Misappropriation of Trade Secrets

Section 812.081(2), F.S., prohibits a person from depriving or withholding from the owner the control of a trade secret or intentionally misappropriating a trade secret from its owner.

Misappropriating a trade secret includes stealing or embezzling an article representing a trade secret or without authority making or causing to be made a copy of an article representing a trade secret.

Under Florida law, it is not a defense to the crime of misappropriation of trade secrets if a person returned or intended to return the article stolen, embezzled, or copied.

Misappropriating a trade secret can be charged as a third degree felony which is punishable by up to 5 years in prison and a $5,000 fine.

Attorney for Trade Secret Misappropriation in Florida

If you were accused of misappropriating trade secrets or any form of corporate or economic espionage, contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.

Our four experienced criminal defense attorneys represent clients charged with serious economic crimes throughout Tampa, FL, and the surrounding areas in the greater Tampa Bay area, including Hillsborough County.

For the past 12 years, our main office has been located in downtown Tampa, FL. We also have additional offices in New Port Richey across from the West Pasco Judicial Center and Clearwater in Pinellas County, FL.

Call 813-250-0500 to discuss your case.

How Florida Defines “Trade Secrets”

Under Section 812.081, F.S., the term “trade secret” is defined as information used in the operation of a business, which provides the business with an advantage or an opportunity to obtain an advantage over those who do not know or use it.

The test provided in the Florida statutes, and adopted by Florida courts, requires that a trade secret be actively protected from loss or public availability to any person not selected by the secret’s owner to have access thereto and be:

  • Secret;
  • Of value;
  • For use or in use by the business; and
  • Of advantage to the business or providing an opportunity to obtain an advantage over those who do not know or use it.

Under Section 812.081(1)(c) of the Florida Statutes, a trade secret may manifest as “any scientific, technical, or commercial information, including financial information, and includes any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof.”

Federal Laws Prohibiting the Misappropriation of Trade Secrets

The Economic Espionage Act of 1996 (EEA) was the first federal law to punish the theft or misappropriation of trade secrets. The EEA makes it a crime to steal trade secrets or commit other forms of economic espionage.

Under Section 18 U.S.C. 1832, the theft of trade secrets is defined as the intentional conversion of a trade secret to the economic benefit of someone other than the trade secret’s owner, with intent or knowledge that the offense will injure the owner.

Any person convicted of the theft of trade secrets faces up to ten (10) years in federal prison and the following specified fines:

  • An individual may be fined up to $250,000 or twice the value of the loss or gain associated with the offense;
  • A corporation may be fined up to $5 million, twice the value of the loss or gain associated with the offense, or three times the value of the stolen trade secret. 18 U.S.C. 1832(a), 3571(c).

As a general rule in federal court, 18 U.S.C. 3571(d) sets the maximum for a criminal fine of any federal criminal offense as the greater of the standard amount set for the particular offense (e.g., $250,000 for individuals convicted of a felony) or twice the gain or loss resulting from the offense.

Under 18 U.S.C. 1831(a), the term “economic espionage” refers to the theft of a trade secret with the intent or knowledge that such theft will benefit a foreign government, foreign instrumentality, or foreign agent.

Under federal law, crimes for economic espionage are punishable by up to fifteen (15) years in federal prison and specified fines for an individual or corporation.

Combating Corporate Espionage in Florida Act

The Florida legislature considered CS/SB 1378, which would create the “Combating Corporate Espionage in Florida Act” within s if passed. 812.081, F.S., effective October 1, 2021. The new legislation would create, amend, and reorganize current definitions in s. 812.081(1), F.S.

For instance, the bill amends the current third degree felony for theft of a trade secret to simplify language and move the offense from level 1 to level 3 on the offense severity chart.

The legislation would create a new second degree felony for trafficking in trade secrets. Under that provision, any person who traffics in, or attempts to traffic in, trade secrets would commit a level 5 offense on the offense severity ranking chart.

If the crime of trafficking in a trade secret is committed with the intent to benefit a foreign government, foreign agent, or foreign instrumentality, the crime can be reclassified as one degree higher, and the reclassified offense is increased one level on the offense severity ranking chart.

Under the bill, the court must order restitution if a person is convicted of violating s. 812.081, F.S., and the restitution must include the value of the benefit derived from the offense.

The value of the benefit derived from the offense includes any expenses for research and design and other costs of reproducing the trade secret that the person has avoided by committing the offense.

The bill also creates a civil cause of action for a victim of trade secret theft. Under the bill, the victim would be entitled to
injunctive relief and where an injunction is not equitable, the victim is entitled to royalties.

The bill creates a defense to criminal and civil liability for a person who confidentially discloses a trade secret to an attorney, law enforcement officer, or government official for purposes of reporting or investigating an offense. A disclosure made under seal in a legal proceeding is also protected from civil and criminal liability.

This article was last updated on Friday, June 4, 2021.