2016 Legislature                                   CS for SB 180
    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.
   18  Be It Enacted by the Legislature of the State of Florida:
   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
   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 guilty
   67  of a 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 of
   70  this section, the fact it is no defense that 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.