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Filing # 189916207 E-Filed 01/17/2024 12:17:48 PM
IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL
CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
Positive Pool Service, Inc.,
a Florida corporation,
Plaintiff,
v. CASE NO.:
Mestas Pools and Outdoor Living LLC, a
Florida Limited Liability Company,
and
Julie Atha, an individual, and Austin Atha,
an individual
Defendants.
_______________________________________/
VERIFIED COMPLAINT
Plaintiff, POSITIVE POOLS SERVICE, INC. (hereinafter “Positive”), a Florida
Corporation, by and through the undersigned counsel, files this Complaint against Defendants,
MESTAS POOLS AND OUTDOOR LIVING LLC (hereinafter “Mestas”), a Florida Limited
Liability Company, JULIE ATHA (hereinafter “Julie”), and AUSTIN ATHA (hereinafter
“Austin”), collectively referred to as “Defendants,” and states as follows:
Jurisdiction, Venue, Parties
1. This is an action for damages that exceed $50,000.00, exclusive of court costs, interest, and
attorney’s fees.
2. Positive operates a pool services business and has its principal place of business in
Hillsborough County, Florida.
3. Mestas operates a pool services business and has its principal place of business in
Hillsborough County, Florida.
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4. Each of the noncorporate Defendants reside in Hillsborough County, Florida.
5. Venue is proper in Hillsborough County, Florida where significant activities and conduct
giving rise to the causes of action occurred and is where each of the Defendants either
reside or have their principal place of business.
6. All conditions precedent to bringing this action have either occurred, been satisfied, or are
waived.
General Factual Allegations
7. Positive was founded in 1978 and has enjoyed prosperous business relationships rooted in
customer satisfaction.
8. Julie worked for Positive for approximately eight years up until her resignation on
December 1, 2023, which stated her final day of employment would be December 8, 2023.
Resignation letter attached hereto as Exhibit A.
9. Julie’s title with the company was Director of Operations. As such, Julie had extensive
duties with Positive, including but not limited to: processing payroll, administrative
contract work, directing customer relations, and scheduling pool cleaners and technicians.
10. Austin worked for Positive as a pool technician for approximately the same time period as
Julie.
11. Austin resigned at substantially the same time as Julie.
12. On December 1, 2023, Julie founded Mestas. The Articles of Organization were filed on
December 5, 2023 with a retroactive application date of December 1, 2023.
13. On December 19, 2023, Austin was added as Members to Mestas.
14. As Director of Operations, Julie had access to essentially all parts of Positive's operations,
including but not limited to client contact information and rates.
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15. Between December 7, 2023 and January 7, 2024, Plaintiff has received in excess of 40
contract cancellation requests from customers. Many of these customers have had
contractual relationships with Positive for several years, if not decades.
16. Important to note is that the Principal for Positive was on a cruise from December 3 to
December 13, 2023 and did not receive Julie’s resignation until a few days after that.
17. Upon completing exit surveys with the newly canceled client contracts, some have
confirmed that Julie contacted them to switch to Mestas for their service needs. Most of
the cancellations received to this date are attached hereto as Composite Exhibit B.
However, it is growing by the day.
18. Some canceled clients have noted that Julie proffered defamatory statements to entice them
to switch their service provider to Mestas. An Affidavit from one such client is attached
hereto as Exhibit C concerning the efforts from Julie to get her to cancel services with
Positive. See Composite Exhibit B which shows this client was only one of many who
canceled services with Positive while Julie was still employed by Positive.
19. The Affidavit states that Julie contacted the individual and told her that the owner of the
company promised to sell the company to Julie but was selling the various pool routes and
leaving her out of it.
20. Julie used these false and deceiving statements to entice Positive customers to switch
services to Mestas, even while Julie was a Director within Positive.
21. Specifically, Positive was not selling the routes and Julie only got that impression from
review of confidential information that was being used to adjust the rates of the clients.
22. Further, Positive never promised to sell Julie the Company.
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23. The Affidavit clarifies that Julie then contacted her mother, who was and presently is an
employee for Positive, to make the change.
24. Plaintiff attempted to send a Cease-and-Desist letter to Julie on Friday, January 5, 2024.
The hand courier was met by a refusal of the letter, and upon the information the
undersigned counsel has been given, there were dogs that forced the courier back to their
vehicle. The courier has stated they will not be returning to Julie’s house under any
circumstances, which is also the residence of Austin. The refused Cease and Desist Letter
is attached hereto as Exhibit D.
25. Given the Defendants’ unwillingness to engage in any meaningful resolution outside of
Court, Plaintiff is left with seeking this Honorable Court’s intervention, most immediately
in the form of an injunction against the Defendants.
26. Julie took, without authorization, property belonging to Positive. Specifically, Julie is still
in possession of substantially all of the contracts of Positive, all names and contact
information for clients, and rates that were being charged to those clients.
27. Julie is in possession of nearly all of Positive’s contractual documents on her personal
computer, as she sometimes worked from home during her employment with Positive.
28. The (refused) Cease and Desist letter demanded the return of such property.
29. Julie formed the company while still actively employed by Positive.
30. In fact, many of the cancellations received by Positive were on December 7, 2023, when
Julie was supposed to still be employed by Positive. See Exhibit A. See Composite Exhibit
B. See Exhibit C.
31. Julie has maintained most, if not all of the passwords to Positive accounts and has failed
and/or refused to disclose same to Positive.
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32. The withholding of account passwords has unnecessarily, improperly and tortiously
interfered with Positive’s ability to conduct their business.
33. Julie is listed as administrator on many of these accounts and programs, and as such
Positive has been unable to gain access through the Customer Service of those programs.
34. Julie also retains a company cell phone which, along with the information stored in it, must
be returned to Positive.
35. The Florida Uniform Trade Secrets Act (Fla. Stat. 688) dictates that “a complainant is
entitled to recover damages for misappropriation.”
36. It further states that “Damages can include both the actual loss caused by the
misappropriation and the unjust enrichment caused by misappropriation that is not taken
into account in computing actual loss,” and “if willful and malicious misappropriation
exists, the court may award exemplary damages in an amount not exceeding twice any
award made under subsection (1).”
37. Fla. Stat. 688.003 further provides that “actual misappropriation may be enjoined.”
38. Fla. Stat. 688.002 defines “misappropriation” as:
“(a) acquisition of a trade secret of another by a person who knows or has reason to know
that the trade secret was acquired by improper means; or
(b) Disclosure or use of a trade secret of another without express or implied consent by a
person who:
1. Used improper means to acquire knowledge of the trade secret; or
2. At the time of disclosure or use, knew or had reason to know that her or his knowledge
of the trade secret was:
a. Derived from or through a person who had utilized improper means to acquire it;
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b. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its
use; or
c. Derived from or through a person who owed a duty to the person seeking relief to
maintain its secrecy or limit its use; or
3. Before a material change of her or his position, knew or had reason to know that it was
a trade secret and that knowledge of it had been acquired by accident or mistake.”
39. Fla. Stat. 688 further defines “trade secret” as “information, including a formula, pattern,
compilation, program, device, method, technique, or process that:
(a) derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
40. Fla. Stat. 688 clarifies that “improper means” includes a “breach or inducement of a breach
of a duty to maintain secrecy.”
41. In the present case, Positive’s client lists and rates charged to client derived Positive
independent economic value from not being generally known to, and not being readily
ascertainable by proper means by, other persons who could obtain economic value from its
disclosure by directly competing against those rates with those clients.
42. This is perhaps most evident by the fact that, promptly after those trade secrets being
available to those that could obtain economic value from them, namely Mestas, Positive
suffered mass cancellations of its customers. See Composite Exhibit B.
43. The values of contracts canceled exceed $150,000.00 and are growing.
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44. The trade secrets of the client lists and rates for clients have been held in confidence with
employees of Positive since Positive’s inception in 1978.
45. In the present case, Julie was permitted to work from home, in part due to a medical injury
suffered which made it easier to work from home, and in part because Principal of Positive
saw no need to force her to work in a different environment so long as the work got done.
46. As such, Julie, an employee and Director of the company, held Company property, such as
client lists, rates being charged to those clients, and contracts with clients on her personal
computer.
47. Julie has refused to return Company property to Positive. See Exhibit D.
48. Under the circumstances, and as evidenced by the maintenance of the list's secrecy since
1978 and during the vast majority of Julie’s employment, the efforts taken to maintain the
secrecy of Positive’s trade secrets were reasonable.
49. Based on the foregoing, Positive’s client lists and rates charged to said clients, at minimum,
fall under the definition of “trade secret.”1
50. Julie has further “disclos[ed] and use[d]” the trade secrets of Positive at Mestas without
express or implied consent from Positive to do so.
51. At the time of Julie’s use and disclosure, Julie had knowledge that the trade secret was
“acquired under circumstances giving duty to maintain its secrecy or limit its use.”
52. Field Services, Inc. v. White & White Inspection & Audit Service, Inc., 384 So.2d 303 (Fla.
5th DCA 1980) is clear that an “employee may not engage in disloyal acts in anticipation
1 of his [or her] future competition, such as using confidential information acquired during
See also Bridge Fin., Inc. v. J. Fischer & Assocs., 310 So. 3d 45; See also NexusVC v. Hieg Partners, LLC, 347 So. 3d
440;
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the course of his employment or soliciting customers and other employees prior to the end
of his [or her] employment.”
53. To that end, at least 13 of the cancellations received by Positive were on or before
December 8, 2023, the last day of Julie’s employment. See Exhibit A. See Composite
Exhibit B.
54. It is clear that Julie solicited customers to her competing business, Mestas, prior to the end
of her employment with Positive.
55. Julie also used and is actively using trade secrets/confidential information acquired during
the course of her employment with Positive in anticipation of her future, now present,
competition, which she was and is aware she gained access to through her employment
with Positive.
56. Austin has reason to know that the trade secrets were acquired by improper means as
defined in Fla. Stat. 688 given he was also an employee of Mestas nearly immediately
before the founding of Mestas and the cancellations received, and his mother whom he
lives with was the one who has retained and withheld such information.
57. On January 11, 2024, Plaintiff received via email a Cease and Desist from counsel for
Defendant, Mestas Pools and Outdoor Living LLC. That letter is attached hereto as Exhibit
E.
58. The Cease and Desist contains several false statements as well as open admissions to the
issues raised in this Complaint. The allegations in this Complaint are tailored to the
allegations herein; while there are additional false allegations outside of the scope of this
Complaint contained in the Cease and Desist.
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59. Perhaps most importantly, the cease and desist reads “we also understand that you have
contacted several of Mestas Pools’ current clients and defamed Mrs. Atha while tortiously
interfering with her business.”
60. This statement is patently false. A non-employee representative of Positive did conduct
exit surveys with many of the clients who canceled and informed said clients that Positive
would love to have them back if they change their mind.
61. Positive had no knowledge which of the cancellations were to change services to Mestas
and which canceled for other reasons. There were some that say they canceled for other
reasons, but many of those who answered Positive’s call confirmed that they switched to
Mestas for their services.Separately, this letter specifically admits that many of the
canceled clients of Positive are now clients of Mestas.
62. The dates of the cancelations indicates that many of these clients were acquired by Mestas
while Julie was an employee of Positive.
63. Further, the Affidavit included as Exhibit C shows the kind of tactics which Julie has
undertaken to deceive Positive’s clients into switching service providers.
64. It should be noted that this client (who signed the affidavit) is the only one who has been
asked to provide a statement by Plaintiff in the interest of keeping the matter confidential,
while Julie has been talking to anyone who knows anything to try to gain an advantage in
defending against her actions.
65. The Cease and Desist included as Exhibit E is a clear attempt by Defendants to achieve
this fact given the allegations, as will be shown, have no merit and are causally
unconnected; yet are now all apparently present issues to Defendants since she knows,
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given the refused cease and desist from Plaintiff, that she is going to be pursued for her
improper actions.
COUNT I – TEMPORARY INJUNCTION (Against All Defendants)
66. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
67. Plaintiff has a substantial likelihood of success on the merits of the case as detailed
throughout this Complaint.
68. Plaintiff lacks an adequate remedy at law for the damages being caused by Defendants.
The monetary value of the damages being caused are difficult to ascertain when
considering lost future business caused by Defendants’ actions.
69. Irreparable harm will occur to Plaintiffs absent entry of an injunction against the
Defendants. Business relationships between Positive and their clients will continue to
suffer, and may never be able to recover.
70. Injunctive relief will serve the public interest by maintaining the status quo until this matter
is resolved by properly allotting contractual benefits and avoiding confusion to the
contested clientele.
WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this
Honorable Court enter a temporary injunction in Plaintiff’s favor against the Defendants,
JULIE ATHA, AUSTIN ATHA, and MESTAS OUTDOOR POOLS AND LIVING LLC,
prohibiting Defendants from using Positive’s client lists and contracts, and requiring
Defendants to turn over all property of Positive, including but not limited to all client
account information and contracts. Plaintiffs further respectfully request the injunction
state that all contracts that were entered into with Mestas for pool services, with parties
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who are former clients with recent cancellations from Positive, be declared null and void
and to order Defendants to cease communications with those clients until conclusion of
this matter. This request for an injunction is made pursuant to Fla. Stat. 688.03 and Fla. R.
Civ. P. 1.610.
COUNT II – VIOLATION OF FLORIDA UNIFORM TRADE SECRETS ACT (Fla. Stat.
688) (Against All Defendants)
71. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
72. Positive is the owner of Positive trade secrets, including, but not limited to, customer
account information.
73. Positive’s trade secrets derive independent economic value from not being generally
known to, and not being readily ascertainable through proper means by, another person
who can obtain economic value from the disclosure or use of information.
74. Positive has taken reasonable steps to protect and maintain the secrecy of its Trade Secrets,
including, but not limited to, by keeping customer account information in possession of its
employees and withholding it from competitors.
75. Defendants have misappropriated trade secrets, as defined by Fla. Stat. 688.
76. Defendants’ actions establish that they used and/or disclosed Positive’s trade secrets which
has caused irreparable damage to Positive.
77. Defendants’ actions indicate that they threaten to further use and/or disclose Positive’s
trade secrets which will continue to cause irreparable damage to Positive.
78. Defendants have, through improper means, used and/or disclosed trade secrets while under
a duty to maintain the secrecy of the trade secrets.
79. Defendants took such actions willfully and/or maliciously.
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80. Pursuant to Fla. Stat. 688.003, this Court has authority to compel affirmative acts and
enjoin acts of Defendants to protect the trade secrets.
WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this
Honorable Court find that Defendants be:
a) temporarily, preliminarily, and permanently be enjoined and restrained from using or
disclosing to any person any trade secrets and other confidential information of Positive;
b) temporarily, preliminarily, and permanently be enjoined and restrained, for a period of
time deemed proper by the Court to protect Positive’s trade secrets, from directly or
indirectly providing Positive’s trade secrets to any competing business in which
Defendants have an ownership interest, or any other direct competitor of Positive;
c) ordered to return all Positive property to Positive, including but not limited to contracts
to which Positive is a Party, accounts belonging to Positive, the compiled customer account
information, and any other trade secrets;
d) ordered to provide all passwords associated with any accounts and/or programs
belonging to Positive;
e) ordered to provide all contracts entered into with Mestas for pool services from
December 1, 2023 to present.
WHEREFORE, Plaintiff further respectfully requests this Honorable Court enter
judgment in Plaintiff’s favor against the Defendants, JULIE ATHA, AUSTIN ATHA, and
MESTAS OUTDOOR POOLS AND LIVING LLC, for twice the actual damages and
twice the unjust enrichment to Defendants, plus a reasonable attorney’s fee and court costs,
pursuant to Fla. Stat. 688, and such other relief that this Court deems just and proper.
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COUNT III – TORTIOUS INTERFERENCE WITH AN ADVANTAGEOUS BUSINESS
RELATIONSHIP (Against All Defendants)
81. Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla. 1985) has opined that
there are four elements required to plead a prima facie case of tortious interference with a
business relationship. Per Tamiami, they are:
a. The existence of a business relationship, not necessarily evidence by an enforceable
contract;
b. Knowledge of the relationship on the part of the Defendant;
c. An intentional and unjustified interference with the relationship by the Defendant;
and
d. Damage to the Plaintiff as a result of the breach of the relationship.
82. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
83. Numerous business relationships existed between Positive and their clients.
84. Defendants had knowledge of the business relationships between Positive and their clients
by being in possession and withholding possession of Positive’s clients’ contact
information, rates, and contracts.
85. Defendants intentionally interfered with the business relationships between Positive and
their clients evidenced by the cancellations included as Composite Exhibit B.
86. Dade Enterprises v. Wometco Theatres, 160 So. 209, 210 (Fla. 1935) opined that “where
the act was intentional, malice will be inferred,” and further that “if one maliciously
interferes between two persons, and induces one of them to breach the contract to the injury
of the other, the injured party may maintain an action against the wrongdoer.”
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87. Damage has resulted to Plaintiff as a result of the breach of the business relationships
between Positive and their clients. See Composite Exhibit B.
WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this
Honorable Court enter judgment in Plaintiff’s favor against the Defendants, JULIE ATHA,
AUSTIN ATHA, and MESTAS OUTDOOR POOLS AND LIVING LLC, for actual
damages and such other relief that this Court deems just and proper.
COUNT IV – BREACH OF FIDUCIARY DUTY (Against Julie Atha)
88. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
89. Julie, as a Director and employee of Positive, held a fiduciary duty of loyalty to Positive to
not complete disloyal acts whilst employed by Positive. See Field Services, Inc. v. White
& White Inspection & Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980).
90. Julie breached that duty by forming Mestas and soliciting Positive’s customers to transfer
service providers to Mestas, even while being an active employee of Positive.
91. Defendant’s breach was a proximate cause of the damages to Plaintiff.
WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully requests this
Honorable Court enter judgment in Plaintiff’s favor against the Defendant JULIE ATHA, for
actual damages and any other relief this Court deems just and proper.
COUNT V - VIOLATION OF FLORIDA DECEPTIVE AND
UNFAIR TRADE PRACTICES ACT (Against All Defendants)
92. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
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93. The Florida Deceptive and Unfair Trade Practices Act renders unlawful unfair or deceptive
acts or practice in the conduct of any trade or commerce of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or
commerce. Section 501.204, Fla. Stat.
94. Fla. Stat. 501.204 states that “great weight shall be given to the interpretations of the
Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade
Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2017” in construing the provision in
the paragraph preceding this paragraph.
95. 15 U.S.C. 45(a)(1) declares “Unfair methods of competition in or affecting commerce, and
unfair or deceptive acts or practices in or affecting commerce” unlawful.
96. 15 U.S.C. 45(a)(4)(n) provides the standard of proof for a violation under 15 U.S.C. 45,
which is that the Federal Trade Commission has no authority to declare acts or practices
unlawful on the grounds that it is unfair, unless:
a. the act or practice causes or is likely to cause substantial injury to “consumers.”
b. The injury is not reasonably avoidable by “consumers” themselves; and
c. The injury is not outweighed by countervailing benefits to consumers or to
competition.
97. Florida’s application concerns any person or entity affecting commerce, and is not limited
to the consumer.
98. In the present case, the Defendants have used the information concerning Positive’s
clientele which they gained while working at Positive to target that same clientele for a
competing business.
99. The acts and/or practices of the Defendants were not reasonably avoidable by Plaintiffs.
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100. The likelihood for substantial injury to Positive was evident in that Defendants
sought to take clients directly and apparently solely from Positive.
101. The injury is not outweighed by countervailing benefits to consumers or to
competition.
102. Further, the Defendants have engaged in unfair or deceptive acts or practices in or
affecting commerce.
103. Fla. Stat. 501.202 clarifies that the purpose of Fla. Stat. 501 is to protect the
“consuming public and legitimate business enterprises” from those who engage in unfair
methods of competition or unconscionable, deceptive, or unfair acts or practices in the
conduct of any trade or commerce.
104. At all relevant times, the Plaintiff was a consumer as defined by Section 501.203,
Fla. Stat.
105. Bureau of Palm Beach County, Inc., 169 So. 3d 164 (Fla. 4 th DCA 2015) further
clarified that FDUPTA (Fla. Stat. 501.201-213) is not limited to only consumer-plaintiffs.
106. Defendants’ acts and/or practices as described in this Complaint are unfair and
deceptive.
107. As a result of Defendants’ unfair and deceptive practices, Plaintiffs were damaged.
WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this
Honorable Court enter judgment in Plaintiffs’ favor against the Defendants, JULIE ATHA,
AUSTIN ATHA, and MESTAS POOLS AND OUTDOOR LIVING LLC for actual damages
pursuant to Section 501.211(2), Fla. Stat., monetary damages, an award of attorneys' fees and costs
pursuant to Sections 501.211(2) and 501.2105, Fla. Stat., and such other relief that this Court
deems just and proper.
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COUNT VI – DEFAMATION (Against Mestas and Julie)
108. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
109. Defendants have published statements, including many phone calls, containing
falsities which were defamatory toward Plaintiff.
110. Defendants acted negligently in stating those falsities in the publications.
111. Defendants’ purpose for making such defamatory statements was to entice Positive
customers to contract with Mestas for pools services.
112. Plaintiff has suffered actual damages from those clients, in fact cancelling their
contracts with Positive.
WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully requests this
Honorable Court enter judgment in Plaintiff’s favor against the Defendants, JULIE ATHA and
MESTAS POOLS AND OUTDOOR LIVING LLC for actual damages and any other relief
this Court deems just and proper.
COUNT VII – DELCARATORY RELIEF
113. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if
specifically set forth herein.
114. There is a bona fide, actual, present practical need for a judicial declaration as to
the Party’s rights.
115. The proposed declarations deal with a present, ascertained or ascertainable state of
facts or present controversy as to a state of facts.
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116. Some power, privilege, or right of Plaintiff is dependent upon the facts or the law
applicable to the facts.
117. There is some person or persons who have, or reasonably may have an actual,
present, adverse and antagonistic interest in the subject matter to Plaintiff, either in fact or
law.
118. The antagonistic and adverse interests are all brought before the court.
WHEREFORE, The specific judicial declarations Plaintiff requests this Honorable Court
make are:
a. Validity of contracts entered into by Mestas with Positive’s customers prior to
Defendant, JULIE ATHA’s execution of the resignation letter which occurred on
December 1, 2023.
b. Validity of contracts entered into by Mestas with Positive’s customers prior to
Defendant, JULIE ATHA’s, resignation from Positive which occurred on
December 8, 2023, but after the execution of said letter from December 1, 2023.
c. Validity of contracts entered into by Mestas with Positive’s customers between
Julie’s resignation on December 8, 2023 and the date of the ruling on this Count,
when such contracts were entered into either:
i) upon defamatory statements made by Defendants
concerning Positive; or
ii) in connection with Defendant’s misappropriation of
Positive’s trade secrets.
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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P: 813.501.1577 | F: 813.397.8618
11268 Winthrop Main Street Suite 102 Riverview, FL 33578
MICHAEL G. EDISON, ESQ. GEORGE S. EDISON, ESQ.
Michael.Edison@EdisonandEdison.com George.Edison@EdisonandEdison.com
January 5, 2024
To: Julie Atha
Re: CEASE AND DESIST / Demand for Damages
Via mail to: 9044 Arndale Circle, Tampa, FL 33615
Ms. Atha,
Our law firm represents Positive Pools Services, Inc. (the “Company”). Direct all
future correspondence relating to this matter to our office.
As you were aware, our client’s principal was out of town from December 3rd
through the 13th. Despite this fact, on December 8, 2023, you tendered your resignation
from the Company. As such, our client did not receive the resignation until the principal
returned after December 13th. On December 5, 2023, before your resignation, you formed
a company called Mestas Pools and Outdoor Living LLC. Most pertinently, we have
information that you have been using confidential information and trade secrets of the
Company without their permission and in violation of your fiduciary duty and trade
secrets laws; all of which is causing the Company damages. As of the date of this
correspondence, our Client has received over 40 service contract cancelations, some of
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which have been clients for several decades. We demand that you immediately
CEASE AND DESIST use of all trade secrets and confidential information and
compensate our client for all damages caused to them by you in doing so
without authorization.
Florida Uniform Trade Secrets Act
Under Fla. Stat. 688, also known as the Florida Uniform Trade Secrets Act, a
Plaintiff is entitled to damages for misappropriation of trade secrets.
A “trade secret” is defined in the act as “information… (a) that derives independent
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of the efforts that are reasonable under
the circumstances to maintain its secrecy.” Client lists, and rates for those clients, have
overwhelmingly been determined to fall under trade secrets. Per subsection a), the
independent economic value to our client over their competition comes from maintaining
relationships with those clients and keeping rates for them ahead of the competition. Such
information was not available to others who could obtain economic value until you took
the information to your new company. Per subsection b), our client has maintained their
client lists and rates as trade secrets since its inception in 1978. The only way it has
escaped is through your retention of same in application to your competing company.
“Misappropriation” is defined in the act as “disclosure or use of a trade secret of
another without express or implied consent by a person who: … 2. at the time of the
disclosure or use, knew or had reason to know her or his knowledge of the trade secret
was… b. acquired under circumstances giving rise to a duty to maintain its secrecy or limit
its use.” You, in fact, used our client’s trade secrets without any form of consent when you
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contacted the Company’s clients to solicit them to your new business. You knew (or had
reason to know) that you had acquired them from your employment with our client. As
such, that information was confidential between you and our client, and which your
company is now using without authorization. “Confidential information” refers to
information a business does not wish to make public, and which has been made available
to an individual (or employee) in the course of the relationship (employment) between
the Parties. As such information is confidential between you and our client, you have a
duty to maintain its secrecy, including but not limited to not using it for an advantage of
a competing company.
In addition to damages, the Uniform Trade Secrets Act also provides our client the
remedy of injunctive relief. To that end, be advised that the Florida Uniform Trade Secrets
Act provides any motion to resist an injunction in bad faith or any misappropriation that
is found to be willful or malicious will entitle our client to a reasonable attorney’s fee for
the same.
While the Florida Uniform Trade Secrets Act is narrowly tailored to trade secrets
(i.e. client lists and rates), our client has identified several causes of action against you for
your improper actions.
Tortious Interference with Advantageous Business Relationship
Florida provides for a civil cause of action for a “tortious interference with an
advantageous business relationship.” For such to exist, there are four elements that must
be met: 1) the existence of a business relationship, not necessarily evidenced by an
enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an
intentional and unjustified interference with the relationship by the Defendant; and 4)
damage to the Plaintiff as a result of the breach of the relationship. In the present case,
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Preview
Filing # 189916207 E-Filed 01/17/2024 12:17:48 PM IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION Positive Pool Service, Inc., a Florida corporation, Plaintiff, v. CASE NO.: Mestas Pools and Outdoor Living LLC, a Florida Limited Liability Company, and Julie Atha, an individual, and Austin Atha, an individual Defendants. _______________________________________/ VERIFIED COMPLAINT Plaintiff, POSITIVE POOLS SERVICE, INC. (hereinafter “Positive”), a Florida Corporation, by and through the undersigned counsel, files this Complaint against Defendants, MESTAS POOLS AND OUTDOOR LIVING LLC (hereinafter “Mestas”), a Florida Limited Liability Company, JULIE ATHA (hereinafter “Julie”), and AUSTIN ATHA (hereinafter “Austin”), collectively referred to as “Defendants,” and states as follows: Jurisdiction, Venue, Parties 1. This is an action for damages that exceed $50,000.00, exclusive of court costs, interest, and attorney’s fees. 2. Positive operates a pool services business and has its principal place of business in Hillsborough County, Florida. 3. Mestas operates a pool services business and has its principal place of business in Hillsborough County, Florida. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 4. Each of the noncorporate Defendants reside in Hillsborough County, Florida. 5. Venue is proper in Hillsborough County, Florida where significant activities and conduct giving rise to the causes of action occurred and is where each of the Defendants either reside or have their principal place of business. 6. All conditions precedent to bringing this action have either occurred, been satisfied, or are waived. General Factual Allegations 7. Positive was founded in 1978 and has enjoyed prosperous business relationships rooted in customer satisfaction. 8. Julie worked for Positive for approximately eight years up until her resignation on December 1, 2023, which stated her final day of employment would be December 8, 2023. Resignation letter attached hereto as Exhibit A. 9. Julie’s title with the company was Director of Operations. As such, Julie had extensive duties with Positive, including but not limited to: processing payroll, administrative contract work, directing customer relations, and scheduling pool cleaners and technicians. 10. Austin worked for Positive as a pool technician for approximately the same time period as Julie. 11. Austin resigned at substantially the same time as Julie. 12. On December 1, 2023, Julie founded Mestas. The Articles of Organization were filed on December 5, 2023 with a retroactive application date of December 1, 2023. 13. On December 19, 2023, Austin was added as Members to Mestas. 14. As Director of Operations, Julie had access to essentially all parts of Positive's operations, including but not limited to client contact information and rates. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 15. Between December 7, 2023 and January 7, 2024, Plaintiff has received in excess of 40 contract cancellation requests from customers. Many of these customers have had contractual relationships with Positive for several years, if not decades. 16. Important to note is that the Principal for Positive was on a cruise from December 3 to December 13, 2023 and did not receive Julie’s resignation until a few days after that. 17. Upon completing exit surveys with the newly canceled client contracts, some have confirmed that Julie contacted them to switch to Mestas for their service needs. Most of the cancellations received to this date are attached hereto as Composite Exhibit B. However, it is growing by the day. 18. Some canceled clients have noted that Julie proffered defamatory statements to entice them to switch their service provider to Mestas. An Affidavit from one such client is attached hereto as Exhibit C concerning the efforts from Julie to get her to cancel services with Positive. See Composite Exhibit B which shows this client was only one of many who canceled services with Positive while Julie was still employed by Positive. 19. The Affidavit states that Julie contacted the individual and told her that the owner of the company promised to sell the company to Julie but was selling the various pool routes and leaving her out of it. 20. Julie used these false and deceiving statements to entice Positive customers to switch services to Mestas, even while Julie was a Director within Positive. 21. Specifically, Positive was not selling the routes and Julie only got that impression from review of confidential information that was being used to adjust the rates of the clients. 22. Further, Positive never promised to sell Julie the Company. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 23. The Affidavit clarifies that Julie then contacted her mother, who was and presently is an employee for Positive, to make the change. 24. Plaintiff attempted to send a Cease-and-Desist letter to Julie on Friday, January 5, 2024. The hand courier was met by a refusal of the letter, and upon the information the undersigned counsel has been given, there were dogs that forced the courier back to their vehicle. The courier has stated they will not be returning to Julie’s house under any circumstances, which is also the residence of Austin. The refused Cease and Desist Letter is attached hereto as Exhibit D. 25. Given the Defendants’ unwillingness to engage in any meaningful resolution outside of Court, Plaintiff is left with seeking this Honorable Court’s intervention, most immediately in the form of an injunction against the Defendants. 26. Julie took, without authorization, property belonging to Positive. Specifically, Julie is still in possession of substantially all of the contracts of Positive, all names and contact information for clients, and rates that were being charged to those clients. 27. Julie is in possession of nearly all of Positive’s contractual documents on her personal computer, as she sometimes worked from home during her employment with Positive. 28. The (refused) Cease and Desist letter demanded the return of such property. 29. Julie formed the company while still actively employed by Positive. 30. In fact, many of the cancellations received by Positive were on December 7, 2023, when Julie was supposed to still be employed by Positive. See Exhibit A. See Composite Exhibit B. See Exhibit C. 31. Julie has maintained most, if not all of the passwords to Positive accounts and has failed and/or refused to disclose same to Positive. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 32. The withholding of account passwords has unnecessarily, improperly and tortiously interfered with Positive’s ability to conduct their business. 33. Julie is listed as administrator on many of these accounts and programs, and as such Positive has been unable to gain access through the Customer Service of those programs. 34. Julie also retains a company cell phone which, along with the information stored in it, must be returned to Positive. 35. The Florida Uniform Trade Secrets Act (Fla. Stat. 688) dictates that “a complainant is entitled to recover damages for misappropriation.” 36. It further states that “Damages can include both the actual loss caused by the misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss,” and “if willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (1).” 37. Fla. Stat. 688.003 further provides that “actual misappropriation may be enjoined.” 38. Fla. Stat. 688.002 defines “misappropriation” as: “(a) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (b) Disclosure or use of a trade secret of another without express or implied consent by a person who: 1. Used improper means to acquire knowledge of the trade secret; or 2. At the time of disclosure or use, knew or had reason to know that her or his knowledge of the trade secret was: a. Derived from or through a person who had utilized improper means to acquire it; 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 b. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or c. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or 3. Before a material change of her or his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.” 39. Fla. Stat. 688 further defines “trade secret” as “information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 40. Fla. Stat. 688 clarifies that “improper means” includes a “breach or inducement of a breach of a duty to maintain secrecy.” 41. In the present case, Positive’s client lists and rates charged to client derived Positive independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons who could obtain economic value from its disclosure by directly competing against those rates with those clients. 42. This is perhaps most evident by the fact that, promptly after those trade secrets being available to those that could obtain economic value from them, namely Mestas, Positive suffered mass cancellations of its customers. See Composite Exhibit B. 43. The values of contracts canceled exceed $150,000.00 and are growing. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 44. The trade secrets of the client lists and rates for clients have been held in confidence with employees of Positive since Positive’s inception in 1978. 45. In the present case, Julie was permitted to work from home, in part due to a medical injury suffered which made it easier to work from home, and in part because Principal of Positive saw no need to force her to work in a different environment so long as the work got done. 46. As such, Julie, an employee and Director of the company, held Company property, such as client lists, rates being charged to those clients, and contracts with clients on her personal computer. 47. Julie has refused to return Company property to Positive. See Exhibit D. 48. Under the circumstances, and as evidenced by the maintenance of the list's secrecy since 1978 and during the vast majority of Julie’s employment, the efforts taken to maintain the secrecy of Positive’s trade secrets were reasonable. 49. Based on the foregoing, Positive’s client lists and rates charged to said clients, at minimum, fall under the definition of “trade secret.”1 50. Julie has further “disclos[ed] and use[d]” the trade secrets of Positive at Mestas without express or implied consent from Positive to do so. 51. At the time of Julie’s use and disclosure, Julie had knowledge that the trade secret was “acquired under circumstances giving duty to maintain its secrecy or limit its use.” 52. Field Services, Inc. v. White & White Inspection & Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980) is clear that an “employee may not engage in disloyal acts in anticipation 1 of his [or her] future competition, such as using confidential information acquired during See also Bridge Fin., Inc. v. J. Fischer & Assocs., 310 So. 3d 45; See also NexusVC v. Hieg Partners, LLC, 347 So. 3d 440; 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7 the course of his employment or soliciting customers and other employees prior to the end of his [or her] employment.” 53. To that end, at least 13 of the cancellations received by Positive were on or before December 8, 2023, the last day of Julie’s employment. See Exhibit A. See Composite Exhibit B. 54. It is clear that Julie solicited customers to her competing business, Mestas, prior to the end of her employment with Positive. 55. Julie also used and is actively using trade secrets/confidential information acquired during the course of her employment with Positive in anticipation of her future, now present, competition, which she was and is aware she gained access to through her employment with Positive. 56. Austin has reason to know that the trade secrets were acquired by improper means as defined in Fla. Stat. 688 given he was also an employee of Mestas nearly immediately before the founding of Mestas and the cancellations received, and his mother whom he lives with was the one who has retained and withheld such information. 57. On January 11, 2024, Plaintiff received via email a Cease and Desist from counsel for Defendant, Mestas Pools and Outdoor Living LLC. That letter is attached hereto as Exhibit E. 58. The Cease and Desist contains several false statements as well as open admissions to the issues raised in this Complaint. The allegations in this Complaint are tailored to the allegations herein; while there are additional false allegations outside of the scope of this Complaint contained in the Cease and Desist. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8 59. Perhaps most importantly, the cease and desist reads “we also understand that you have contacted several of Mestas Pools’ current clients and defamed Mrs. Atha while tortiously interfering with her business.” 60. This statement is patently false. A non-employee representative of Positive did conduct exit surveys with many of the clients who canceled and informed said clients that Positive would love to have them back if they change their mind. 61. Positive had no knowledge which of the cancellations were to change services to Mestas and which canceled for other reasons. There were some that say they canceled for other reasons, but many of those who answered Positive’s call confirmed that they switched to Mestas for their services.Separately, this letter specifically admits that many of the canceled clients of Positive are now clients of Mestas. 62. The dates of the cancelations indicates that many of these clients were acquired by Mestas while Julie was an employee of Positive. 63. Further, the Affidavit included as Exhibit C shows the kind of tactics which Julie has undertaken to deceive Positive’s clients into switching service providers. 64. It should be noted that this client (who signed the affidavit) is the only one who has been asked to provide a statement by Plaintiff in the interest of keeping the matter confidential, while Julie has been talking to anyone who knows anything to try to gain an advantage in defending against her actions. 65. The Cease and Desist included as Exhibit E is a clear attempt by Defendants to achieve this fact given the allegations, as will be shown, have no merit and are causally unconnected; yet are now all apparently present issues to Defendants since she knows, 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9 given the refused cease and desist from Plaintiff, that she is going to be pursued for her improper actions. COUNT I – TEMPORARY INJUNCTION (Against All Defendants) 66. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 67. Plaintiff has a substantial likelihood of success on the merits of the case as detailed throughout this Complaint. 68. Plaintiff lacks an adequate remedy at law for the damages being caused by Defendants. The monetary value of the damages being caused are difficult to ascertain when considering lost future business caused by Defendants’ actions. 69. Irreparable harm will occur to Plaintiffs absent entry of an injunction against the Defendants. Business relationships between Positive and their clients will continue to suffer, and may never be able to recover. 70. Injunctive relief will serve the public interest by maintaining the status quo until this matter is resolved by properly allotting contractual benefits and avoiding confusion to the contested clientele. WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this Honorable Court enter a temporary injunction in Plaintiff’s favor against the Defendants, JULIE ATHA, AUSTIN ATHA, and MESTAS OUTDOOR POOLS AND LIVING LLC, prohibiting Defendants from using Positive’s client lists and contracts, and requiring Defendants to turn over all property of Positive, including but not limited to all client account information and contracts. Plaintiffs further respectfully request the injunction state that all contracts that were entered into with Mestas for pool services, with parties 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10 who are former clients with recent cancellations from Positive, be declared null and void and to order Defendants to cease communications with those clients until conclusion of this matter. This request for an injunction is made pursuant to Fla. Stat. 688.03 and Fla. R. Civ. P. 1.610. COUNT II – VIOLATION OF FLORIDA UNIFORM TRADE SECRETS ACT (Fla. Stat. 688) (Against All Defendants) 71. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 72. Positive is the owner of Positive trade secrets, including, but not limited to, customer account information. 73. Positive’s trade secrets derive independent economic value from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of information. 74. Positive has taken reasonable steps to protect and maintain the secrecy of its Trade Secrets, including, but not limited to, by keeping customer account information in possession of its employees and withholding it from competitors. 75. Defendants have misappropriated trade secrets, as defined by Fla. Stat. 688. 76. Defendants’ actions establish that they used and/or disclosed Positive’s trade secrets which has caused irreparable damage to Positive. 77. Defendants’ actions indicate that they threaten to further use and/or disclose Positive’s trade secrets which will continue to cause irreparable damage to Positive. 78. Defendants have, through improper means, used and/or disclosed trade secrets while under a duty to maintain the secrecy of the trade secrets. 79. Defendants took such actions willfully and/or maliciously. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 11 80. Pursuant to Fla. Stat. 688.003, this Court has authority to compel affirmative acts and enjoin acts of Defendants to protect the trade secrets. WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this Honorable Court find that Defendants be: a) temporarily, preliminarily, and permanently be enjoined and restrained from using or disclosing to any person any trade secrets and other confidential information of Positive; b) temporarily, preliminarily, and permanently be enjoined and restrained, for a period of time deemed proper by the Court to protect Positive’s trade secrets, from directly or indirectly providing Positive’s trade secrets to any competing business in which Defendants have an ownership interest, or any other direct competitor of Positive; c) ordered to return all Positive property to Positive, including but not limited to contracts to which Positive is a Party, accounts belonging to Positive, the compiled customer account information, and any other trade secrets; d) ordered to provide all passwords associated with any accounts and/or programs belonging to Positive; e) ordered to provide all contracts entered into with Mestas for pool services from December 1, 2023 to present. WHEREFORE, Plaintiff further respectfully requests this Honorable Court enter judgment in Plaintiff’s favor against the Defendants, JULIE ATHA, AUSTIN ATHA, and MESTAS OUTDOOR POOLS AND LIVING LLC, for twice the actual damages and twice the unjust enrichment to Defendants, plus a reasonable attorney’s fee and court costs, pursuant to Fla. Stat. 688, and such other relief that this Court deems just and proper. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 12 COUNT III – TORTIOUS INTERFERENCE WITH AN ADVANTAGEOUS BUSINESS RELATIONSHIP (Against All Defendants) 81. Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla. 1985) has opined that there are four elements required to plead a prima facie case of tortious interference with a business relationship. Per Tamiami, they are: a. The existence of a business relationship, not necessarily evidence by an enforceable contract; b. Knowledge of the relationship on the part of the Defendant; c. An intentional and unjustified interference with the relationship by the Defendant; and d. Damage to the Plaintiff as a result of the breach of the relationship. 82. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 83. Numerous business relationships existed between Positive and their clients. 84. Defendants had knowledge of the business relationships between Positive and their clients by being in possession and withholding possession of Positive’s clients’ contact information, rates, and contracts. 85. Defendants intentionally interfered with the business relationships between Positive and their clients evidenced by the cancellations included as Composite Exhibit B. 86. Dade Enterprises v. Wometco Theatres, 160 So. 209, 210 (Fla. 1935) opined that “where the act was intentional, malice will be inferred,” and further that “if one maliciously interferes between two persons, and induces one of them to breach the contract to the injury of the other, the injured party may maintain an action against the wrongdoer.” 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13 87. Damage has resulted to Plaintiff as a result of the breach of the business relationships between Positive and their clients. See Composite Exhibit B. WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this Honorable Court enter judgment in Plaintiff’s favor against the Defendants, JULIE ATHA, AUSTIN ATHA, and MESTAS OUTDOOR POOLS AND LIVING LLC, for actual damages and such other relief that this Court deems just and proper. COUNT IV – BREACH OF FIDUCIARY DUTY (Against Julie Atha) 88. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 89. Julie, as a Director and employee of Positive, held a fiduciary duty of loyalty to Positive to not complete disloyal acts whilst employed by Positive. See Field Services, Inc. v. White & White Inspection & Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980). 90. Julie breached that duty by forming Mestas and soliciting Positive’s customers to transfer service providers to Mestas, even while being an active employee of Positive. 91. Defendant’s breach was a proximate cause of the damages to Plaintiff. WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully requests this Honorable Court enter judgment in Plaintiff’s favor against the Defendant JULIE ATHA, for actual damages and any other relief this Court deems just and proper. COUNT V - VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT (Against All Defendants) 92. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 14 93. The Florida Deceptive and Unfair Trade Practices Act renders unlawful unfair or deceptive acts or practice in the conduct of any trade or commerce of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce. Section 501.204, Fla. Stat. 94. Fla. Stat. 501.204 states that “great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2017” in construing the provision in the paragraph preceding this paragraph. 95. 15 U.S.C. 45(a)(1) declares “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce” unlawful. 96. 15 U.S.C. 45(a)(4)(n) provides the standard of proof for a violation under 15 U.S.C. 45, which is that the Federal Trade Commission has no authority to declare acts or practices unlawful on the grounds that it is unfair, unless: a. the act or practice causes or is likely to cause substantial injury to “consumers.” b. The injury is not reasonably avoidable by “consumers” themselves; and c. The injury is not outweighed by countervailing benefits to consumers or to competition. 97. Florida’s application concerns any person or entity affecting commerce, and is not limited to the consumer. 98. In the present case, the Defendants have used the information concerning Positive’s clientele which they gained while working at Positive to target that same clientele for a competing business. 99. The acts and/or practices of the Defendants were not reasonably avoidable by Plaintiffs. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 15 100. The likelihood for substantial injury to Positive was evident in that Defendants sought to take clients directly and apparently solely from Positive. 101. The injury is not outweighed by countervailing benefits to consumers or to competition. 102. Further, the Defendants have engaged in unfair or deceptive acts or practices in or affecting commerce. 103. Fla. Stat. 501.202 clarifies that the purpose of Fla. Stat. 501 is to protect the “consuming public and legitimate business enterprises” from those who engage in unfair methods of competition or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce. 104. At all relevant times, the Plaintiff was a consumer as defined by Section 501.203, Fla. Stat. 105. Bureau of Palm Beach County, Inc., 169 So. 3d 164 (Fla. 4 th DCA 2015) further clarified that FDUPTA (Fla. Stat. 501.201-213) is not limited to only consumer-plaintiffs. 106. Defendants’ acts and/or practices as described in this Complaint are unfair and deceptive. 107. As a result of Defendants’ unfair and deceptive practices, Plaintiffs were damaged. WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully request this Honorable Court enter judgment in Plaintiffs’ favor against the Defendants, JULIE ATHA, AUSTIN ATHA, and MESTAS POOLS AND OUTDOOR LIVING LLC for actual damages pursuant to Section 501.211(2), Fla. Stat., monetary damages, an award of attorneys' fees and costs pursuant to Sections 501.211(2) and 501.2105, Fla. Stat., and such other relief that this Court deems just and proper. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 16 COUNT VI – DEFAMATION (Against Mestas and Julie) 108. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 109. Defendants have published statements, including many phone calls, containing falsities which were defamatory toward Plaintiff. 110. Defendants acted negligently in stating those falsities in the publications. 111. Defendants’ purpose for making such defamatory statements was to entice Positive customers to contract with Mestas for pools services. 112. Plaintiff has suffered actual damages from those clients, in fact cancelling their contracts with Positive. WHEREFORE, Plaintiff POSITIVE POOLS SERVICE, INC., respectfully requests this Honorable Court enter judgment in Plaintiff’s favor against the Defendants, JULIE ATHA and MESTAS POOLS AND OUTDOOR LIVING LLC for actual damages and any other relief this Court deems just and proper. COUNT VII – DELCARATORY RELIEF 113. Plaintiff incorporates and realleges allegations numbered 1 through 65 above as if specifically set forth herein. 114. There is a bona fide, actual, present practical need for a judicial declaration as to the Party’s rights. 115. The proposed declarations deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 17 116. Some power, privilege, or right of Plaintiff is dependent upon the facts or the law applicable to the facts. 117. There is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter to Plaintiff, either in fact or law. 118. The antagonistic and adverse interests are all brought before the court. WHEREFORE, The specific judicial declarations Plaintiff requests this Honorable Court make are: a. Validity of contracts entered into by Mestas with Positive’s customers prior to Defendant, JULIE ATHA’s execution of the resignation letter which occurred on December 1, 2023. b. Validity of contracts entered into by Mestas with Positive’s customers prior to Defendant, JULIE ATHA’s, resignation from Positive which occurred on December 8, 2023, but after the execution of said letter from December 1, 2023. c. Validity of contracts entered into by Mestas with Positive’s customers between Julie’s resignation on December 8, 2023 and the date of the ruling on this Count, when such contracts were entered into either: i) upon defamatory statements made by Defendants concerning Positive; or ii) in connection with Defendant’s misappropriation of Positive’s trade secrets. 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 18 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 19 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 20 EXHIBIT A 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 21 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 22 EXHIBIT B 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 23 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 24 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 25 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 26 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 27 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 28 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 29 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 30 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 31 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 32 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 33 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 34 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 35 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 36 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 37 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 38 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 39 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 40 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 41 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 42 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 43 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 44 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 45 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 46 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 47 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 48 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 49 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 50 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 51 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 52 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 53 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 54 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 55 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 56 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 57 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 58 EXHIBIT C 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 59 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 60 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 61 EXHIBIT D 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 62 P: 813.501.1577 | F: 813.397.8618 11268 Winthrop Main Street Suite 102 Riverview, FL 33578 MICHAEL G. EDISON, ESQ. GEORGE S. EDISON, ESQ. Michael.Edison@EdisonandEdison.com George.Edison@EdisonandEdison.com January 5, 2024 To: Julie Atha Re: CEASE AND DESIST / Demand for Damages Via mail to: 9044 Arndale Circle, Tampa, FL 33615 Ms. Atha, Our law firm represents Positive Pools Services, Inc. (the “Company”). Direct all future correspondence relating to this matter to our office. As you were aware, our client’s principal was out of town from December 3rd through the 13th. Despite this fact, on December 8, 2023, you tendered your resignation from the Company. As such, our client did not receive the resignation until the principal returned after December 13th. On December 5, 2023, before your resignation, you formed a company called Mestas Pools and Outdoor Living LLC. Most pertinently, we have information that you have been using confidential information and trade secrets of the Company without their permission and in violation of your fiduciary duty and trade secrets laws; all of which is causing the Company damages. As of the date of this correspondence, our Client has received over 40 service contract cancelations, some of 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 63 which have been clients for several decades. We demand that you immediately CEASE AND DESIST use of all trade secrets and confidential information and compensate our client for all damages caused to them by you in doing so without authorization. Florida Uniform Trade Secrets Act Under Fla. Stat. 688, also known as the Florida Uniform Trade Secrets Act, a Plaintiff is entitled to damages for misappropriation of trade secrets. A “trade secret” is defined in the act as “information… (a) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of the efforts that are reasonable under the circumstances to maintain its secrecy.” Client lists, and rates for those clients, have overwhelmingly been determined to fall under trade secrets. Per subsection a), the independent economic value to our client over their competition comes from maintaining relationships with those clients and keeping rates for them ahead of the competition. Such information was not available to others who could obtain economic value until you took the information to your new company. Per subsection b), our client has maintained their client lists and rates as trade secrets since its inception in 1978. The only way it has escaped is through your retention of same in application to your competing company. “Misappropriation” is defined in the act as “disclosure or use of a trade secret of another without express or implied consent by a person who: … 2. at the time of the disclosure or use, knew or had reason to know her or his knowledge of the trade secret was… b. acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.” You, in fact, used our client’s trade secrets without any form of consent when you 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 64 contacted the Company’s clients to solicit them to your new business. You knew (or had reason to know) that you had acquired them from your employment with our client. As such, that information was confidential between you and our client, and which your company is now using without authorization. “Confidential information” refers to information a business does not wish to make public, and which has been made available to an individual (or employee) in the course of the relationship (employment) between the Parties. As such information is confidential between you and our client, you have a duty to maintain its secrecy, including but not limited to not using it for an advantage of a competing company. In addition to damages, the Uniform Trade Secrets Act also provides our client the remedy of injunctive relief. To that end, be advised that the Florida Uniform Trade Secrets Act provides any motion to resist an injunction in bad faith or any misappropriation that is found to be willful or malicious will entitle our client to a reasonable attorney’s fee for the same. While the Florida Uniform Trade Secrets Act is narrowly tailored to trade secrets (i.e. client lists and rates), our client has identified several causes of action against you for your improper actions. Tortious Interference with Advantageous Business Relationship Florida provides for a civil cause of action for a “tortious interference with an advantageous business relationship.” For such to exist, there are four elements that must be met: 1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an intentional and unjustified interference with the relationship by the Defendant; and 4) damage to the Plaintiff as a result of the breach of the relationship. In the present case, 1/17/2024 12:17 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 65