Preview
Filing # 86539140 E-Filed 03/18/2019 12:28:45 PM
IN THE CIRCUIT COURT OF THE
17™ JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY FLORIDA
CASE NO.: CACE-14-001087(04)
PLANET T UNIFORMS, INC.,
Plaintiff,
v.
FLORIDA CHARTER FOUNDATION, INC.
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL, DISCOVERY SCHOOLS, _ INC.,
iUNIFORMS, INC., RICHARD SHELLOW, JON
THOMAS ROGERS, AND SCOTT SZNITKEN,
Defendants.
/
RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S TRADE SECRET CLAIMS
COMES NOW Plaintiff, PLANET T UNIFORMS, INC. (“Plaintiff”), by and through
the undersigned law firm, and pursuant to Florida Rule of Civil Procedure 1.510, hereby files this
Response in Opposition to Defendants’ Motion for Summary Judgment on Plaintiffs Trade
Secret Claims filed by Florida Charter Foundation, Inc., Discovery Schools, Inc. and Jon Thomas
Rogers (collectively, the “Moving Defendants”), related to Counts 17, 21 and 22 of the Third
Amended Complaint. For the reasons set forth below, the Moving Defendants are not entitled to
judgment as a matter of law.
I BACKGROUND
1. On January 16, 2014, Plaintiff, Planet T Uniforms, a supplier of school uniforms
serving more than twenty charter and traditional public schools since 2003, sued Franklin
Academy Charter School over the termination of a uniform services agreement. Although the
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/18/2019 12:28:45 PM.****claim originally presented itself as a routine breach of contract dispute, discovery later revealed
the underpinnings of a civil conspiracy by Jon Thomas Rogers, Franklin Academy employees
and Discovery Schools, Inc. (a consulting firm for Franklin Academy), to form a completely new
entity to sell uniforms to their own students using misappropriated business information and
confidential trade secrets obtained during a contractual relationship and bidding process with
Planet T.
2. With the financial assistance of Franklin Academy consultant, Jon Thomas
Rogers, Richard Shellow, who was Rogers’ good friend, incorporated iUniforms so that Franklin
Academy insiders could sell school uniforms to their own students. The motivation for the use of
a straw-man was simple: Florida law expressly prohibits employees of charter schools like
Franklin Academy to self-deal and profit financially either directly or indirectly from the
students they teach. Florida law also prohibits Franklin Academy employees from disclosing or
using information not available to members of the general public for their personal gain or
benefit or the personal gain or benefit of any other person or business entity. Violations of
Florida Statute Section 112.313 can result in civil penalties, termination from employment,
suspension from employment, demotion, reductions in salary, forfeitures of salary, and
restitution of the pecuniary benefits received from the co-conspirators that participated in these
actions.
3. Franklin Academy, Discovery Schools and Rogers, seek entry of summary
judgment in their favor on Counts 17, 21 and 22 of Plaintiff's Third Amended Complaint which
addresses their misappropriation of trade secrets action. Defendants argue that there is no
genuine dispute of material fact that the alleged “trade secrets” derive no “independent economic
value” to Planet T’s uniforms business. Fla. Stat. § 688.002(4)(a). Certainly, Planet T is not aweapons contractor or software developer and it does not have the reach or fortune of Coca-Cola,
but it has an equally legitimate interest in protecting information that derives independent
economic value for their local uniforms business. This includes confidential wholesale and retail
pricing that Planet T developed over years of trial and error in the uniforms business. It was with
this information that iUniforms was able to skip the learning phase of entering the garments
industry and develop a highly profitable business off a steady stream of self-dealt clients.
4. Defendants also argue that Plaintiff failed to take “reasonable efforts under the
circumstances to maintain the secrecy of the information.” Although lawyers have developed the
habit of including boilerplate “confidentiality” notices on the most publicized emails, it was
Planet T’s practice to only include such notices of confidentiality on emails that contained highly
proprietary information. As a result, what affirmative actions, notices and disclaimers constitute
reasonable efforts under the circumstances is a question of fact. Here, Planet T took affirmative
steps to include the requisite notices in their emails and bate stamp the word “Confidential” on
its attachments. Specifically, Planet T’s emails contain the phrase “MAY CONTAIN
INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM
DISCLOSURE UNDER APPLICABLE LAW.” Very few of Planet T’s emails contain this
language but those that do include the disclaimers satisfy the requirements for reasonable efforts
under the circumstances. While the misappropriating parties clearly deemed Planet T’s
disclaimers to be “generic, paper-thin, [and] Lilliputian” -- a jury may reasonably find that Planet
T’s efforts were reasonable under the circumstances.
5. Defendants have failed to meet the heavy burden of proving an entitlement to
summary final judgment where clearly a genuine dispute of material fact exists as to whether the
information obtained by the misappropriating parties derives any actual or potential independenteconomic value. Fla. Stat. § 688.002(4)(a). Additionally, Planet T took affirmative efforts to
safeguard their trade secrets by including the requisite notice of exemption under Chapter 119
and bate stamping the word “Confidential” on its attachments. While this may have meant
nothing to the misappropriating parties, some of whom are trained attorneys, Planet T reasonably
expected that the disclaimers were sufficient to prevent Franklin Academy from divulging this
highly proprietary information. Given the invasive of Franklin Academy’s request for
information, Planet T’s efforts to include those disclaimers were deliberate, calculated and
reasonable (albeit uncomfortable) under the circumstances. For the reasons that follow,
Defendants are not entitled to prematurely remove this case from the consideration of a jury and
summary judgment should be denied.
I. STATEMENT OF DISPUTED AND UNDISPUTED FACTS
6. Franklin Academy and its agents, including but not limited to Rogers, and
Discovery Schools, demanded and were made privy to confidential daily sales reports, revenue
reports, and information regarding wholesale versus retail pricing, that Planet T deems to derive
actual or potential independent economic value. It is with this trade secret information that Planet
T was capable of developing business forecasts and adopting specific techniques, business
methods and models, to adequately fulfill the uniform needs of Franklin Academy. Specifically,
the Retail/Wholesale Price List obtained by Franklin Academy provides confidential pricing
information that is broken down by specific garments sold by Planet T and further into numerous
sub-categories, including whether the garment is a (i) Polo Top (ii) Crewneck Sweatshirt (iii) Zip
Front Sweat Jacket w/ Hood (iv) Zip Front Ripstop Nylon Jacket w/ Hood (v) Cardigan Sweater
(vi) Sweatshirt (with and without hood) (vii) Crewneck PE T-Shit (viii) Crewneck PE Short (ix)Navy Jumper (x) White Peter Pan Blouse (xi) Plaid Skort (xii) Navy Pleated Skort w/ Buttons
(xiii) Pants (xiv) Shorts.
7. The Retail/Wholesale Price List contains additional sub-categories for each of the
specific garments identified above that provides confidential wholesale pricing for youths versus
adults. The document further breaks these categories down by sex and color with their specific
wholesale and retail pricing information. The document identifies the different inputs that go into
arriving at “wholesale pricing” by identifying that it is comprised of the cost of the garment itself
plus SI for the cost of embroidery and $f for the cost of shipping and handling from its
vendor. It also provides whole sale pricing for plus, husky and junior sizes that are not as readily
available to the consumer. Some of the specific garments identified on Planet T’s
Retail/Wholesale Price List contain specific item identification numbers that are used internally.
8. A fledgling uniforms company like iUniforms could derive independent economic
value from the information contained in Planet T’s Retail/Wholesale Price List. With no prior
experience in the garments industry, iUniforms could choose what garments to offer Franklin
Academy students based on the profit margins they were expected to gain from the information
contained in Planet T’s records. iUniforms could also set its own target wholesale prices based
on the information contained in Planet T’s Retail/Wholesale Price List. For example, iUniforms
could negotiate wholesale prices directly with vendors based on the wholesale prices that they
were offering Planet T. They would have learned how much they were expected to specifically
profit from each garment if their negotiated wholesale prices were at or below the numbers
identified in Planet T’s documents. Based on the specificity of Planet T’s Retail/Wholesale Price
List, {Uniforms could predict profit margins based on the size and type of the garment.9. Franklin Academy and its agents were also made privy to confidential daily sales
information for April 1, 2011 through November 30, 2011 and January 1, 2012 through October
21, 2012. Although Defendants seek to trivialize the information contained in Planet T’s charts —
there is no dispute that an inexperienced company like iUniforms could have derived actual or
potential independent economic value from the information contained therein. First, Planet T
does not make its gross sales information readily available to the public. However, these charts
go further than publishing its gross sales information by specifically documenting every sale of
school uniforms for a given school year at Franklin Academy. Like its Retail/Wholesale Price
List, the daily sales charts break down sales into sub-categories by whether the purchase was for
a (i) blouse (ii) jumper (iii) short (iv) skort (v) pant (vi) other bottom or top such as a (vii) polo,
jacket, sweatshirt, cardigan or physical education shirt. Together with Planet T’s
Retail/Wholesale Price List, iUniforms was capable of reverse engineering Planet T’s business
model by identifying the number of items that Franklin Academy students were actually
purchasing and when those purchases were made to inform internal business decisions about
wholesale and inventory.
10. To do this, ‘Uniforms would simply have had to divide the total sales for specific
garments with the retail price of those garments to arrive at the number of pants, skorts, shorts,
jumpers, blouses and shirts sold on any particular day, month or school year. With the wholesale
price information, not only could iUniforms learn what they could profit from each item but also
how much they were actually expected to profit from Franklin Academy sales. iUniforms could
then decide what garments to offer Franklin Academy students and which ones to discontinue, if
any. Given the seasonal nature of school uniform sales, the daily sales charts for Franklin
Academy also reflect patterns in school uniform sales that impact how much inventory a schooluniforms supplier should keep on hand. In fact, Franklin Academy experienced uniform
shortages shortly after iUniforms replaced Planet T as its supplier of school uniforms requiring
Franklin Academy to implement multiple extensions for students to comply with the uniform
policy. The patterns in sales that can be gleaned from Planet T’s daily sales charts would have
provided iUniforms with valuable information about how to plan for the school year; having too
little inventory at the beginning of the school year could lead to widespread non-compliance with
the school’s uniform policy (which it did) while having too much unused inventory could lead to
declining profits.
11. Franklin Academy argues that the confidential information was shared as part of
Planet T’s alleged revenue contribution obligation with the school. However, the information
contained in Planet T’s Retail/Wholesale Price List and daily sales charts for 2011 and 2012 go
beyond any revenue disclosure requirements needed to determine the adequate revenue
contribution, if any.
12. In fact, on December 4, 2012, Planet T emailed Franklin Academy’s Director
(Defendant Scott Sznitken) wanting “to confirm that you received this very confidential
information.” (emphasis added). On December 6, 2012, Sznitken, acknowledged that the
information “certainly helps us get a better idea about how often parents are purchasing items.”
This confidential information, which was not necessary for determining any revenue
contribution, was requested by Director Sznitken on the eve of an important business meeting
with Planet T when he asked “could you please provide me YTD sales information broken down
by each item type? I would like to know how many units of each item you are selling.” The
information he sought contained Planet T’s trade secrets that could derive actual or potentialindependent economic value to anyone interested in building a profitable school uniforms
business; i.e. iUniforms which Rogers funded and was incorporated about two months later.
13. Although Planet T did not have written policies governing how to treat the
dissemination of a “trade secrets,” it did have procedures that it followed to protect them. These
procedures were adopted on the advice of counsel at the time and intended to adequately protect
the trade secrets that Franklin Academy was demanding. Internally, Planet T employees were not
granted access to any information that they deemed to be a trade secret and Planet T took
affirmative steps to ensure that electronic correspondence containing “trade secrets” information
and/or its attachments contained a specific disclaimer or notice to the recipient advising them
that the information being provided therein was considered confidential and was to remain
confidential. The disclaimers stated the following:
“NOTICE
THIS MESSAGE (INCLUDING ANY ATTACHMENTS) IS INTENDED ONLY FOR
THE USE OF THE INVIDIVIDUAL OR ENTITY OF WHICH IT IS ADDRESSED AND
MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND
EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW.
If the reader of this message is not the intended recipient, or the employee or agent
responsible for delivering the message to the intended recipient, you are hereby notified
that any dissemination, distribution, or copy of this communication and all of its
attachments is strictly prohibited. If you have received this communication in error, please
notify us immediately by telephone and return this message to us. Thank you.”
14, Unlike the vast majority of emails from Planet T to Franklin Academy and its
agents, the emails containing the alleged “trade secrets” include this large, all-caps and boldnotice at the end of the email. Additionally, Planet T’s daily sales charts for 2012 contain a bold
“Confidential” mark on every page of the attachment.'
15. In drafting a written Agreement for Sale of School Uniforms between Planet T
and Franklin Academy, Planet T’s lawyers also included language that the parties “may obtain
trade secrets (as defined by applicable law) as well as other information . . . in which the other
party and/or the other Party’s affiliates have a proprietary interest.” See Third Amended
Complaint, Exhibit “A” Section 8 Confidentiality. Although the parties did not execute the
written Agreement, Planet T was aware that its confidential business information and trade
secrets derived independent economic value and took affirmative steps, both in the negotiations
process and in practice, to secure this information from third-parties.
16. On June 28, 2018, Franklin Academy filed a Motion to Appoint a Special Master
or For Jn Camera Review of Alleged Trade Secrets to permit an independent review of over
seven hundred fifty pages of documents, correspondence, letters, e-mails, etc., related to or
identifying the “trade secrets” alleged in paragraph 177 of the Amended Complaint. See March
14, 2018 Supplemental Response to Request for Production No. 25. To date, no Special Master
has been appointed.
17. On July 18, 2018, Franklin Academy, Discovery Schools and Rogers filed their
Motion for Summary Judgment on Plaintiff's Trade Secret Claims, seeking entry of summary
judgment on Counts 17, 21 and 22. Defendants also ask that the Court review several hundred
pages of Planet T’s records and enter partial summary judgment as to those documents that
Defendants deem to have disclaimers that are insufficient as a matter of law.
' Attachments also contain a second bate stamp marked “Confidential” followed by a specific
document number. This particular bate stamp was added by Counsel as part of the production.lil. LEGAL STANDARD
Summary judgment is a means of efficiently disposing of those actions in which there are
no genuine issues of material fact and where the moving party is entitled to receive a judgment
as a matter of law. Quilling v. County of Sumter, Florida, 726 So.2d 795, 795-96 (Fla. 5th DCA
1999). A movant is entitled to summary judgment only “if the pleadings, depositions, answers to
interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on
file show that there is no genuine issue as to any material facts and that the moving party is
entitled to judgment as a matter of law.” Estate of Githens v. Bon-Secours-Maria Manor Nursing
Care Center, Inc., 928 So.2d 1272, 1274 (Fla. 2d 2006).
To preclude summary judgment, there must be some fact essential to a resolution of the
legal questions raised by the case which is genuinely controverted. Wells v. Wilkerson, 391 So.2d
266, 267 (Fla. 4th DCA 1981). A dispute about a material fact is genuine only if the evidence is
such that a jury could return a verdict for the non-moving party. McGory v. Metcalf, 665 So.2d
254, 258 (Fla. 2d DCA 1995).
The law is well settled in Florida that the movant must prove conclusively the absence of
any genuine triable issues, and the court must draw every possible reasonable inference in favor
of the non-moving party. Harper v. Toler, 884 So.2d 1124, 1129 (Fla. 2d DCA 2004). The
burden is initially on the movant. Dunlop v. Reynolds, 204 So.2d 754, 755 (Fla. 2d DCA 1967).
Once the movant tenders competent evidence in support of its motion, the burden shifts to the
non-moving party to come forward with competent opposing evidence. DeMesne v. Stephenson,
498 So.2d 673, 675 (Fla. Ist DCA 1986).
The leading case regarding the burden of proof on a summary judgment is Holl v. Talcott,
191 So. 2d 40, 43-44 (Fla. 1966), in which the Florida Supreme Court stated:The burden of proving the absence of a genuine issue of material fact is
upon the moving party. Until it is determined that the movant has
successfully met this burden, the opposing party is under no obligation
to show that issues do remain to be tried .... This means that before it
becomes necessary to determine the legal sufficiency of the affidavits or
other evidence submitted by the party moved against, it must first be
determined that the movant has successfully met his burden of proving a
negative, i.e., the non-existence of a genuine issue of material fact. He must
prove this negative conclusively. The proof must be such as to overcome all
reasonable inferences which may be drawn in favor of the opposing party.
The rule simply is that the burden to prove the non-existence of genuine
triable issues is on the moving party, and the burden of proving the
existence of such issues is not shifted to the opposing party until the movant
has successfully met his burden.
The non-moving party's right to trial should not be foreclosed by a summary judgment if
it has not been conclusively shown that he cannot offer proof to support his position. McCoy v.
Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983). In making this determination, the trial
court must view “every possible inference in favor of the party against whom summary
judgment” is sought. Maynard v. Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA
2003). “[T]he merest possibility of the existence of a genuine issue of material fact precludes the
entry of final summary judgment.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d
1138, 1140 (Fla. 2d DCA 2000). Summary judgment is appropriate only if the facts are so
crystallized that only questions of law remain. Rodriguez v. Saenz, 866 So. 2d 184, 186 (Fla. 5
DCA 2004).
IV. ARGUMENT
The Florida Uniform Trade Secrets Act defines as “trade secret” as follows:
(4) “Trade secret” means 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.
Fla. Stat. § 688.002(4) (2012). Damages for the misappropriation of trade secrets “can include
both the actual loss caused by misappropriation and the unjust enrichment caused by
misappropriation.” Fla. Stat. Ann. § 688.004. When “willful and malicious misappropriation
exists, the court may award exemplary damages.” Jd.
1. There Remains a Genuine Dispute that the Information Contained in Planet
T’s Retail/Wholesale Price List and Daily Sales Charts Derive Actual or
Potential Economic Value
A party proceeding under the Florida Uniform Trade Secrets Act need only describe the
misappropriated trade secrets with “reasonable particularity.” Treco Int'l S.A. v. Kromka, 706 F.
Supp. 2d 1283, 1286 (S.D. Fla. 2010). Planet T alleges that its Retail/Wholesale Price List and
daily sales information for April 1, 2011 through November 30, 2011 and January 1, 2012
through October 21, 2012 derive actual or potential economic value. The term trade secret is
“one of the most elusive and difficult concepts in the law to define. The question of whether an
item taken from an employer constitutes a trade secret is of the type normally resolved by a fact
finder after full presentation of evidence from each side.” See Furmanite America, Inc. v. T.D.
Williamson, Inc., 506 F.Supp.2d 1134, 1141 (M.D.Fla.2007). “Whether a particular type of
information constitutes a trade secret is a question of fact.” Calkins v. IPD Analytics,
L.L.C., 2009 U.S, Dist. LEXTS 115461, *11 (S.D.Fla. Nov. 25, 2009).
Defendants acknowledge that Planet T’s daily sales charts for the 2011 and 2012 school
years “arguably contain[ ] information of economic value.” However, Defendants go on to
trivialize Planet T’s charts by saying that they only reflect gross sales information. Defendantsmake no mention of Planet T’s Retail/Wholesale Price List which was sent to Franklin Academy
together with its daily sales charts. See December 6, 2011 e-mail from
planettuniforms@bellsouth.net to bernardo.ivy@franklin-academy.org (“Attached please find
the details of daily sales reporting that we have available . . . [t]he retail-wholesale list is attached
as well.”). Defendants’ footnote 10 states that the daily sales charts do not contain the cost of
goods or other margin information but, again, ignores that this proprietary information is
contained in Planet T’s Retail/Wholesale Price List which is also at issue.
Documents containing strategic marketing plans, pricing information and purchase
histories have been held to constitute trade secrets under Florida law. See, e.g., Sethscot
Collection, Inc. v. Drbul, 669 So.2d 1076, 1078 (Fla. 3d DCA 1996) (clothing company’s
confidential active customer list that contained a detailed purchasing history for each entity
qualified as a trade secret entitled to injunctive protection); Thomas v. Alloy Fasteners, Inc., 664
So.2d 59, 60 (Fla. Sth DCA 1995) (holding that confidential order edit lists are trade secrets
because they reveal appellee's pricing and profit structure); see § 812.081(1)(c), Fla. Stat.
(“compilation of information which is for use, or is used, in the operation of a business and
which provides the business an advantage, or an opportunity to obtain an advantage, over those
who do not know or use it.”).
When the information is compiled using the time and resources of the entity claiming
trade secrets, the information likely qualifies as trade secrets under Florida law if reasonable
measures were taken to protect it. Fortiline, Inc. v. Moody, No. 12-CV-81271, 2013 WL
12101142, at *3 (S.D. Fla. Jan. 7, 2013)(citing East v. Aqua Gaming, Inc., 805 So. 2d 932, 934
(Fla. 2d DCA 2001) (finding customer list complied, in part, from confidential and non-public
information to be a trade secret); Kavanaugh v. Stump, 592 So. 2d 1231, 1232 (Fla. Sth DCA1992) (“Customer lists can constitute trade secrets where the lists are acquired or compiled
through the industry of the owner of the lists and are not just a compilation of information
commonly available to the public.”).
In a case that involved more complex aftermarket aviation services, the Court held that
“pricing formulas, pricing terms, and procedures for tear downs” derived independent economic
value. VAS Aero Servs., LLC v. Arroyo, 860 F. Supp. 2d 1349, 1359 (S.D. Fla. 2012). There,
VAS Aero Services, LLC alleged that one of its employees improperly removed VAS documents
containing confidential and proprietary information. /d. at 1351. The misappropriated Master
Agreement included “detailed provisions, including, but not limited to, delivery terms, pricing
structures, warehousing and storage conditions, and profit allocation.” /d. at 1352. The Court
noted that the value of knowing the pricing terms and profit margins “hinges on the fact that if
disseminated, a competitor, like [GA Telesis, LLC], could undercut VAS’s prices.” Jd. at 1359.
Additionally, “the release of this information would significantly impact VAS on current and
future projects.” The plaintiffs noted that “if a competitor obtained these documents, it could
identify Boeing’s needs without investing significant time and resources in establishing a
relationship with Boeing.” Jd. The actual and potential economic impact of knowing this
information in addition to its unavailability to the general public led the court to conclude that it
derived independent economic value.
The fields of aviation and school uniforms are markedly different, but the parallels in the
Court’s analysis of whether information derives economic value are extremely useful. Here,
Planet T’s Retail/Wholesale Price List contains confidential pricing information that is broken
down by the type of garments sold and further into numerous sub-categories. Each item contains
confidential wholesale pricing for both youth and adult sizes which had been previouslynegotiated by Planet T with its vendors and manufacturers. The document further breaks these
categories down by sex and color with their specific wholesale and retail pricing information for
each. The document goes so far as to identify that the wholesale price is comprised of the cost of
the garment itself plus $2.00 for the cost of embroidery and $1.00 for the cost of shipping and
handling. Planet T’s chart allows its competitors to decipher the expected profit margins on a
granular level for each item. Planet T’s Vice President, Maria Trotto Mark, testified that Franklin
Academy “wanted our margins. They wanted our cost of goods. They wanted the items sold.
They wanted the retail sales, selling price as well as our cost price.” DEPO MARIA TROTTO
MARK, P. 88, L.1-3. Like in VAS, the value of knowing the pricing terms and profit margins
centers on the fact that if disseminated, a competitor like iUniforms, could undercut Planet T’s
prices. Obtaining Planet T’s daily sales information was also critical to them identifying Franklin
Academy’s specific needs without investing significant time and resources in establishing a
relationship. In fact, the information obtained was so economically valuable that iUniforms was
able to build their business and sell uniforms within months of first being incorporated in
February of 2013. With the promise of charter school expansions from Franklin Academy
insiders, iUniforms was able to replicate the Planet T process to each school and make huge
profits. ‘Uniforms added to its profits by not opening a physical store, which Planet T had, and
using the labor of Franklin Academy employees to distribute school uniforms during school
hours.
Planet T’s Retail/Wholesale Price List and daily sales information for April 1, 2011
through November 30, 2011 and January 1, 2012 through October 21, 2012 contain much more
than just gross sales information. If Planet T had to share its gross sales with Franklin Academy
for purposes of computing an alleged revenue sharing obligation — it need only provide the lastline of its daily sales charts. However, Franklin Academy insiders demanded much more of
Planet T because they sought this highly proprietary information to benefit investors and
employees of iUniforms who also worked for Franklin Academy. In Rasier-DC, the Fourth
District Court of Appeals deemed UBER’s aggregate number of pickups and gross payments to
be unprotected because they were the bare output of its methods. Rasier-DC, LLC v. B & L
Service, Inc., 237 So. 3d 374 (Fla. 4th DCA 20018). However, the Court held that UBER’s
reports with specific dates and times of pick-ups and drop-offs were trade secrets. These reports
contained granular data compiled by UBER with time stamps, longitude and latitudes and
driver’s license plate numbers. Although the needs of a transportation tech and school uniforms
company are different, the information deemed to be trade secrets in Rasier-DC are comparable
to Planet T’s daily sales reports with its granular inputs for each specific garment. Together with
Planet T’s Retail/Wholesale Price List, iUniforms was capable of reverse engineering Planet T’s
business model by identifying the number of items that Franklin Academy students were actually
purchasing and when those purchases were made to inform internal business decisions about
wholesale and inventory. As a result, Planet T’s Retail/Wholesale Price List and daily sales
information for the 2011 and 2012 school years are trade secrets.
2. Whether Planet T Acted Reasonably Under the Circumstances to Protect its
Trade Secrets is a Question of Fact for the Jury to Decide
Whether a party has taken reasonable steps under the circumstances to preserve its trade
secrets is a factual inquiry that cannot be resolved on summary judgment. 7reco Int'l S.A. v.
Kromka, 706 F. Supp. 2d 1283, 1287 (S.D. Fla. 2010); see Furmanite America, Inc. v. T.D.
Williamson, Inc., 506 F.Supp.2d 1134, 1141 (M.D.Fla.2007) (“Courts are extremely hesitant to
grant summary judgment regarding the fact-intensive questions of the existence of a trade secret
or whether a plaintiff took reasonable steps to protect its trade secrets.”). Defendants argue whatno Court has ever held; namely, that if the alleged trade secret does not contain the magic words
“TRADE SECRET” on each document or include a separate writing stating “exempt from
Chapter 119,” then efforts were not reasonable under the circumstances as a matter of law. In
2011, Planet T adopted specific procedures on the advice of counsel with respect to sharing
confidential business information and trade secrets with the intention that it remain protected.
Planet T was aware that its confidential business information and trade secrets derived
independent economic value but was lured by Franklin Academy insiders to share that
information with the prospect of more business due to charter school expansions. In her
deposition, Planet T’s Vice President testified that “she attempted not to send it” but Franklin
Academy’s response “was, well, if you don’t give it to us we’re never going to meet.” DEPO
MARIA TROTTO MARK, P. 96, L.4-13. However, Planet T made sure to take affirmative steps
so that electronic correspondence containing “trade secrets” information and/or its attachments
contained a disclaimer or notice to the recipient advising them that the information being
provided was considered confidential and was to remain confidential. The disclaimers stated the
following:
“NOTICE
THIS MESSAGE (INCLUDING ANY ATTACHMENTS) IS INTENDED ONLY FOR
THE USE OF THE INVIDIVIDUAL OR ENTITY OF WHICH IT IS ADDRESSED AND
MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND
EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW.
If the reader of this message is not the intended recipient, or the employee or agent
responsible for delivering the message to the intended recipient, you are hereby notified
that any dissemination, distribution, or copy of this communication and all of its
attachments is strictly prohibited. If you have received this communication in error, please
notify us immediately by telephone and return this message to us. Thank you.”Unlike legal and medical professionals who include boilerplate notices in every email regardless
of its contents, Planet T, as a school uniforms supplier, never included this disclaimer unless
there was a reason for it. Additionally, Planet T’s daily sales charts contain a “Confidential”
mark on every page of the attachment. Planet T’s Notice was bold, in all-caps and larger font to
ensure that its recipients would not overlook its significance. Several follow up emails to
Franklin Academy employees reiterated the proprietary significance of the information and
request that it remain confidential.
Defendants argue that according to Sepro, Planet T’s notices and disclaimers were not
enough as a matter of law. 839 So. 2d 781 (Fla. 1st DCA 2003). In that case, Sepro Corp. was
under contract with the Florida Department of Environmental Protection (DEP) to assist with
eradicating hydrilla from specified lakes when Griffin, LLC made a public records request for
hydrilla studies. Sepro, 839 So. 2d at 782. After learning of Griffin’s public records request,
Sepro wrote DEP designating as trade secrets: “(1) Any ReMetrix Bathymetric, Bosonic or
Vegetation study; (2) Any RemEtrix Biomass study; (3) Any SePRO prescriptive treatment
formula.” /d. In other words, Sepro submitted its trade secrets to a public agency without any
notice or disclaimer whatsoever. The Court stated that “[w]ith regard to documents (including
some that had been transmitted electronically) that were not labeled confidential . . . a DEP
employee testified at the evidentiary hearing, ‘I don’t recall us getting anything in writing from
SePRO regarding confidential.”” /d. at 783. (emphasis added). The Court held that the
information was not a trade secret “because Sepro failed to timely mark the documents as
confidential prior to the Department receiving a public records request” /d. (emphasis added). As
a result, it was Sepro’s complete and utter failure to mark the documents with anything, not even
a simple “confidential” designation, before they were sent to the public agency that led to theirlosing trade secret protection. It was in this context that the Court explained that a trade secret
owner must label his trade secrets or specify in writing that the information is confidential and
exempt under public records law upon delivery of the trade secret. /d. at 784.
Critically, the Court did not say that in order for trade secrets to be protected they must
also contain the magic words “TRADE SECRETS” or “Exempt from Chapter 119” as a matter
of law. In fact, the Court in Sepro went on to affirm that “all information ‘that SePRO adequately
and timely’ identified as ‘confidential, by stamping such documents as ‘confidential’ at the time
the documents were submitted to DEP” were protected trade secrets. Jd. at 784. Contrary to
Defendants’ argument — the Court’s own holding clarifies that it did not intend to create some
talismanic rule that affords automatic protection under all circumstances. Even in the context of
discussing trade secrets that Sepro failed to mark in a timely fashion, the Court said the
documents “were not labeled confidential” and that “SePRO failed to timely mark the documents
as confidential.” /d. at 783. Absent from that analysis was any mention that the documents also
failed to be marked “TRADE SECRETS” or “Exempt from Chapter 119.” As was seen in Sepro,
this is because citing to “Chapter 119” is not a specific requirement for maintaining trade secret
protection. Ultimately, whether Planet T’s Notice that the information was “PRIVILEGED,
CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW”
was reasonable under the circumstances is for a jury to decide.
Finally, Defendants cite to several examples of state agencies that have developed
different mechanisms to identify and vet claims of trade secret exemption from public records
disclosure. The Department of Financial Services, for example, statutorily requires that a person
file with the office a “notice of trade secret” that includes an affidavit certifying that the
information “has value and provides an advantage or opportunity to obtain an advantage” andthat they have “taken measures to prevent the disclosure of the information.” See Fla. Stat. §
624.4213. By statute, every page of the document must also contain the words “trade secret.” /d.
Those wishing to do business with Broward County Government are also contractually required
to include a specific Notice; the specific language of which is set forth in the publicly available
contract. Defendants acknowledge that state agencies have taken approaches that “vary
significantly” to identify and vet trade secrets. Here, Planet T’s conduct was not governed by
statute and it did not have a contract in place that specifically required it to write “TRADE
SECRETS” or “Exempt from Chapter 119” to be afforded trade secret protection. Unlike Planet
T, parties contracting with the Department of Financial Services and Broward County would
have the benefit of knowing in advance what actions were statutorily or contractually necessary
to invoke trade secret protection. Instead, whether Planet T acted reasonably under the
circumstances to protect its trade secrets is for a jury to decide.
WHEREFORE, Plaintiff, PLANET T UNIFORMS, INC. (“Plaintiff”), respectfully
requests that this Honorable Court deny Defendants’ Motion for Summary Judgment on
Plaintiff's Trade Secret Claims filed by Florida Charter Foundation, Inc., Discovery Schools,
Inc. and Jon Thomas Rogers, related to Counts 17, 21 and 22 of the Third Amended Complaint,
together with such additional and further relief as this Court deems just and proper.
DATED: March 18, 2019.
CERTIFICATE OF SERVICE
IT HEREBY CERTIFY that a copy of the foregoing has been furnished via Email
through the Florida Courts E-Filing Portal to the service list below on March 18, 2019.
Respectfully Submitted,
DI PIETRO PARTNERS, LLP
901 E. Las Olas Blvd., Suite 202Fort Lauderdale, FL 33301
Primary: service@ddpalaw.com
Secondary: _paralegal@ddpalaw.com
Telephone: (954) 712-3070
Facsimile: (954) 337-3824
/s! Rodolfo Mayor
DAVID DI PIETRO, ESQ.
Florida Bar No.: 10370
david@ddpalaw.com
NICOLE MARTELL, ESQ.
Florida Bar No.: 100172
nicole@ddpalaw.com
RODOLFO MAYOR, ESQ.
Florida Bar No.: 111647
rudy@ddpalaw.com
SERVICE LIST
Christopher M. David, Esq.
FUERST ITTLEMAN DAviD & JOSEPH, PL
1001 Brickell Bay Drive, 32" Floor
Miami, Florida 33131
Emails: cdavid@fuerstlaw.com; tdavid@fuerstlaw.com;
and dmuller@fuerstlaw.com
John L. McManus, Esq.
GREENBERG TRAURIG, P.A.
401 East Las Olas Blvd., Suite 2000
Fort Lauderdale, Florida 33301
Emails: horkyk@gtlaw.com;
flservice@gtlaw.com; muehlfeldem@gtlaw.com
memanusj@gtlaw.com; brownc@gtlaw.com; yeargina@gtlaw.com
Robert P. Kelly, Esq.
Law OFFICE OF ROBERT P. KELLY
2514 Hollywood Boulevard, Suite 307
Hollywood, Florida 33020
Emails: robertpkellyesq@hotmail.com;
lawofficeofrobertpkelly@gmail.com
Preview
Filing # 86539140 E-Filed 03/18/2019 12:28:45 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY FLORIDA CASE NO.: CACE-14-001087(04) PLANET T UNIFORMS, INC., Plaintiff, v. FLORIDA CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, DISCOVERY SCHOOLS, _ INC., iUNIFORMS, INC., RICHARD SHELLOW, JON THOMAS ROGERS, AND SCOTT SZNITKEN, Defendants. / RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S TRADE SECRET CLAIMS COMES NOW Plaintiff, PLANET T UNIFORMS, INC. (“Plaintiff”), by and through the undersigned law firm, and pursuant to Florida Rule of Civil Procedure 1.510, hereby files this Response in Opposition to Defendants’ Motion for Summary Judgment on Plaintiffs Trade Secret Claims filed by Florida Charter Foundation, Inc., Discovery Schools, Inc. and Jon Thomas Rogers (collectively, the “Moving Defendants”), related to Counts 17, 21 and 22 of the Third Amended Complaint. For the reasons set forth below, the Moving Defendants are not entitled to judgment as a matter of law. I BACKGROUND 1. On January 16, 2014, Plaintiff, Planet T Uniforms, a supplier of school uniforms serving more than twenty charter and traditional public schools since 2003, sued Franklin Academy Charter School over the termination of a uniform services agreement. Although the *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/18/2019 12:28:45 PM.****claim originally presented itself as a routine breach of contract dispute, discovery later revealed the underpinnings of a civil conspiracy by Jon Thomas Rogers, Franklin Academy employees and Discovery Schools, Inc. (a consulting firm for Franklin Academy), to form a completely new entity to sell uniforms to their own students using misappropriated business information and confidential trade secrets obtained during a contractual relationship and bidding process with Planet T. 2. With the financial assistance of Franklin Academy consultant, Jon Thomas Rogers, Richard Shellow, who was Rogers’ good friend, incorporated iUniforms so that Franklin Academy insiders could sell school uniforms to their own students. The motivation for the use of a straw-man was simple: Florida law expressly prohibits employees of charter schools like Franklin Academy to self-deal and profit financially either directly or indirectly from the students they teach. Florida law also prohibits Franklin Academy employees from disclosing or using information not available to members of the general public for their personal gain or benefit or the personal gain or benefit of any other person or business entity. Violations of Florida Statute Section 112.313 can result in civil penalties, termination from employment, suspension from employment, demotion, reductions in salary, forfeitures of salary, and restitution of the pecuniary benefits received from the co-conspirators that participated in these actions. 3. Franklin Academy, Discovery Schools and Rogers, seek entry of summary judgment in their favor on Counts 17, 21 and 22 of Plaintiff's Third Amended Complaint which addresses their misappropriation of trade secrets action. Defendants argue that there is no genuine dispute of material fact that the alleged “trade secrets” derive no “independent economic value” to Planet T’s uniforms business. Fla. Stat. § 688.002(4)(a). Certainly, Planet T is not aweapons contractor or software developer and it does not have the reach or fortune of Coca-Cola, but it has an equally legitimate interest in protecting information that derives independent economic value for their local uniforms business. This includes confidential wholesale and retail pricing that Planet T developed over years of trial and error in the uniforms business. It was with this information that iUniforms was able to skip the learning phase of entering the garments industry and develop a highly profitable business off a steady stream of self-dealt clients. 4. Defendants also argue that Plaintiff failed to take “reasonable efforts under the circumstances to maintain the secrecy of the information.” Although lawyers have developed the habit of including boilerplate “confidentiality” notices on the most publicized emails, it was Planet T’s practice to only include such notices of confidentiality on emails that contained highly proprietary information. As a result, what affirmative actions, notices and disclaimers constitute reasonable efforts under the circumstances is a question of fact. Here, Planet T took affirmative steps to include the requisite notices in their emails and bate stamp the word “Confidential” on its attachments. Specifically, Planet T’s emails contain the phrase “MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW.” Very few of Planet T’s emails contain this language but those that do include the disclaimers satisfy the requirements for reasonable efforts under the circumstances. While the misappropriating parties clearly deemed Planet T’s disclaimers to be “generic, paper-thin, [and] Lilliputian” -- a jury may reasonably find that Planet T’s efforts were reasonable under the circumstances. 5. Defendants have failed to meet the heavy burden of proving an entitlement to summary final judgment where clearly a genuine dispute of material fact exists as to whether the information obtained by the misappropriating parties derives any actual or potential independenteconomic value. Fla. Stat. § 688.002(4)(a). Additionally, Planet T took affirmative efforts to safeguard their trade secrets by including the requisite notice of exemption under Chapter 119 and bate stamping the word “Confidential” on its attachments. While this may have meant nothing to the misappropriating parties, some of whom are trained attorneys, Planet T reasonably expected that the disclaimers were sufficient to prevent Franklin Academy from divulging this highly proprietary information. Given the invasive of Franklin Academy’s request for information, Planet T’s efforts to include those disclaimers were deliberate, calculated and reasonable (albeit uncomfortable) under the circumstances. For the reasons that follow, Defendants are not entitled to prematurely remove this case from the consideration of a jury and summary judgment should be denied. I. STATEMENT OF DISPUTED AND UNDISPUTED FACTS 6. Franklin Academy and its agents, including but not limited to Rogers, and Discovery Schools, demanded and were made privy to confidential daily sales reports, revenue reports, and information regarding wholesale versus retail pricing, that Planet T deems to derive actual or potential independent economic value. It is with this trade secret information that Planet T was capable of developing business forecasts and adopting specific techniques, business methods and models, to adequately fulfill the uniform needs of Franklin Academy. Specifically, the Retail/Wholesale Price List obtained by Franklin Academy provides confidential pricing information that is broken down by specific garments sold by Planet T and further into numerous sub-categories, including whether the garment is a (i) Polo Top (ii) Crewneck Sweatshirt (iii) Zip Front Sweat Jacket w/ Hood (iv) Zip Front Ripstop Nylon Jacket w/ Hood (v) Cardigan Sweater (vi) Sweatshirt (with and without hood) (vii) Crewneck PE T-Shit (viii) Crewneck PE Short (ix)Navy Jumper (x) White Peter Pan Blouse (xi) Plaid Skort (xii) Navy Pleated Skort w/ Buttons (xiii) Pants (xiv) Shorts. 7. The Retail/Wholesale Price List contains additional sub-categories for each of the specific garments identified above that provides confidential wholesale pricing for youths versus adults. The document further breaks these categories down by sex and color with their specific wholesale and retail pricing information. The document identifies the different inputs that go into arriving at “wholesale pricing” by identifying that it is comprised of the cost of the garment itself plus SI for the cost of embroidery and $f for the cost of shipping and handling from its vendor. It also provides whole sale pricing for plus, husky and junior sizes that are not as readily available to the consumer. Some of the specific garments identified on Planet T’s Retail/Wholesale Price List contain specific item identification numbers that are used internally. 8. A fledgling uniforms company like iUniforms could derive independent economic value from the information contained in Planet T’s Retail/Wholesale Price List. With no prior experience in the garments industry, iUniforms could choose what garments to offer Franklin Academy students based on the profit margins they were expected to gain from the information contained in Planet T’s records. iUniforms could also set its own target wholesale prices based on the information contained in Planet T’s Retail/Wholesale Price List. For example, iUniforms could negotiate wholesale prices directly with vendors based on the wholesale prices that they were offering Planet T. They would have learned how much they were expected to specifically profit from each garment if their negotiated wholesale prices were at or below the numbers identified in Planet T’s documents. Based on the specificity of Planet T’s Retail/Wholesale Price List, {Uniforms could predict profit margins based on the size and type of the garment.9. Franklin Academy and its agents were also made privy to confidential daily sales information for April 1, 2011 through November 30, 2011 and January 1, 2012 through October 21, 2012. Although Defendants seek to trivialize the information contained in Planet T’s charts — there is no dispute that an inexperienced company like iUniforms could have derived actual or potential independent economic value from the information contained therein. First, Planet T does not make its gross sales information readily available to the public. However, these charts go further than publishing its gross sales information by specifically documenting every sale of school uniforms for a given school year at Franklin Academy. Like its Retail/Wholesale Price List, the daily sales charts break down sales into sub-categories by whether the purchase was for a (i) blouse (ii) jumper (iii) short (iv) skort (v) pant (vi) other bottom or top such as a (vii) polo, jacket, sweatshirt, cardigan or physical education shirt. Together with Planet T’s Retail/Wholesale Price List, iUniforms was capable of reverse engineering Planet T’s business model by identifying the number of items that Franklin Academy students were actually purchasing and when those purchases were made to inform internal business decisions about wholesale and inventory. 10. To do this, ‘Uniforms would simply have had to divide the total sales for specific garments with the retail price of those garments to arrive at the number of pants, skorts, shorts, jumpers, blouses and shirts sold on any particular day, month or school year. With the wholesale price information, not only could iUniforms learn what they could profit from each item but also how much they were actually expected to profit from Franklin Academy sales. iUniforms could then decide what garments to offer Franklin Academy students and which ones to discontinue, if any. Given the seasonal nature of school uniform sales, the daily sales charts for Franklin Academy also reflect patterns in school uniform sales that impact how much inventory a schooluniforms supplier should keep on hand. In fact, Franklin Academy experienced uniform shortages shortly after iUniforms replaced Planet T as its supplier of school uniforms requiring Franklin Academy to implement multiple extensions for students to comply with the uniform policy. The patterns in sales that can be gleaned from Planet T’s daily sales charts would have provided iUniforms with valuable information about how to plan for the school year; having too little inventory at the beginning of the school year could lead to widespread non-compliance with the school’s uniform policy (which it did) while having too much unused inventory could lead to declining profits. 11. Franklin Academy argues that the confidential information was shared as part of Planet T’s alleged revenue contribution obligation with the school. However, the information contained in Planet T’s Retail/Wholesale Price List and daily sales charts for 2011 and 2012 go beyond any revenue disclosure requirements needed to determine the adequate revenue contribution, if any. 12. In fact, on December 4, 2012, Planet T emailed Franklin Academy’s Director (Defendant Scott Sznitken) wanting “to confirm that you received this very confidential information.” (emphasis added). On December 6, 2012, Sznitken, acknowledged that the information “certainly helps us get a better idea about how often parents are purchasing items.” This confidential information, which was not necessary for determining any revenue contribution, was requested by Director Sznitken on the eve of an important business meeting with Planet T when he asked “could you please provide me YTD sales information broken down by each item type? I would like to know how many units of each item you are selling.” The information he sought contained Planet T’s trade secrets that could derive actual or potentialindependent economic value to anyone interested in building a profitable school uniforms business; i.e. iUniforms which Rogers funded and was incorporated about two months later. 13. Although Planet T did not have written policies governing how to treat the dissemination of a “trade secrets,” it did have procedures that it followed to protect them. These procedures were adopted on the advice of counsel at the time and intended to adequately protect the trade secrets that Franklin Academy was demanding. Internally, Planet T employees were not granted access to any information that they deemed to be a trade secret and Planet T took affirmative steps to ensure that electronic correspondence containing “trade secrets” information and/or its attachments contained a specific disclaimer or notice to the recipient advising them that the information being provided therein was considered confidential and was to remain confidential. The disclaimers stated the following: “NOTICE THIS MESSAGE (INCLUDING ANY ATTACHMENTS) IS INTENDED ONLY FOR THE USE OF THE INVIDIVIDUAL OR ENTITY OF WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copy of this communication and all of its attachments is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return this message to us. Thank you.” 14, Unlike the vast majority of emails from Planet T to Franklin Academy and its agents, the emails containing the alleged “trade secrets” include this large, all-caps and boldnotice at the end of the email. Additionally, Planet T’s daily sales charts for 2012 contain a bold “Confidential” mark on every page of the attachment.' 15. In drafting a written Agreement for Sale of School Uniforms between Planet T and Franklin Academy, Planet T’s lawyers also included language that the parties “may obtain trade secrets (as defined by applicable law) as well as other information . . . in which the other party and/or the other Party’s affiliates have a proprietary interest.” See Third Amended Complaint, Exhibit “A” Section 8 Confidentiality. Although the parties did not execute the written Agreement, Planet T was aware that its confidential business information and trade secrets derived independent economic value and took affirmative steps, both in the negotiations process and in practice, to secure this information from third-parties. 16. On June 28, 2018, Franklin Academy filed a Motion to Appoint a Special Master or For Jn Camera Review of Alleged Trade Secrets to permit an independent review of over seven hundred fifty pages of documents, correspondence, letters, e-mails, etc., related to or identifying the “trade secrets” alleged in paragraph 177 of the Amended Complaint. See March 14, 2018 Supplemental Response to Request for Production No. 25. To date, no Special Master has been appointed. 17. On July 18, 2018, Franklin Academy, Discovery Schools and Rogers filed their Motion for Summary Judgment on Plaintiff's Trade Secret Claims, seeking entry of summary judgment on Counts 17, 21 and 22. Defendants also ask that the Court review several hundred pages of Planet T’s records and enter partial summary judgment as to those documents that Defendants deem to have disclaimers that are insufficient as a matter of law. ' Attachments also contain a second bate stamp marked “Confidential” followed by a specific document number. This particular bate stamp was added by Counsel as part of the production.lil. LEGAL STANDARD Summary judgment is a means of efficiently disposing of those actions in which there are no genuine issues of material fact and where the moving party is entitled to receive a judgment as a matter of law. Quilling v. County of Sumter, Florida, 726 So.2d 795, 795-96 (Fla. 5th DCA 1999). A movant is entitled to summary judgment only “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law.” Estate of Githens v. Bon-Secours-Maria Manor Nursing Care Center, Inc., 928 So.2d 1272, 1274 (Fla. 2d 2006). To preclude summary judgment, there must be some fact essential to a resolution of the legal questions raised by the case which is genuinely controverted. Wells v. Wilkerson, 391 So.2d 266, 267 (Fla. 4th DCA 1981). A dispute about a material fact is genuine only if the evidence is such that a jury could return a verdict for the non-moving party. McGory v. Metcalf, 665 So.2d 254, 258 (Fla. 2d DCA 1995). The law is well settled in Florida that the movant must prove conclusively the absence of any genuine triable issues, and the court must draw every possible reasonable inference in favor of the non-moving party. Harper v. Toler, 884 So.2d 1124, 1129 (Fla. 2d DCA 2004). The burden is initially on the movant. Dunlop v. Reynolds, 204 So.2d 754, 755 (Fla. 2d DCA 1967). Once the movant tenders competent evidence in support of its motion, the burden shifts to the non-moving party to come forward with competent opposing evidence. DeMesne v. Stephenson, 498 So.2d 673, 675 (Fla. Ist DCA 1986). The leading case regarding the burden of proof on a summary judgment is Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966), in which the Florida Supreme Court stated:The burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried .... This means that before it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against, it must first be determined that the movant has successfully met his burden of proving a negative, i.e., the non-existence of a genuine issue of material fact. He must prove this negative conclusively. The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. The rule simply is that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden. The non-moving party's right to trial should not be foreclosed by a summary judgment if it has not been conclusively shown that he cannot offer proof to support his position. McCoy v. Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983). In making this determination, the trial court must view “every possible inference in favor of the party against whom summary judgment” is sought. Maynard v. Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003). “[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000). Summary judgment is appropriate only if the facts are so crystallized that only questions of law remain. Rodriguez v. Saenz, 866 So. 2d 184, 186 (Fla. 5 DCA 2004). IV. ARGUMENT The Florida Uniform Trade Secrets Act defines as “trade secret” as follows: (4) “Trade secret” means 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. Fla. Stat. § 688.002(4) (2012). Damages for the misappropriation of trade secrets “can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation.” Fla. Stat. Ann. § 688.004. When “willful and malicious misappropriation exists, the court may award exemplary damages.” Jd. 1. There Remains a Genuine Dispute that the Information Contained in Planet T’s Retail/Wholesale Price List and Daily Sales Charts Derive Actual or Potential Economic Value A party proceeding under the Florida Uniform Trade Secrets Act need only describe the misappropriated trade secrets with “reasonable particularity.” Treco Int'l S.A. v. Kromka, 706 F. Supp. 2d 1283, 1286 (S.D. Fla. 2010). Planet T alleges that its Retail/Wholesale Price List and daily sales information for April 1, 2011 through November 30, 2011 and January 1, 2012 through October 21, 2012 derive actual or potential economic value. The term trade secret is “one of the most elusive and difficult concepts in the law to define. The question of whether an item taken from an employer constitutes a trade secret is of the type normally resolved by a fact finder after full presentation of evidence from each side.” See Furmanite America, Inc. v. T.D. Williamson, Inc., 506 F.Supp.2d 1134, 1141 (M.D.Fla.2007). “Whether a particular type of information constitutes a trade secret is a question of fact.” Calkins v. IPD Analytics, L.L.C., 2009 U.S, Dist. LEXTS 115461, *11 (S.D.Fla. Nov. 25, 2009). Defendants acknowledge that Planet T’s daily sales charts for the 2011 and 2012 school years “arguably contain[ ] information of economic value.” However, Defendants go on to trivialize Planet T’s charts by saying that they only reflect gross sales information. Defendantsmake no mention of Planet T’s Retail/Wholesale Price List which was sent to Franklin Academy together with its daily sales charts. See December 6, 2011 e-mail from planettuniforms@bellsouth.net to bernardo.ivy@franklin-academy.org (“Attached please find the details of daily sales reporting that we have available . . . [t]he retail-wholesale list is attached as well.”). Defendants’ footnote 10 states that the daily sales charts do not contain the cost of goods or other margin information but, again, ignores that this proprietary information is contained in Planet T’s Retail/Wholesale Price List which is also at issue. Documents containing strategic marketing plans, pricing information and purchase histories have been held to constitute trade secrets under Florida law. See, e.g., Sethscot Collection, Inc. v. Drbul, 669 So.2d 1076, 1078 (Fla. 3d DCA 1996) (clothing company’s confidential active customer list that contained a detailed purchasing history for each entity qualified as a trade secret entitled to injunctive protection); Thomas v. Alloy Fasteners, Inc., 664 So.2d 59, 60 (Fla. Sth DCA 1995) (holding that confidential order edit lists are trade secrets because they reveal appellee's pricing and profit structure); see § 812.081(1)(c), Fla. Stat. (“compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it.”). When the information is compiled using the time and resources of the entity claiming trade secrets, the information likely qualifies as trade secrets under Florida law if reasonable measures were taken to protect it. Fortiline, Inc. v. Moody, No. 12-CV-81271, 2013 WL 12101142, at *3 (S.D. Fla. Jan. 7, 2013)(citing East v. Aqua Gaming, Inc., 805 So. 2d 932, 934 (Fla. 2d DCA 2001) (finding customer list complied, in part, from confidential and non-public information to be a trade secret); Kavanaugh v. Stump, 592 So. 2d 1231, 1232 (Fla. Sth DCA1992) (“Customer lists can constitute trade secrets where the lists are acquired or compiled through the industry of the owner of the lists and are not just a compilation of information commonly available to the public.”). In a case that involved more complex aftermarket aviation services, the Court held that “pricing formulas, pricing terms, and procedures for tear downs” derived independent economic value. VAS Aero Servs., LLC v. Arroyo, 860 F. Supp. 2d 1349, 1359 (S.D. Fla. 2012). There, VAS Aero Services, LLC alleged that one of its employees improperly removed VAS documents containing confidential and proprietary information. /d. at 1351. The misappropriated Master Agreement included “detailed provisions, including, but not limited to, delivery terms, pricing structures, warehousing and storage conditions, and profit allocation.” /d. at 1352. The Court noted that the value of knowing the pricing terms and profit margins “hinges on the fact that if disseminated, a competitor, like [GA Telesis, LLC], could undercut VAS’s prices.” Jd. at 1359. Additionally, “the release of this information would significantly impact VAS on current and future projects.” The plaintiffs noted that “if a competitor obtained these documents, it could identify Boeing’s needs without investing significant time and resources in establishing a relationship with Boeing.” Jd. The actual and potential economic impact of knowing this information in addition to its unavailability to the general public led the court to conclude that it derived independent economic value. The fields of aviation and school uniforms are markedly different, but the parallels in the Court’s analysis of whether information derives economic value are extremely useful. Here, Planet T’s Retail/Wholesale Price List contains confidential pricing information that is broken down by the type of garments sold and further into numerous sub-categories. Each item contains confidential wholesale pricing for both youth and adult sizes which had been previouslynegotiated by Planet T with its vendors and manufacturers. The document further breaks these categories down by sex and color with their specific wholesale and retail pricing information for each. The document goes so far as to identify that the wholesale price is comprised of the cost of the garment itself plus $2.00 for the cost of embroidery and $1.00 for the cost of shipping and handling. Planet T’s chart allows its competitors to decipher the expected profit margins on a granular level for each item. Planet T’s Vice President, Maria Trotto Mark, testified that Franklin Academy “wanted our margins. They wanted our cost of goods. They wanted the items sold. They wanted the retail sales, selling price as well as our cost price.” DEPO MARIA TROTTO MARK, P. 88, L.1-3. Like in VAS, the value of knowing the pricing terms and profit margins centers on the fact that if disseminated, a competitor like iUniforms, could undercut Planet T’s prices. Obtaining Planet T’s daily sales information was also critical to them identifying Franklin Academy’s specific needs without investing significant time and resources in establishing a relationship. In fact, the information obtained was so economically valuable that iUniforms was able to build their business and sell uniforms within months of first being incorporated in February of 2013. With the promise of charter school expansions from Franklin Academy insiders, iUniforms was able to replicate the Planet T process to each school and make huge profits. ‘Uniforms added to its profits by not opening a physical store, which Planet T had, and using the labor of Franklin Academy employees to distribute school uniforms during school hours. Planet T’s Retail/Wholesale Price List and daily sales information for April 1, 2011 through November 30, 2011 and January 1, 2012 through October 21, 2012 contain much more than just gross sales information. If Planet T had to share its gross sales with Franklin Academy for purposes of computing an alleged revenue sharing obligation — it need only provide the lastline of its daily sales charts. However, Franklin Academy insiders demanded much more of Planet T because they sought this highly proprietary information to benefit investors and employees of iUniforms who also worked for Franklin Academy. In Rasier-DC, the Fourth District Court of Appeals deemed UBER’s aggregate number of pickups and gross payments to be unprotected because they were the bare output of its methods. Rasier-DC, LLC v. B & L Service, Inc., 237 So. 3d 374 (Fla. 4th DCA 20018). However, the Court held that UBER’s reports with specific dates and times of pick-ups and drop-offs were trade secrets. These reports contained granular data compiled by UBER with time stamps, longitude and latitudes and driver’s license plate numbers. Although the needs of a transportation tech and school uniforms company are different, the information deemed to be trade secrets in Rasier-DC are comparable to Planet T’s daily sales reports with its granular inputs for each specific garment. Together with Planet T’s Retail/Wholesale Price List, iUniforms was capable of reverse engineering Planet T’s business model by identifying the number of items that Franklin Academy students were actually purchasing and when those purchases were made to inform internal business decisions about wholesale and inventory. As a result, Planet T’s Retail/Wholesale Price List and daily sales information for the 2011 and 2012 school years are trade secrets. 2. Whether Planet T Acted Reasonably Under the Circumstances to Protect its Trade Secrets is a Question of Fact for the Jury to Decide Whether a party has taken reasonable steps under the circumstances to preserve its trade secrets is a factual inquiry that cannot be resolved on summary judgment. 7reco Int'l S.A. v. Kromka, 706 F. Supp. 2d 1283, 1287 (S.D. Fla. 2010); see Furmanite America, Inc. v. T.D. Williamson, Inc., 506 F.Supp.2d 1134, 1141 (M.D.Fla.2007) (“Courts are extremely hesitant to grant summary judgment regarding the fact-intensive questions of the existence of a trade secret or whether a plaintiff took reasonable steps to protect its trade secrets.”). Defendants argue whatno Court has ever held; namely, that if the alleged trade secret does not contain the magic words “TRADE SECRET” on each document or include a separate writing stating “exempt from Chapter 119,” then efforts were not reasonable under the circumstances as a matter of law. In 2011, Planet T adopted specific procedures on the advice of counsel with respect to sharing confidential business information and trade secrets with the intention that it remain protected. Planet T was aware that its confidential business information and trade secrets derived independent economic value but was lured by Franklin Academy insiders to share that information with the prospect of more business due to charter school expansions. In her deposition, Planet T’s Vice President testified that “she attempted not to send it” but Franklin Academy’s response “was, well, if you don’t give it to us we’re never going to meet.” DEPO MARIA TROTTO MARK, P. 96, L.4-13. However, Planet T made sure to take affirmative steps so that electronic correspondence containing “trade secrets” information and/or its attachments contained a disclaimer or notice to the recipient advising them that the information being provided was considered confidential and was to remain confidential. The disclaimers stated the following: “NOTICE THIS MESSAGE (INCLUDING ANY ATTACHMENTS) IS INTENDED ONLY FOR THE USE OF THE INVIDIVIDUAL OR ENTITY OF WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copy of this communication and all of its attachments is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return this message to us. Thank you.”Unlike legal and medical professionals who include boilerplate notices in every email regardless of its contents, Planet T, as a school uniforms supplier, never included this disclaimer unless there was a reason for it. Additionally, Planet T’s daily sales charts contain a “Confidential” mark on every page of the attachment. Planet T’s Notice was bold, in all-caps and larger font to ensure that its recipients would not overlook its significance. Several follow up emails to Franklin Academy employees reiterated the proprietary significance of the information and request that it remain confidential. Defendants argue that according to Sepro, Planet T’s notices and disclaimers were not enough as a matter of law. 839 So. 2d 781 (Fla. 1st DCA 2003). In that case, Sepro Corp. was under contract with the Florida Department of Environmental Protection (DEP) to assist with eradicating hydrilla from specified lakes when Griffin, LLC made a public records request for hydrilla studies. Sepro, 839 So. 2d at 782. After learning of Griffin’s public records request, Sepro wrote DEP designating as trade secrets: “(1) Any ReMetrix Bathymetric, Bosonic or Vegetation study; (2) Any RemEtrix Biomass study; (3) Any SePRO prescriptive treatment formula.” /d. In other words, Sepro submitted its trade secrets to a public agency without any notice or disclaimer whatsoever. The Court stated that “[w]ith regard to documents (including some that had been transmitted electronically) that were not labeled confidential . . . a DEP employee testified at the evidentiary hearing, ‘I don’t recall us getting anything in writing from SePRO regarding confidential.”” /d. at 783. (emphasis added). The Court held that the information was not a trade secret “because Sepro failed to timely mark the documents as confidential prior to the Department receiving a public records request” /d. (emphasis added). As a result, it was Sepro’s complete and utter failure to mark the documents with anything, not even a simple “confidential” designation, before they were sent to the public agency that led to theirlosing trade secret protection. It was in this context that the Court explained that a trade secret owner must label his trade secrets or specify in writing that the information is confidential and exempt under public records law upon delivery of the trade secret. /d. at 784. Critically, the Court did not say that in order for trade secrets to be protected they must also contain the magic words “TRADE SECRETS” or “Exempt from Chapter 119” as a matter of law. In fact, the Court in Sepro went on to affirm that “all information ‘that SePRO adequately and timely’ identified as ‘confidential, by stamping such documents as ‘confidential’ at the time the documents were submitted to DEP” were protected trade secrets. Jd. at 784. Contrary to Defendants’ argument — the Court’s own holding clarifies that it did not intend to create some talismanic rule that affords automatic protection under all circumstances. Even in the context of discussing trade secrets that Sepro failed to mark in a timely fashion, the Court said the documents “were not labeled confidential” and that “SePRO failed to timely mark the documents as confidential.” /d. at 783. Absent from that analysis was any mention that the documents also failed to be marked “TRADE SECRETS” or “Exempt from Chapter 119.” As was seen in Sepro, this is because citing to “Chapter 119” is not a specific requirement for maintaining trade secret protection. Ultimately, whether Planet T’s Notice that the information was “PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW” was reasonable under the circumstances is for a jury to decide. Finally, Defendants cite to several examples of state agencies that have developed different mechanisms to identify and vet claims of trade secret exemption from public records disclosure. The Department of Financial Services, for example, statutorily requires that a person file with the office a “notice of trade secret” that includes an affidavit certifying that the information “has value and provides an advantage or opportunity to obtain an advantage” andthat they have “taken measures to prevent the disclosure of the information.” See Fla. Stat. § 624.4213. By statute, every page of the document must also contain the words “trade secret.” /d. Those wishing to do business with Broward County Government are also contractually required to include a specific Notice; the specific language of which is set forth in the publicly available contract. Defendants acknowledge that state agencies have taken approaches that “vary significantly” to identify and vet trade secrets. Here, Planet T’s conduct was not governed by statute and it did not have a contract in place that specifically required it to write “TRADE SECRETS” or “Exempt from Chapter 119” to be afforded trade secret protection. Unlike Planet T, parties contracting with the Department of Financial Services and Broward County would have the benefit of knowing in advance what actions were statutorily or contractually necessary to invoke trade secret protection. Instead, whether Planet T acted reasonably under the circumstances to protect its trade secrets is for a jury to decide. WHEREFORE, Plaintiff, PLANET T UNIFORMS, INC. (“Plaintiff”), respectfully requests that this Honorable Court deny Defendants’ Motion for Summary Judgment on Plaintiff's Trade Secret Claims filed by Florida Charter Foundation, Inc., Discovery Schools, Inc. and Jon Thomas Rogers, related to Counts 17, 21 and 22 of the Third Amended Complaint, together with such additional and further relief as this Court deems just and proper. DATED: March 18, 2019. CERTIFICATE OF SERVICE IT HEREBY CERTIFY that a copy of the foregoing has been furnished via Email through the Florida Courts E-Filing Portal to the service list below on March 18, 2019. Respectfully Submitted, DI PIETRO PARTNERS, LLP 901 E. Las Olas Blvd., Suite 202Fort Lauderdale, FL 33301 Primary: service@ddpalaw.com Secondary: _paralegal@ddpalaw.com Telephone: (954) 712-3070 Facsimile: (954) 337-3824 /s! Rodolfo Mayor DAVID DI PIETRO, ESQ. Florida Bar No.: 10370 david@ddpalaw.com NICOLE MARTELL, ESQ. Florida Bar No.: 100172 nicole@ddpalaw.com RODOLFO MAYOR, ESQ. Florida Bar No.: 111647 rudy@ddpalaw.com SERVICE LIST Christopher M. David, Esq. FUERST ITTLEMAN DAviD & JOSEPH, PL 1001 Brickell Bay Drive, 32" Floor Miami, Florida 33131 Emails: cdavid@fuerstlaw.com; tdavid@fuerstlaw.com; and dmuller@fuerstlaw.com John L. McManus, Esq. GREENBERG TRAURIG, P.A. 401 East Las Olas Blvd., Suite 2000 Fort Lauderdale, Florida 33301 Emails: horkyk@gtlaw.com; flservice@gtlaw.com; muehlfeldem@gtlaw.com memanusj@gtlaw.com; brownc@gtlaw.com; yeargina@gtlaw.com Robert P. Kelly, Esq. Law OFFICE OF ROBERT P. KELLY 2514 Hollywood Boulevard, Suite 307 Hollywood, Florida 33020 Emails: robertpkellyesq@hotmail.com; lawofficeofrobertpkelly@gmail.com