A key employee resigns and joins a competitor. A confidentiality agreement has been signed. A noncompete agreement has also been been signed. But it seems that misappropriation of the former employer’s trade secrets is “inevitable?” The employee may have acquired the trade secrets properly and may use of those trade secrets for the competitor.
The Federal Defend Trade Secrets Act allows a federal cause of action for the protection of trade secrets, but provides no guidance on the “inevitable disclosure” issue, whereas Florida law remains unsettled. Employers may not rely solely on FUTSA or its federal counterpart for bullet-proof protection because they do not protect valuable information that does not rise to the level of trade secrets. Instead, Employers should consider using a covenant not to compete and include a clause that the covenant does not provide the exclusive remedy. Employers should even consider including, in the potential remedy section of a covenant not to compete, that the remedy is based on actual, threatened, and/or inevitable use or disclosure of valuable information and trade secrets.