts are sufficiently different from a claim under FUTSA. The commonality of the underlying facts of the claims considered in Coulter appeared to have been decisive because state law claims were preempted when “the only wrong alleged by plaintiff centers on misappropriation of trade secrets” and not preempted when “plaintiff’s claim of breach of common law duties includes allegations beyond disclosure of trade secrets.”

Application of the preemption provision was again considered by Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329, 1335-36 (S.D. Fla. 2002). Relying on Coulter, the court in Allegiance interpreted the preemption provision to preempt claims when “allegations of trade secret misappropriation alone comprise the underlying wrong.” After comparing the plaintiff’s trade secret claim and unfair competition claim, the court found that the unfair competition claim was preempted, even though it did not solely comprise of allegations regarding trade secrets. Instead, because the allegation asserted in the trade secret claim was virtually identical to the unfair competition claim,19 the court found that the “[p]laintiff has not identified any material distinction between the wrongdoing alleged in the trade secret claim and that alleged in the unfair competition claim.” Therefore, even though allegations of misappropriation of trade secrets were not the sole basis of the claim, the claim was preempted because it appeared to be based on the exact same set of facts, which appears to be another application of a “common nucleus” test.

The “common nucleus” test also appears to have been followed in American Honda Motor Company, Inc. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1181 (M.D. Fla. 2005), and Alphamed Pharmaceuticals Corporation v. Arriva Pharmaceuticals, Inc., 391 F. Supp. 2d 1148 (S.D. Fla. 2005). In both cases, the courts engaged in a detailed analysis of the factual allegations and considered “whether allegations of trade secret misappropriation alone comprise the underlying wrong; if so, the cause of action is barred by [the preemption provision].”

First, in Honda, even though the allegations of the common law claims “relate[d] to the misappropriation of trade secrets,” the court found that they were not preempted because there were “material distinctions” such that those claims were not “entirely dependent upon the FUTSA claim.” Specifically, the common law claims contained additional allegations that the “[p]laintiff intentionally induced the [d]efendants to abstain from contracting with other business entities.”20 Therefore, under the “common nucleus test,” the claims were not preempted because they did not share the same underlying facts — in this case, the common law claims contained an additional factual allegation unrelated to the misappropriation of trade secrets.

Similarly, in Alphamed, the court found that the plaintiff’s common law claim of unfair competition was not preempted because even though that claim alleged some of the same general common factual allegations as a misappropriation of trade secrets claim, it did not “specifically allege that the misappropriation of trade secrets forms the basis of the unfair competition claim.”21 As a result, and again, even though there were commonalities between the trade secrets and common law claims, because those factual commonalities did not extend to the specific claims asserted for the misappropriation of a trade secret, and did not rest on the misappropriation of trade secrets alone, the claim was not properly preempted under the “common nucleus” test.22 Furthermore, as both Honda and Alphamed were decided on a motion to dismiss, it is important to note that the manner in which those claims were plead controlled the application of the preemption provision.

Next, the court in New Lenox Indus., Inc. v. Fenton, 510 F. Supp. 2d 893 (M.D. Fla. 2007), and citing Allegiance, described the relevant inquiry when determining preemption of a fraudulent inducement claim as “whether the fraudulent inducement claim as alleged in Count II and the misappropriation of trade secret claim are factually distinct.” Thus, the New Lenox court, like prior courts, most likely applied a “common nucleus” test focusing on the common underlying facts between the claims. In performing such an analysis, the court compared the factual allegations supporting the fraudulent inducement claim and misappropriation of trade secret claim and determined that they are distinct and not preempted:

The crux of [p]laintiff’s fraud in the inducement claim is that Fenton misled [p]laintiff into believing that NLI’s technology was being evaluated by an independent industry expert, rather than by a potential competitor, in order to obtain access to [p]laintiff’s confidential proprietary information. In contrast, the gist of [p]laintiff’s misappropriation of trade secret claim under FUTSA is that [d]efendants disclosed the unlawfully obtained trade secrets to others in the airbag industry and utilized the information to compete with [p]laintiff.

Again, as New Lenox was decided on a motion to dismiss, how the claims were plead in the complaint was critical to the New Lenox court’s analysis of the underlying factual allegations, and subsequent courts have followed that approach.23

The New Lenox court applied a separate test to determine preemption of the plaintiff’s unjust enrichment claim. Under what some have termed the “comparison of elements test,” preemption is found when the elements of the state law claim in question and the FUTSA claim are similar.24 This test may either look at similarities between the actual elements necessary to state a claim (if the common law claim contains an element not present in a claim under the act it may survive preemption) or whether the elements of the claims differ when viewed as a whole, regardless if an additional element is present in the common law claim. 25

The New Lenox court found that preemption of the plaintiff’s unjust enrichment claim was proper because the unjust enrichment common law claim was indistinguishable from the remedy under FUTSA. The damages provision of FUTSA, F.S. §688.004, states that “[d]amages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.”26 Based on that language, the court determined that a common law unjust enrichment claim for misappropriation of trade secrets was preempted because “a claim for unjust enrichment is indistinguishable from the remedy under the statute.” Accordingly, the court appeared to apply a comparison of elements test and found preemption because the elements of a claim for unjust enrichment would be the same as any unjust enrichment claim under state law. However, preemption here also would appear to have been proper under the “common nucleus” test, as the plaintiff in New Lenox incorporated in its complaint all the facts of its misappropriation of trade secrets claim into its unjust enrichment claim.27

Finally, and most recently, application of the preemption provision was briefly referenced in Healthcare. In Healthcare, the court determined that preemption was properly determined on summary judgment, and denied the party’s motion to dismiss asserting preemption on that ground. As a result, further application of the preemption provision was unnecessary. Nonetheless, the court’s citation to Penalty Kick is instructive of how the court may have applied it.

In summarizing the party’s preemption argument, the court stated, “the Uniform Trade Secrets Act preempts all tort claims that are based or rely upon the allegation of the theft of a trade secret or other confidential information,” and cited Penalty Kick as an example. Unfortunately, the court did not apply this rubric to the facts before it. However, such a description appears to be consistent with prior decisions focusing on the differences in allegations between the common law and trade secret claims, and, therefore, would be consistent with a “common nucleus” test.

As a result, while there has been no definitive ruling from the 11th Circuit or any Florida state court on how to apply the FUTSA preemption provision, a majority of Florida district courts appear to perform a detailed examination of the allegations supporting the claims to determine the application of the preemption provision.

Conclusion
Protecting trade secrets will continue to gain importance as the value of trade secrets increases in today’s economy. FUTSA was enacted to make uniform the law of trade secrets; however, there remains substantial uncertainty as to how to apply its preemption provision, especially in light of the lack of guidance from Florida state courts. Florida practitioners need to be aware of the issues surrounding when the preemption provision is properly asserted and how the preemption provision is applied so that they properly pursue or protect against claims of trade secret misappropriation.


1 Fla. Stat. §688.009 (2012).

2 New York, Massachusetts, North Carolina, and Texas have not enacted the UTSA. See Uniform Law Commission, http://www.uniformlaws.org/Act.aspx?title=Trade%20Secrets%20Act.

3 Fla. Stat. §688.002 (“‘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.”).

4 Fla. Stat. §688.006 (2012).

5 Fla. Stat. §688.002(2)(a) (2012).

6 Fla. Stat. §688.002(1) (2012).

7 Fla. Stat. §688.002(2)(b) (2012).

8 Id.

9 Fla. Stat. §688.003 (2012); Fla. Stat. §688.004 (2012).

10 “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity. Fla. Stat. §688.002(3) (2012).

11 Fla. Stat. §688.004(2) (2012).

12 Fla. Stat. §688.003(1) (2012).

13 Fla. Stat. §688.008 (2012).

14 John T. Cross, USTA Displacement of Other State Law Claims, 33 Hamline L. Rev. 445, 453-54 (2010).

15 Coulter Corp. v. Leinert, 869 F. Supp. 732, 733 (E.D. Mo. 1994).

16 See, e.g., Mortgage Now, Inc. v. Stone, 2009 WL 4262877 (N.D. Fla. Nov. 24, 2009); New Lenox Indus., Inc. v. Fenton, 510 F. Supp. 2d 893 (M.D. Fla. 2007); B&M Nat. Automation, LLC v. AMX Corp., 2007 WL 809675 (S.D. Fla. Mar. 15, 2007); Am. Honda Motor Co., Inc. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1181 (M.D. Fla. 2005); Alphamed Pharmaceuticals Corp. v. Arriva Pharmaceuticals, Inc., 391 F. Supp. 2d 1148 (S.D. Fla. 2005); Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329 (S.D. Fla. 2002).

17 John T. Cross, USTA Displacement of Other State Law Claims, 33 Hamline L. Rev. 445, 455 (2010).

18 Id. at 458-60.

19 Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329, 1336 (S.D. Fla. 2002) (As explained by the court, “Plaintiff’s trade secret claim is based on Coleman’s and PSS’s use of the ‘trade secrets and/or confidential and proprietary information’ that Coleman obtained during her employment. Compl. ¶ 36. The unfair competition claim is also based on Coleman’s and PSS’s use of the ‘trade secrets, confidential information, and other information’ that she learned while employed by [p]laintiff. Compl. ¶ 31. Clearly, then, the allegations are both based on Coleman’s and PSS’s alleged misuse of certain information that Coleman obtained while [p]laintiff’s employee. Plaintiff has not identified any material distinction between the wrongdoing alleged in the trade secret claim and that alleged in the unfair competition claim. Accordingly, the unfair competition claim must be dismissed.”).

20 Am. Honda Motor Co., Inc. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1181 (M.D. Fla. 2005).

21 As explained by the court, those general factual allegations that were incorporated in both the unfair competition claim and the theft of trade secrets claims did not involve the misappropriation of trade secrets alone, and the unfair competition claim did not incorporate the specific allegations of the theft of trade secrets claim: “AlphaMed incorporates the same general allegations into Count VII (unfair competition) and Count V (theft of trade secrets), but AlphaMed does not incorporate the allegations of Count V into Count VII. In its general allegations, AlphaMed claims that Arriva engaged in corporate espionage, and the theft of trade secrets is included in those allegations. In Count VII, in addition to the general allegations, AlphaMed also incorporates paragraphs 122–130, the allegations dealing with Count VI, tortious interference with business relationships. There are no other specific allegations. Although there are common factual allegations in Counts V and VII, AlphaMed is correct that it does not specifically allege that the misappropriation of trade secrets forms the basis of the unfair competition claim.” Alphamed Pharmaceuticals Corp. v. Arriva Pharmaceuticals, Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla. 2005).

22 But see B&M Nat. Automation, LLC v. AMX Corp., 2007 WL 809675 (S.D. Fla. Mar. 15, 2007) (finding preemption because the “next count is brought under the Florida Unfair Trade Practices Act, and is partially based on the allegation that the [d]efendants ‘represent[ed] that they would not use or disclose AMX Trade Secrets’”).

23 See Mortgage Now, Inc. v. Stone, 2009 WL 4262877 at *6-8 (N.D. Fla. Nov. 24, 2009) (stating “the court must compare the allegations related to the FUTSA claim to those supporting the remaining state law claims” and finding claims not preempted when those allegations “pertain[] to acts unrelated to the misappropriation of trade secrets”).

24 John T. Cross, USTA Displacement of Other State Law Claims, 33 Hamline L. Rev. 445, 456-58 (2010).

25 Id.

26 Fla. Stat. §688.004(1) (2012) (emphasis added).

27 New Lenox Indus., Inc. v. Fenton, No. 06-cv-00184 (M.D. Fla. 2007) [D.E. #2].


Leonard K. Samuels is an attorney resident in the Ft. Lauderdale office of Berger Singerman LLP. His practice is focused on employment-related litigation and complex litigation, including business torts and matters involving the theft of trade secrets, noncompete agreements, and tortious interference with business relationships. He is a member of the firm’s complex commercial litigation and employment practice groups.

Steven D. Weber is an attorney resident in the Ft. Lauderdale office of Berger Singerman LLP. He has extensive experience in state and federal litigation matters, including matters involving contract and business disputes, noncompete agreements, and theft of trade secrets. He is a member of the firm’s complex commercial litigation and complex fraud and securities litigation practice areas.

This column is submitted on behalf of the Business Law Section, Brian K. Gart, chair, and Lynn Sherman, editor.

[Revised: 06-24-2013]