“Intentional publication of material will destroy [the material’s] trade secret status.” Precision Automation, Inc. v. Tech. Svcs., Inc., 2009 WL 116135 (D. Or. April 28, 2009). However, “[p]ublication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people [like] potential competitors or other persons to whom the information would have some economic value.” DVD Copy Control Ass’n, Inc. v. Bunner, 116 Cal. App. 4th 241 (Cal. Ct. App. 2004). Accordingly, courts have determined publication of a trade secret to a court’s electronic public docketing system during a lawsuit is not automatically fatal to the information’s trade secret status. The Equal Rights Center v. Lion Gables Residential Trust, 2010 WL 2483613 (D. Md. June 15, 2010). Gaining access to those public systems is not as simple as searching for the information on Google. HMS Holdings Corp. v. Arendt, 18 N.Y.S. 3d 579 (N.Y. Sup. Ct. Albany Cnty. 2015) (“[I]t does not follow that the inadvertent e-filing of an unredacted document on [the electronic filing system] necessarily constitutes a posting to the Internet that renders the information generally known.”). Therefore, an unsealed filing containing trade secret information is a single, non-dispositive, factor to consider in determining whether the document’s contents remain a trade secret. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999). Courts will construe other factors such as whether the filing was intentional, whether the filer took subsequent actions to protect the information from further disclosure, and whether the information was actually viewed or otherwise disseminated to third-parties. Hurry Fam. Revocable Tr., 2023 WL 23805.

Litigants should not be callous about disclosing trade secret information in the court record because court’s will not always be sympathetic to a litigant who intentionally or unintentionally files trade secret information in the court record. Florida has a strong public policy requiring all state, county, and municipal records to be open for personal inspection by any person. Fla. Stat. § 119.01. Therefore, “a failure to identify trade secret information furnished to a state agency [like the judiciary] as putatively exempt from public disclosure effectively destroys any confidential character it might otherwise have enjoyed as a trade secret.” Sepro Corp. v. Fla. Dep’t of Env’t Prot., 839 So. 2d 781 (Fla. 1st DCA 2003).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

“A communication between a lawyer and client is [protected by the attorney client privilege] if it is not intended to be disclosed to third persons.” Fla. Stat. § 90.502. However, the standard for asserting attorney client privilege over corporate communication is more stringent. A corporation must prove its “communication would not have been made but for the contemplation of legal services; … the content of the communication relates to the legal services being rendered;” and “the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.” 1550 Brickell Assocs. v. Q.B.E. Ins. Co., 253 F.R.D. 697 (S.D. Fla. 2008); Fla. R. Civ. P. 1.280 (“The burden to establish the existence of a privilege is on the party asserting the privilege.”). The primary purpose of the communication must have been the acquisition of legal advice rather than business advice. Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684 (S.D. Fla. 2009). Therefore. legal advice must predominate the communication. See Carpenter v. Mohawk Indus., Inc., 2007 WL 5971741 (N.D. Ga. Oct. 1, 2007); Hasty v. Lockheed Martin Corp., 1999 WL 600322 (E.D.La. Aug. 6, 1999) (“[T]he business aspects of [a corporate] decision are not protected simply because legal considerations are also involved;” and, “in those cases where the document does not contain sufficient information to indicate whether the material was considered confidential, that material should not be privileged.”).

Attorney client privilege will not be eliminated merely because it contains some business-related considerations. Eglin Federal Credit Union v. Cantor, Fitzgerald Sec. Corp., 91 F.R.D. 414 (N.D. Ga. 1981) (“The mere mention of business considerations is not enough to compel the disclosure of otherwise privileged material …. Legal advice should remain protected along with “nonlegal considerations” discussed between client and counsel that are relevant to that consultation.”). For example, in Preferred Care Partners Holding Corp. v. Humana, Inc., an email was generated in the context of a proposed merger, and legal advice was provided regarding certain antitrust issues surrounding the merger to determine whether the merger would pass regulatory muster if consummated. 258 F.R.D. 684. The court determined the communication was protected by the attorney client privilege because the dominant issue in the communication was the anti-trust legal advice, not the merger.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

I agree that any threatened or actual violation of this Agreement or any of its terms will constitute immediate and irreparable injury to the Company and the Company shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach or threatened breach of this Agreement.

A litigant may try to use contractual and statutory presumptions of irreparable harm to avoid the burden of proving the existence of irreparable harm. However, that litigant may not be able to completely avoid their burden of presenting evidence demonstrating the existence of irreparable harm. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The statutory presumption of irreparable harm is rebuttable. Don King Prods., Inc. v. Chavez, 717 So. 2d 1094 (Fla. 4th DCA) (The “legislative history of the statutory amendment shows that the legislature did not intend to create a conclusive presumption in the statute.”). Therefore, irreparable harm is not conclusively established merely because a restrictive covenant is violated. A defendants can present evidence demonstrating the absence of irreparable harm. If successful, the party requesting the injunction must come forward with evidence demonstrating irreparable harm actually exists. A court will not issue an injunction unless the requesting party is successful in its efforts and demonstrates it was irreparably harmed by the defendants unlawful competitive conduct.

A contractual presumption of irreparable harm similarly does not absolve the party seeking an injunction from demonstrating the existence of irreparable harm. Anago Franchising, Inc. v. CHMI, Inc., 2009 WL 5176548 (S.D. Fla. Dec. 21, 2009) (A “contract provision, however, ‘is not alone dispositive of the issue of irreparable harm, and does not insulate a plaintiff seeking a preliminary injunction from the need to prove that it will suffer imminent irreparable injury as a result of the [defendant’s] conduct.'”). In fact, a contractual presumption of irreparable harm is given little, if any, weight when determining whether irreparable harm exists. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (Courts “have generally accorded [contractual irreparable harm presumptions] little to no weight, finding that such a contract provision is not dispositive of the issue of irreparable harm, does not in and of itself create a presumption of irreparable harm, nor is it binding upon the Court.”). Consequently, a court “must engage in the usual case-by-case analysis to determine whether [the movant] confronts imminent irreparable harm warranting the issuance of a preliminary injunction.”  

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Oral contracts are contracts. Koechli v. BIP Int’l, Inc., 870 So. 2d 940 (Fla. 1st DCA 2004) (“Florida law recognizes that contracts may be validly formed without an express written agreement.”). Consequently, oral contracts are subject to the same basic contract principles governing written contracts. St. Joe Corporation v. McIver, 875 So. 2d 375 (Fla. 2004). This means oral contracts arise when there are an offer, acceptance, consideration, and sufficient specification of essential terms. Riti Fin., LLC v. Patel, 386 So. 3d 1058 (Fla. 5th DCA 2024) (“Oral contracts are subject to the same “basic” formation requirements as written contracts, namely, “offer, acceptance, consideration and sufficient specification of essential terms.”). Establishing these components can be difficult because no writing memorializes all the contract’s terms. Courts can be skeptical of oral contracts as a result, so litigants should be prepared to establish their existence by a preponderance of the evidence. Solnes v. Wallis & Wallis, P.A., 15 F. Supp. 3d 1258 (S.D. Fla. 2014).

Contracts implied in fact are also enforceable. This type of contract “is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383 (Fla. 4th DCA 1997). “The only distinction between an express and implied-in-fact contract is the manner in which the parties’ assent is manifested or proven.” Baron v. Osman, 39 So. 3d 449 (Fla. 5th DCA 2010). A “contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Commerce, 695 So. 2d at 383. For example, a contract implied in fact can arise when a person performs services at another’s request or when “services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances fairly raising the presumption that the parties understood and intended that compensation was to be paid.”

Florida’s legislature requires some contracts to be in writing even though the common law discussed above allows contracts to be oral or implied in fact. Florida’s statute of frauds requires agreements pertaining to certain subject matters including those identified below to be in a writing signed by the obligor:

• a promise to answer for the debt, default, or miscarriage of another;
• an agreement for the sale of lands, tenements, or hereditaments, or any lease of them for a period longer than one year; and
• an agreement that cannot be performed within one year from making it

Fla. Stat. § 725.01. Florida’s legislature also requires restrictive covenants like non-compete agreement, non-solicitation agreements, and non-disclosure agreements to be in writing. Fla. Stat. § 542.335.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Litigants seeking an injunction when a restrictive covenant is involved are usually better positioned to obtain that injunction because Florida’s restrictive covenant statute creates a presumption of irreparable harm when a restrictive covenant is violated. Fla. Stat. § 542.335 (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). By contrast, Florida’s trade secret statute does not contain a similar presumption. The trade secret statute simply states “[a]ctual or threatened misappropriation may be enjoined.” Fla. Stat. § 688.003. Therefore, it would appear litigants seeking to enjoin another from misappropriating their trade secret without the benefit of a restrictive convent need to demonstrate the existence of irreparable harm.

Some courts have deviated from the statutory wording by holding that “[i]rreparable harm is presumed where there has been misappropriation of a trade secret.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31 2012). However, this type of holding is generally considered bad law. Castellano Cosm. Surgery Ctr. P.A. v. Rashae Doyle, P.A. 2021 WL 3188432 (M.D. Fla. July 28, 2021) (“[N]either FUTSA nor DTSA contain… statutory presumption[s]…, and the Court may not read one into the statute where the text does not provide one.”). In fact, a close review of ACR Elecs., Inc. v. DME Corp. reveals it is predicated upon Florida restrictive covenant law and copyright law. Therefore, a litigant should be required to prove the existence of irreparable harm to obtain an injunction when a trade secret is at issue and no applicable restrictive covenant exists. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (“Although Florida law contains “a statutory presumption of irreparable injury stemming from the violation of a valid restrictive covenant,” the DTSA does not contain a similar statutory presumption and the Court declines to read a non-existent presumption into a statute.”).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

In Florida, “no temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610. Federal courts have a similar rule. Fed. R. Civ. P. 65 (“The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.”). Therefore, the party seeking a temporary injunction must adequately secure its request for an injunction in case the injunction is deemed improper and harms the opposing party as a result. U.S. Lawns, Inc. v. Landscape Concepts of CT, LLC, 2016 WL 9526340 (M.D. Fla. Oct. 31, 2016). (“Typically, a security bond is required when a court enters an injunction which prevents commercial, money-making activities.”).

But how do courts determine the proper bond amount? The answer is ostensibly simple. Conduct an evidentiary hearing and present evidence demonstrating the anticipated costs and damages an injunction would cause, the adverse party’s chances of overturning the temporary injunction, and other pertinent factors. Longshore Lakes Joint Venture v. Mundy, 616 So. 2d 1047 (Fla. 2d DCA 1993) (explaining the factors to consider when conducting an evidentiary hearing on the injunction bond amount). In applying these factors, some courts have actually determined the bond amount can be $0 or a relatively de minimis amount when the potential harm posed to the non-movant is slight. See Harris v. Hous. Auth. of City of Daytona Beach, 2001 WL 36404273 (M.D. Fla. Apr. 25, 2001) (not requiring a bond where the preliminary injunction would result in minimal potential harm to the defendant); Anchor Title & Escrow, LLC v. Omega Nat’l Title Agency, LLC, 2023 WL 3564942, at *2 (N.D. Fla. Apr. 14, 2023) (requiring $1,000.00 bond). Therefore, a party requesting a significant bond amount should be prepared to present evidence demonstrating the substantial destruction an injunction would cause. One could present evidence of the business’ historic revenues and profits to demonstrate the large sums the business could not generate under an injunction. A business could also present evidence demonstrating the volume and value of customers that would leave the business if an injunction were imposed. There are likely other forms of evidence that could demonstrate the harm an injunction would cause to your business and you should consult counsel to determine what they are.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The FTC shifted its restrictive covenant strategy several months after withdrawing its Ryan appeal by moving away from a sweeping national ban and, instead, focusing on a case-by-case enforcement approach. In a workshop hosted by the FTC in late January 2026, the FTC confirmed it will not pursue a national rule ban against non-competition agreements but will bring targeted enforcement actions against agreements the FTC deems overly broad or unjustified. The FTC will focus on non-competition agreements associated with lower-wage earners or non-specialized roles because it views them as anticompetitive, legally suspect, lacking clear business justification. Therefore, business owners should review their existing non-compete agreements to ensure they are narrowly tailored, reasonable in scope and duration, and based on a legitimate business interest because the FTC will focus enforcement actions on overboard agreements.

The final nail in the coffin for the FTC’s 2024 rule generally banning non-compete agreements came in February 2026 when the FTC published a rule officially removing 16 CFR Part 910 from the Code of Federal Regulation. 16 CFR Part 910 was the FTC’s rule banning most non-competition and non-solicitation agreements nationwide that went into effect September 4, 2024. Removing this rule from the Code of Federal Regulation nullifies it enforceability and prohibits litigants from using 16 CFR Part 910 to avoid restrictive covenants.

Lawsuits involving restrictive covenants will therefore turn on the types of issues previously discussed at length in this blog. Is the agreement in writing, does the enforcer possess a legitimate business justifying enforcement of the restrictive covenant, did the enforcer breach the restrictive covenant first, can the enforcee overcome the presumption of irreparable harm, and is the restriction reasonable under the circumstances? Defendants facing restrictive covenant enforcement actions will obviously have more difficulty avoiding enforcement of restrictive covenants without the FTC’s ban while business owners will have an easier time enforcing their agreements with employees and others. Whether you are the enforcer or the enforcee, it is important to consult legal counsel about your restrictive covenant agreement to determine whether it is enforceable and to what extent it can be enforced.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Irreparable harm exists when an injury is actual or imminent. Northeastern Florida Chapter v. City of Jacksonville, 896 F.2d 1283. The injury cannot be too remote. Litigants sometimes try to circumvent the requirement of proving actual or imminent injury giving rise to irreparable harm by arguing irreparable harm is presumed whenever a trade secret is misappropriated. At first blush, it appears some authority supports this argument. ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012) (“Irreparable harm is presumed where there has been misappropriation of trade secrets.”). However, these authorities are likely incorrect because they rely on Florida’s restrictive covenant statue, which contains an express provision creating a presumption of irreparable harm when a restrictive covenant is breached. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (“Although Florida law contains ‘a statutory presumption of irreparable injury stemming from the violation of a valid restrictive covenant,’ the D[efend ]T[rade ]S[ecrets ]A[ct] does not contain a similar statutory presumption and the Court declines to read a non-existent presumption into a statute.”); Fla. Stat. § 542.335 (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). Trade secret statues do not generally contain a similar provision creating a presumption of irreparable harm when misappropriation occurs. Castellano Cosm. Surgery Ctr., P.A. v. Rashae Doyle, P.A., No. 2021 WL 3188432 (M.D. Fla. July 28, 2021) (“[N]either FUTSA nor DTSA contain… statutory presumption[s]…, and the Court may not read one into the statute where the text does not provide one.”). Therefore, authorities like ACR Elecs., Inc. v. DME Corp. should not carry weight.

Courts should engage in a case-by-case analysis to determine whether irreparable harm exists. Anago Franchising, Inc. v. CHMI, Inc., 2009 WL 5176548 (S.D. Fla. Dec. 21, 2009) (The “Court must engage in the usual case-by-case analysis to determine whether movant confronts imminent irreparable harm warranting the issuance of a preliminary injunction.”). This requires courts to construe the facts of each case to determine whether the evidence demonstrates an existence of actual or imminent harm that is not too remote.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A typical example of an implied-in-fact contract occurs when “a person performs services at another’s request, or where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances fairly raising the presumption that the parties understood and intended that compensation was to be paid.” Rhythm & Hues, LLC v. Nature’s Lawn Care, Inc., 368 So. 3d 12 (Fla. 4th DCA 2023). This was the fact pattern giving rise to Mecier v. Broadfoot, 584 So. 2d 159 (Fla. 1st DCA 1991). Mecier alleged she entered an implied-in-fact contract with Broadfoot to develop architectural plans to build Mecier’s church and that Broadfoot breached the contract by providing faulty plans. Broadfoot denied liability by arguing it never entered a contract with Mecier. The facts adduced at the summary judgment hearing demonstrated Mecier originally entered an expressed contract with Platt for the church’s design plans, Platt began working on the plans, Platt gave the plans to Broadfoot, Broadfoot continued working on the plans, Broadfoot discussed the plans with Mecier, Broadfoot told Mecier he would finish the plans, and Mecier contacted Broadfoot (rather than Platt) regarding the plans for the next three years. Mecier paid Platt instead of Broadfoot because Broadfoot directed Mecier to do so. The court determined these facts could give rise to an implied-in-fact contract and denied Broadfoot’s motion for summary judgment as a result.

Every promise does not create a binding implied-in-fact contract because simple negotiations between the parties will not create an implied-in-fact contract. Osceola Farms Co. v. Wilder Bros. Farms, 364 So. 2d 43 (Fla. 4th DCA 1978) (The “negotiations between the parties subsequent to the expiration of the United States Sugar Act did not serve to create an implied contract.”). The implied in fact contract arises when there is an unequivocal and unqualified assertion of contractual rights by one party and silence on the part of the other party that supports a legal inference of that party’s acquiescence to the assertion of rights. Kanter v. Safran, 68 So. 2d 553 (Fla. 1953). Therefore, a litigant should be sure sufficient contractual rights were expressed orally or through conduct and there was sufficient assent to create an implied-in-fact contract before asserting the claim.  

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Historically, there has been dispute concerning the elements needed to establish the existence of a unilateral mistake. One line of cases determined that litigants advancing the unilateral mistake contract defense must prove the mistake was induced by the party seeking to benefit from the mistake. See Rachid v. Perez, 26 So. 3d 70 (Fla. 3d DCA 2010) (holding that “[under Florida law, the party seeking rescission based on unilateral mistake must establish that: (1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.”). Conversely, another line of cases excluded the requirement of inducement to establish unilateral mistake. See U.S. Alliance Corp. v. Tobon, 715 So. 2d 1122 (Fla. 3d DCA 1998). The court in DePrince v. Starboard Cruise Servs., Inc., 271 So. 3d 11 (Fla. 3d DCA 2018) addressed the division in legal requirements and determined a party does not need to prove he or she was induced into making the mistake to avail themselves of the unilateral mistake defense. DePrince, 271 So. 3d 11 (“We conclude that a party seeking rescission of a contract based on a unilateral mistake does not have to prove that she was induced into making the mistake by the other party, and affirm the judgment for Starboard.”). Therefore, the elements required to establish unilateral mistake are the existence of a “mistake was not the result of an inexcusable lack of due care;… denial of release from the contract would be inequitable; and… the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.” Can Fin., LLC v. Niklewicz, 307 So. 3d 33 (Fla. 4th DCA 2020).

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Establishing a tortious interference claim may appear simple. A plaintiff need only prove the existence of a business relationship or contractual relationship between the plaintiff and a third person under which the plaintiff has legal rights, the defendant’s knowledge of the relationship or contract, the defendant’s intentional and unjustified interference with in that relationship which induces or causes the demise of the relationship, and damages resulting from the interference. Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d 310 (Fla. 4th DCA 2001). The claim requires a plaintiff to prove the defendant “interfered with a contract by influencing, inducing or coercing one of the parties to… breach the contract, thereby causing injury to the other party.” Farah v. Canada, 740 So. 2d 560 (Fla. 5th DCA 1999). This requirement can provide a defendant with an opportunity to defeat the tortious interference claim when the third-party conducting business with the plaintiff was predisposed to breaching its agreement or relationship with the plaintiff. Simmons v. USI Ins. Servs., LLC, 2024 WL 946287 (M.D. Fla. Mar. 5, 2024) (“Under Florida law, the breaching party’s predisposition to breach defeats a claim for tortious interference, even where the defendant is aware that the breaching party intends to breach and takes actions that further the breaching party’s plan.”). This is true even when a defendant helps the third-party terminate the relationship with the plaintiff. Courts reason that predisposition precludes tortious interference because a defendant cannot be the proximate cause of the relationship’s or contract’s demise when the third-party was going to end the relationship anyway. Ingenuity, Inc. v. Linshell Innovations Ltd., 644 F. App’x 913 (11th Cir. 2016) (“Under Florida law, a party’s predisposition to breach precludes any finding that it was induced to breach by a third party.”). However, predisposition does not provide defendants with an unfettered license to tortuously interfere because the defendant’s actions cannot be the proximate cause the relationship’s termination. Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318 (M.D. Fla. 2019) (Predisposition to breach means “that the breach by the party to the contract rather than the persuasion by the defendant was the proximate cause of the plaintiff’s damage.” Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318 (M.D. Fla. 2019).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

An action for account stated is an action for a sum certain. Monte Produce, Inc. v. Delgado, 126 Ariz. 320, 614 P. 2d 862 (1980). Therefore, an account stated exists when there is an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay that balance. Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So. 2d 1286 (Fla. 3d DCA  1981). The agreement can be implicit. Breezy Bay, Inc. v. Industria Maquiladora Mexicana, S.A., 361 So. 2d 440 (Fla. 3d DCA 1978) (implicitly admitted to correctness of invoices). Therefore, a prima facie case for the correctness of the account and the liability of the debtor is made implicitly when an account statement is “rendered to[,] and received by[,] one who made no objection thereto within a reasonable time,” Daytona Bridge Co. v. Bond, 36 So. 445 (Fla. 1904).  

The existence of an objection to an invoice by itself does not automatically nullify the ability to assert an account stated claim because the objection must pertain to the amount due as stated on the invoice. Federated Dep’t Stores, Inc. v. Antigo Indus., Inc., 297 So. 2d 591 (Fla. 3d DCA 1974). Objection regarding other issues do not preclude an account stated claim. In Federated Dep’t Stores, Inc. v. Antigo Indus., Inc., the defendant objected to the invoice giving rise to the account stated claim because the defendant was owed a set-off credit for past services. The court determined this objection did not preclude the account stated claim because the objection was not directed to the amount of the invoice. Consequently, an implicit agreement as to the amount was formed.

An open account is harder to define than account stated. H & H Design Builders, Inc. v. Travelers’ Indem. Co., 639 So. 2d 697 (Fla. 5th DCA 1994) (“It is not as easy as it should be to identify what does—or does not—constitute a cause of action for “open account.’”). It is generally defined as an unsettled debt, arising from items of work or labor, goods sold and other open transactions not reduced to writing, the sole record of which is usually the account books of the owner of the demand. S. Motor Co. of Dade County v. Accountable Constr. Co., 707 So. 2d 909 (Fla. 3d DCA 1998). To “state a valid claim on an open account, the claimant must attach an ‘itemized’ copy of the account [to the complaint].” H & H Design Builders, Inc. v. Travelers’ Indem. Co., 639 So. 2d 697 (Fla. 5th DCA 1994). A lump-sum invoice will not satisfy the itemized account requirement. H & H Design Builders, Inc., 639 So. 2d 697 (“The statement of account attached to the complaint involved in this case stated only the lump-sum balance due claimed for each policy period, not the items on which the claim was based.”).

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Rejection of a party’s proposal for settlement and satisfaction of the 25% threshold test does not automatically entitle the offeror to his or her attorney’s fees. Courts disallow recovery of fees when offers are made for the sole purpose of shifting attorney’s fees rather than resolving the lawsuit. Fla. Stat. § 768.79 (A “court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.”). Therefore, courts employ a reasonableness test to ensure the offer was made in good faith. For example, it is unlikely a defendant could recover its attorney’s fees in a simple slip and fall lawsuit by making an offer to the plaintiff of $10 trillion because the offer amount would probably be construed as unreadable given the totality of circumstances involved in the lawsuit. Therefore, offeror must have a reasonable foundation for the offer. Arrowood Indem. Co. v. Acosta, Inc., 58 So. 3d 286 (Fla. 1st DCA 2011) (The “question of whether the offeror has good faith rests on whether the offeror has a reasonable foundation on which to base the offer.”).

The good faith requirement does not preclude a litigant from making an extreme offer if it is based in good faith. Miccosukee Tribe of Indians of Fla. v. Lewis Tein P.L., 277 So. 3d 299 (Fla. 3d DCA 2019) (“The nominal nature of the offers of judgment does not automatically indicate a lack of good faith.”). Good faith “is determined by the subjective motivations and beliefs of the pertinent actor” and “so long as the offeror has a basis in known or reasonably believed fact to conclude that the offer is justifiable.” Dep’t of Highway Safety & Motor Vehicles, Fla. Highway Patrol v. Weinstein, 747 So. 2d 1019 (Fla. 3d DCA 1999). Therefore, a defendant’s nominal offer to a plaintiff will withstand scrutiny if based on good faith.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Temporary injunctions are often imposed early in a lawsuit before the parties have a complete opportunity to conduct discovery and obtain all the facts. The imposition of a temporary injunction can often signal that the Plaintiff will ultimately prevail at trial. This is because the standard for obtaining a temporary injunction requires a plaintiff to prove he or she has a substantial likelihood of success on the merits at trial. Seacoast Banking Corp. of Fla. v. Diemer, 2020 WL 3266107 (M.D. Fla. Feb. 3, 2020) (enjoining the defendant because the plaintiff “established a substantial likelihood of success on its trade secret misappropriation claims under the Defend Trade Secrets Act… and Florida Uniform Trade Secrets Act.”).

A lawsuit is not over merely because a court temporarily enjoins a defendant because the defendant can try to dissolve the injunction. Dissolution is permitted when there is a change in circumstance. Thomas v. Osler Med., Inc., 963 So. 2d 896 (Fla. 5th DCA 2007) (“When a motion to dissolve is directed to a temporary injunction entered after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution.”). A change in circumstance can occur when the trade secret at issue is no longer secret. Fla. Stat. § 688.003 (“Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist.”). A change in circumstance can also occur when the plaintiff in a non-compete lawsuit no longer maintains a relationship with a customer that the plaintiff claimed justifies enforcement of the non-compete provision. IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016) (“Plaintiff here cannot read the word ‘substantial’ out of the statute and gain the benefit of an injunction based upon a relationship with [the customer] that was non-exclusive, vague and apparently terminated by [the customer] itself because it was offended or upset by Plaintiff’s decision to stridently confront it about Defendant’s job offer.”).

A defendant can also dissolve a temporary injunction when he or she demonstrates the injunction was based on clear legal error or a misunderstanding of the relevant facts. Planned Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So. 3d 918 (Fla. 2017) (“[D]enial of a motion to modify or dissolve is also an abuse of discretion where a party can demonstrate clear legal error or misapprehension of facts on the part of the trial court.”).  This can occur when the temporary injunction order is based on relief that was never sought or tried by the plaintiff or based on a vague description of the enjoined activity.

Another option at a temporarily enjoined defendant’s disposal is direct appeal. Appellate courts usually permit litigants to directly appeal temporary injunction orders even though they are not considered final orders. Fla. R. App. P. 9.130. An appeal can provide an enjoined defendant with a new judge who may come to the case with a fresh perspective of the facts.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Sneaky and deceitful conduct generally qualifies as unclean hands. Courts have stated that “[e]quity will stay its hand where a party is guilty of conduct condemned by honest and reasonable men. Unscrupulous practices, overreaching, concealment, trickery or other unconscientous conduct are sufficient to bar relief.” Hensel v. Aurilio, 417 So. 2d 1035 (Fla. 4th DCA 1982). However, the mere establishment of condemnable conduct is not sufficient to prevail on the defense because additional elements must be satisfied. The party asserting the defense must also prove reliance on the conduct, relation to the litigation, and a resulting injury. McIntosh v. Hough, 601 So. 2d 1170 (Fla. 1992).

The unclean hands defense can be used to defend against the enforcement of restrictive covenants like non-compete agreements to the extent the plaintiff seeks equitable relief. However, prevailing on the defense can be difficult. In Technomedia Sols., LLC v. Scopetto, 2013 WL 6571558 (M.D. Fla. Dec. 13, 2013), the defendant argued the restrictive covenant could not be enforced against her because the defendant’s former employer tried interfering with her employment with a competitor. The former employer’s attorney sent a letter to the competitor to advise it about the former’s employer’s non-compete agreement with the defendant. The court rejected the unclean hands defense because the letter did not demonstrate interference. One example of a potential successful use of the unclean hands in a restrictive covenant lawsuit can be found in Bradley v. Health Coal., Inc., 687 So. 2d 329 (Fla. 3d DCA 1997). In Bradley, the former employee argued his former employer could not enforce the restrictive covenant because it ordered the former employee to sell unfit products and alter invoices to defraud customers. This forced the employee to resign because he refused to comply with the former employer’s directives. The appellate indicated these facts could give rise to the successful application of an unclean hands defense directed the trial court to consider the issues.

Litigants can be creative when asserting an unclean defense because defendants are not limited to matters between the plaintiff and the defendant. Privity is not an essential element of the equitable defense. Quality Roof Servs., Inc. v. Intervest Nat. Bank, 21 So. 3d 883 (Fla. 4th DCA 2009). Therefore, the defense may be asserted by a defendant claiming the plaintiff acted toward a third party with unclean hands with respect to the matter in litigation. Yost v. Rieve Enters., Inc., 461 So.2d 178 (Fla. 1st DCA 1984) (“There is no bar to applying the doctrine of unclean hands to a case in which both the plaintiff and the defendant are parties to a fraudulent transaction perpetrated on a third party.”). For example, in Quality Roof Servs., Inc. v. Intervest Nat. Bank, 21 So. 3d 883 (Fla. 4th DCA 2009), the defendant asserted an unclean hands defense based on the inaction of a third-party. The defendant alleged the plaintiff should not be granted a foreclosure because an insurance company failed to distribute insurance proceeds to the defendant, which would have allowed the defendant to pay the plaintiff and prevented the foreclosure. The Court allowed this defense to stand even though the conduct pertained to the inaction an insurer rather than the plaintiff.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

A defamation claim can be based on true statements when those statements create a false impression. Restatement (Second) of Torts § 566 (“A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts.”). This type of defamation is called defamation by implication. See Stevens v. Iowa Newspapers, Inc., 728 N.W. 2d 823 (Iowa 2007) (“Defamation by implication arises, not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication”). Defamation by implication is recognized in several jurisdictions including Iowa, New York, and Washinton D.C. Guilford Transp. Indus., Inc. v. Wilner, 760 A. 2d 580 (D.C. 2000) (“[B]ecause the Constitution provides a sanctuary for truth, …. [t]he [defamatory] language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.” Armstrong v. Simon & Schuster, Inc., 85 N.Y. 2d 373 (N.Y. 1995) (“Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements.”). Florida was a relative late-comer to officially recognizing the tort. Although Florida appellate courts recognized defamation by implication tort since the 1980s, the Supreme Court of Florida did not recognize the tort until 2008. Boyles v. Mid–Fla. Television Corp., 431 So. 2d 627 (Fla. 5th DCA 1983) (reversing dismissal of libel per se claim based on statements that implied that plaintiff was a suspect in the death of the child, was a habitual tormentor of retarded patients, and had raped a patient in his care); Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008) (“We agree with petitioner and its amici that defamation by implication is a well-recognized species of defamation that is subsumed within the tort of defamation.”).

Heekin v. CBS Broad., Inc., 789 So. 2d 355 (Fla. 2d DCA 2001) provides a classic example of defamation by implication. In Heekin, the plaintiff alleged defamation by implication because a news broadcast falsely portrayed him as a spouse abuser by juxtaposing an interview with his former spouse alongside stories and pictures of women who were abused and killed by their spouses. Even though the reporting did not assert the plaintiff was a spouse abuser, the pictures created the false impression that the plaintiff abused his spouse.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Several laws seemingly prevent a litigant from enforcing a non-compete against another who did not sign the agreement. The first is Florida’s restrictive covenant statute which prohibits a court from “enforcing a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” Fla. Stat. § 542.335. Another is the contractual privity doctrine which requires direct contractual privity between the parties engaged in the lawsuit. 4 Corbin on Contracts § 772, at 2 (1951) (explaining the term “privity” is a word of art that derives from the common law of contracts and commonly used to describe the relationship of persons who are parties to a contract).

Florida created a special cause of action to enforce non-competes and other restrictive covenants against third-parties who did not sign the contract. The cause of action is called aiding and abetting. Bauer v. DILIB, Inc., 16 So. 3d 318 (Fla. 4th DCA  2009) (“Even though section 542.335(1)(a) precludes a plaintiff from enforcing a restrictive covenant against a third party, a plaintiff still may enjoin a third party who aids and abets the violation of a restrictive covenant.”). Courts have held “[t]here is no doubt that a court can enjoin others who were not parties to the non-compete agreement [as long as they] receive notice and have an opportunity to be heard.” USI Ins. Servs. of Fla. Inc. v. Pettineo, 987 So. 2d 763 (Fla. 4th DCA 2008). This legal proposition is supported by long-standing well-established law. W. Shore Rest. Corp. v. Turk, 101 So. 2d 123 (Fla. 1958) (“[T]he rule that a stranger to a covenant may be enjoined from aiding and assisting the covenanter in violating his covenant is supported by an overwhelming weight of authority.”).

There are significant limitations to the aiding and abetting claim. The primary limitation is that the plaintiff can only obtain an injunction against the third-party. Dad’s Props., Inc. v. Lucas, 545 So. 2d 926 (Fla. 2d DCA 1989) (“Individuals and entities may be enjoined from aiding and abetting a covenantor in violating a covenant not to compete.”). It cannot obtain damages. Likewise, the plaintiff cannot recover attorney’s fees from the third-party. Bauer, 16 So. 3d 318 (“To the extent the plaintiff sought to recover its attorney’s fees under section 542.335(1)(k), no such statutory authority exists against a third party.”). Courts prevent the recovery of attorney’s fees despite the permissible wording in the restrictive covenant statute because “the power to enjoin third parties [does not] derive[ ] from section 542.335 or its predecessor, section 542.33, Florida Statutes. Instead, such power has evolved from the common law in cases.” Therefore, when Courts review the restrictive covenant statute as a whole rather than consider various subsections in isolation, the requirement that the restrictive covenant be signed by the party it is being enforced against militates against awarding attorney’s fees.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Non-party litigants do not always have to produce information responsive to a subpoena, especially when the information pertains to an individual’s financial data. Article I, section 23, of the Florida Constitution protects the financial information of persons if there is no relevant or compelling reason warranting disclosure. Rappaport v. Mercantile Bank, 17 So. 3d 902 (Fla. 2d DCA 2009) (“The right of privacy set forth in article 1, section 23, of the Florida Constitution ‘undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for a court to determine contested issues.’”); Rousso v. Hannon, 146 So. 3d 66 (Fla. 3d DCA 2014) (“[T]hird party financial records … are of the utmost sensitivity and are not discoverable unless the party seeking discovery establishes a need for the discovery sufficient to overcome the privacy rights of the third party.”). A non-party can be irreparably harmed when his or her financial information is produced without an affirmative showing of relevancy based on evidence. Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101 (Fla. 2d DCA 2012) (granting the petition for certiorari and quashing the trial court’s order compel discovery from the non-party because disclosure would irreparably harm the non-party); Inglis v. Casselberry, 200 So. 3d 206 (Fla. 2D DCA 2016) (The party seeking discovery concerning a non-party “bears the burden of proving that the information sought is relevant or is reasonably calculated to lead to the discovery of admissible evidence….due to the strong public policy underlying this constitutional protection of private financial information.”). The heightened standard afforded to non-parties was created to prevent irreparable harm that often results from the disclosing sensitive information. Oramas v. Asencio, 415 So. 3d 302 (Fla. 3 DCA 2025) (“This heightened standard is necessary because the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.”).

 The law provides non-parties with an ability to prevent the discourse of their information when it is private and sensitive. The recipient of a subpoena should carefully review the information requested to determine whether it seeks private and sensitive information and whether the requesting party demonstrated relevancy by proffering evidence. If no showing was made, it is possible the subpoena recipient can successfully object to providing the information. The converse is also true. Business should be prepared to present evidence demonstrating the relevancy of the financial information and other confidential information requested from non-party individuals.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Non-final order appeals by contrast review certain types of non-final orders. The non-final orders that can be appealed are those that:

• concerns venue;
• grants, continues, modifies, denies, or dissolves injunctions or the appointment of receivers;
• determines of the jurisdiction of a person;
• determines the right to immediate possession of property;
• certifies a class;
• concerns forum non conveniens;
• concerns the unenforceability of a settlement agreement as a matter of law;
• grants or denies a motion for leave to assert a claim for punitive damages; or
• determines entitlement of a party to arbitration, confirm or deny confirmation of an arbitration award or partial arbitration award, or modify, correct, or vacate an arbitration award.

Fla. R. App. P. 9.130.

            It is not always easy for a litigant to determine whether an order is appealable. Imagine a scenario where your business was sued for breach of contract and you countersue for breach of the same contract. Further imagine that the court dismisses the counterclaim for some reason with prejudice. That order may seem appealable on its face as a final order because the dismissal with prejudice precludes the business from amending the counterclaim or otherwise reasserting the counterclaim. However, caselaw suggests otherwise. When counterclaim allegations are compulsory or interdependent with the allegations in the plaintiff’s original breach of contract action, the dismissal order is non-final. Lifshultz v. 20 Condominium Association, Inc., 300 So. 3d 1224 (2020) (holding that the order dismissing the counterclaim with prejudice was non-final because “because the claims asserted against the Association in the counterclaim are either compulsory,… or are otherwise interdependent with the pending claims asserted by the Association in its complaint.”). As a result, the appellate court will only review the order of dismissal if it falls within one of the categories discussed above. It is unlikely an order dismissing a counterclaim falls within the non-final order criteria because it probably does not pertain to venue, jurisdiction, forum non conveniens, injunctions, receivers, or class certification. The litigant in this scenario must, therefore, wait until the end of the lawsuit to appeal the dismissal order because the appellate court does not have jurisdiction until the matter is final. Dexx Med. Indus., CA v. Fitesa Naotecidos S.A., 346 So. 3d 1215 (Fla. 3d DCA 2022) (“Our appellate jurisdiction to review non-final orders is limited to only those orders specifically listed in rule 9.130(a)(3).”); Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. Dist. Ct. App. 1987) (holding that the order dismissing the compulsory counterclaim was non-final and non-appealable until it merged with the final judgment).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Every omission of material fact does not automatically constitute fraud unless deceit was used to prevent opposing party from learning the fact. Ramel v. Chasebrook Const. Co., 135 So. 2d 876 (Fla. 2d DCA 1961) (“In the absence of a fiduciary relationship, mere nondisclosure of all material facts in an arm’s length transaction is ordinarily not actionable misrepresentation unless some artifice or trick has been employed to prevent the representee from making further independent inquiry.”). Therefore, courts require that a party have a duty to another as a prerequisite to fraud. Friedman v. Am. Guardian Warranty Services, Inc., 837 So. 2d 1165 (Fla. 4th DCA 2003). The converse is also true. Parties engaging in an arms-length transaction with equal opportunities to discover the material fact at issue do not have a duties to disclose. Robson Link & Co. v. Leedy Wheeler & Co., 18 So. 2d 523 (Fla. 1944).

The duty to disclose can arise in different ways. One way is a fiduciary relationship, such as, a trustee’s relationship with a trust beneficiary. First Union Nat’l Bank v. Turney, 839 So. 2d 774 (Fla. 1st DCA 2003). Another way the duty arises is when a party undertakes disclosure of certain facts. That party must then disclose all material facts. Regions Bank v. Kaplan, 258 F. Supp. 3d 1275 (M.D. Fla., June 23, 2017) (“One party to a transaction who speaks has a duty to say enough to prevent his words from misleading the other party.”); Ramel v. Chasebrook Const. Co., 135 So. 2d 876 (Fla. 2d DCA 1961). (holding that home builder’s vague statement that a home was “well built” constituted a fraudulent misrepresentation because it failed to disclose that the home was built on a faulty foundation). A third way the duty arises is when a party to a transaction has superior knowledge of the facts and the other party does not have an equal opportunity to educate himself on those facts. Harrell v. Branson, 344 So. 2d 604 (Fla. 1st DCA 1977). An example of that occurred in Harrell v. Branson, where an uncle deeded property to his niece and her partner based on the incorrect belief that the niece and her partner were married. The niece knew her uncle incorrectly believed she was married, but failed to clarify the fact before consummating the transaction. The court rescinded the deed, finding that the niece had a duty to disclose to the uncle that she was not married to her partner because the party did not have an equal opportunity to discover that fact. It was not reasonable for the uncle to know his niece was not married because the uncle would have needed to search marriage records in numerous counties to know the marriage did not exist.  

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.