Florida Senate - 2016 CS for SB 180 By the Committee on Commerce and Tourism; and Senator Richter 577-00706-16 2016180c1 1 A bill to be entitled 2 An act relating to trade secrets; amending s. 812.081, 3 F.S.; including financial information in provisions 4 prohibiting the theft, embezzlement, or unlawful 5 copying of trade secrets; providing criminal 6 penalties; reenacting ss. 581.199, 721.071(1), 7 812.035(1), (2), (5), (7), (8), (10), and (11), and 8 815.04(4), F.S., relating to confidential business 9 information, trade secret information filed with the 10 Division of Florida Condominiums, Timeshares, and 11 Mobile Homes within the Department of Business and 12 Professional Regulation, civil remedies, and offenses 13 against intellectual property, respectively, to 14 incorporate changes made by this act to the definition 15 of the term “trade secret” in s. 812.081, F.S., in 16 references thereto; providing an effective date. 17 18 Be It Enacted by the Legislature of the State of Florida: 19 20 Section 1. Section 812.081, Florida Statutes, is amended to 21 read: 22 812.081 Trade secrets; theft, embezzlement; unlawful 23 copying; definitions; penalty.— 24 (1) As used in this section, the term: 25 (a) “Article” means any object, device, machine, material, 26 substance, or composition of matter, or any mixture or copy 27 thereof, whether in whole or in part, including any complete or 28 partial writing, record, recording, drawing, sample, specimen, 29 prototype model, photograph, microorganism, blueprint, map, or 30 copy thereof. 31 (b) “Representing” means completely or partially 32 describing, depicting, embodying, containing, constituting, 33 reflecting, or recording. 34 (c) “Trade secret” means the whole or any portion or phase 35 of any formula, pattern, device, combination of devices, or 36 compilation of information which is for use, or is used, in the 37 operation of a business and which provides the business an 38 advantage, or an opportunity to obtain an advantage, over those 39 who do not know or use it. The term
“Trade secret”includes any 40 scientific, technical, or commercial information, including 41 financial information, and includes any design, process, 42 procedure, list of suppliers, list of customers, business code, 43 or improvement thereof. Irrespective of novelty, invention, 44 patentability, the state of the prior art, and the level of 45 skill in the business, art, or field to which the subject matter 46 pertains, a trade secret is considered to be: 47 1. Secret; 48 2. Of value; 49 3. For use or in use by the business; and 50 4. Of advantage to the business, or providing an 51 opportunity to obtain an advantage, over those who do not know 52 or use it 53 54 when the owner thereof takes measures to prevent it from 55 becoming available to persons other than those selected by the 56 owner to have access thereto for limited purposes. 57 (d) “Copy” means any facsimile, replica, photograph, or 58 other reproduction in whole or in part of an article and any 59 note, drawing, or sketch made of or from an article or part or 60 portion thereof. 61 (2) Any person who, with intent to deprive or withhold from 62 the owner thereof the control of a trade secret, or with an 63 intent to appropriate a trade secret to his or her own use or to 64 the use of another, steals or embezzles an article representing 65 a trade secret or without authority makes or causes to be made a 66 copy of an article representing a trade secret commits is guilty67 ofa felony of the third degree, punishable as provided in s. 68 775.082 or s. 775.083. 69 (3) In a prosecution for a violation of the provisions of70 this section, the fact it is no defensethat the person so 71 charged returned or intended to return the article so stolen, 72 embezzled, or copied is not a defense. 73 Section 2. For the purpose of incorporating the amendment 74 made by this act to section 812.081, Florida Statutes, in a 75 reference thereto, section 581.199, Florida Statutes, is 76 reenacted to read: 77 581.199 Confidential business information.—It is unlawful 78 for any authorized representative who in an official capacity 79 obtains under the provisions of this chapter any information 80 entitled to protection as a trade secret, as defined in s. 81 812.081, to use that information for personal gain or to reveal 82 it to any unauthorized person. 83 Section 3. For the purpose of incorporating the amendment 84 made by this act to section 812.081, Florida Statutes, in a 85 reference thereto, subsection (1) of section 721.071, Florida 86 Statutes, is reenacted to read: 87 721.071 Trade secrets.— 88 (1) If a developer or any other person filing material with 89 the division pursuant to this chapter expects the division to 90 keep the material confidential on grounds that the material 91 constitutes a trade secret, as that term is defined in s. 92 812.081, the developer or other person shall file the material 93 together with an affidavit of confidentiality. “Filed material” 94 for purposes of this section shall mean material that is filed 95 with the division with the expectation that the material will be 96 kept confidential and that is accompanied by an affidavit of 97 confidentiality. Filed material that is trade secret information 98 includes, but is not limited to, service contracts relating to 99 the operation of reservation systems and those items and matters 100 described in s. 815.04(3). 101 Section 4. For the purpose of incorporating the amendment 102 made by this act to section 812.081, Florida Statutes, in 103 references thereto, subsections (1), (2), (5), (7), (8), (10), 104 and (11) of section 812.035, Florida Statutes, are reenacted to 105 read: 106 812.035 Civil remedies; limitation on civil and criminal 107 actions.— 108 (1) Any circuit court may, after making due provisions for 109 the rights of innocent persons, enjoin violations of the 110 provisions of ss. 812.012-812.037 or s. 812.081 by issuing 111 appropriate orders and judgments, including, but not limited to: 112 (a) Ordering any defendant to divest himself or herself of 113 any interest in any enterprise, including real estate. 114 (b) Imposing reasonable restrictions upon the future 115 activities or investments of any defendant, including, but not 116 limited to, prohibiting any defendant from engaging in the same 117 type of endeavor as the enterprise in which he or she was 118 engaged in violation of the provisions of ss. 812.012-812.037 or 119 s. 812.081. 120 (c) Ordering the dissolution or reorganization of any 121 enterprise. 122 (d) Ordering the suspension or revocation of any license, 123 permit, or prior approval granted to any enterprise by any 124 department or agency of the state. 125 (e) Ordering the forfeiture of the charter of a corporation 126 organized under the laws of the state or the revocation of a 127 certificate authorizing a foreign corporation to conduct 128 business within the state, upon finding that the board of 129 directors or a managerial agent acting on behalf of the 130 corporation, in conducting the affairs of the corporation, has 131 authorized or engaged in conduct in violation of ss. 812.012 132 812.037 or s. 812.081 and that, for the prevention of future 133 criminal activity, the public interest requires the charter of 134 the corporation forfeited and the corporation dissolved or the 135 certificate revoked. 136 (2) All property, real or personal, including money, used 137 in the course of, intended for use in the course of, derived 138 from, or realized through conduct in violation of a provision of 139 ss. 812.012-812.037 or s. 812.081 is subject to civil forfeiture 140 to the state. The state shall dispose of all forfeited property 141 as soon as commercially feasible. If property is not exercisable 142 or transferable for value by the state, it shall expire. All 143 forfeitures or dispositions under this section shall be made 144 with due provision for the rights of innocent persons. 145 (5) The Department of Legal Affairs, any state attorney, or 146 any state agency having jurisdiction over conduct in violation 147 of a provision of ss. 812.012-812.037 or s. 812.081 may 148 institute civil proceedings under this section. In any action 149 brought under this section, the circuit court shall proceed as 150 soon as practicable to the hearing and determination. Pending 151 final determination, the circuit court may at any time enter 152 such injunctions, prohibitions, or restraining orders, or take 153 such actions, including the acceptance of satisfactory 154 performance bonds, as the court may deem proper. 155 (7) The state, including any of its agencies, 156 instrumentalities, subdivisions, or municipalities, if it proves 157 by clear and convincing evidence that it has been injured in any 158 fashion by reason of any violation of the provisions of ss. 159 812.012-812.037 or s. 812.081, has a cause of action for 160 threefold the actual damages sustained and, in any such action, 161 is entitled to minimum damages in the amount of $200 and shall 162 also recover court costs and reasonable attorney’s fees in the 163 trial and appellate courts. In no event shall punitive damages 164 be awarded under this section. The defendant shall be entitled 165 to recover reasonable attorney’s fees and court costs in the 166 trial and appellate courts upon a finding that the claimant 167 raised a claim which was without substantial fact or legal 168 support. 169 (8) A final judgment or decree rendered in favor of the 170 state in any criminal proceeding under ss. 812.012-812.037 or s. 171 812.081 shall estop the defendant in any subsequent civil action 172 or proceeding as to all matters as to which such judgment or 173 decree would be an estoppel as between the parties. 174 (10) Notwithstanding any other provision of law, a criminal 175 or civil action or proceeding under ss. 812.012-812.037 or s. 176 812.081 may be commenced at any time within 5 years after the 177 cause of action accrues; however, in a criminal proceeding under 178 ss. 812.012-812.037 or s. 812.081, the period of limitation does 179 not run during any time when the defendant is continuously 180 absent from the state or is without a reasonably ascertainable 181 place of abode or work within the state, but in no case shall 182 this extend the period of limitation otherwise applicable by 183 more than 1 year. If a criminal prosecution or civil action or 184 other proceeding is brought, or intervened in, to punish, 185 prevent, or restrain any violation of the provisions of ss. 186 812.012-812.037 or s. 812.081, the running of the period of 187 limitations prescribed by this section with respect to any cause 188 of action arising under subsection (6) or subsection (7) which 189 is based in whole or in part upon any matter complained of in 190 any such prosecution, action, or proceeding shall be suspended 191 during the pendency of such prosecution, action, or proceeding 192 and for 2 years following its termination. 193 (11) The application of one civil remedy under any 194 provision of ss. 812.012-812.037 or s. 812.081 shall not 195 preclude the application of any other remedy, civil or criminal, 196 under ss. 812.012-812.037 or s. 812.081 or any other section of 197 the Florida Statutes. 198 Section 5. For the purpose of incorporating the amendment 199 made by this act to section 812.081, Florida Statutes, in a 200 reference thereto, subsection (4) of section 815.04, Florida 201 Statutes, is reenacted to read: 202 815.04 Offenses against intellectual property; public 203 records exemption.— 204 (4) A person who willfully, knowingly, and without 205 authorization discloses or takes data, programs, or supporting 206 documentation that is a trade secret as defined in s. 812.081 or 207 is confidential as provided by law residing or existing internal 208 or external to a computer, computer system, computer network, or 209 electronic device commits an offense against intellectual 210 property. 211 Section 6. This act shall take effect October 1, 2016.