Lee v. Cercoa, Inc., 81-1716

• Decision Date: 09 February 1983
• Docket Number: No. 81-1716,81-1716
• Parties: David Ching LEE, Appellant, v. CERCOA, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1

433 So.2d 1

David Ching LEE, Appellant, v. CERCOA, INC., a Florida corporation, Appellee.

No. 81-1716.

District Court of Appeal of Florida,

Fourth District.

Feb. 9, 1983.

Rehearing Denied July 7, 1983.

Edward F. O'Connor of O'Connor, Baylor, Callas & Elliott, Palm Beach Gardens, for appellant.

Dennis J. Powers of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellee.

OWEN, WILLIAM C., Jr., Associate Judge.

Appellee, Cercoa, Inc., a corporation engaged in the business of manufacturing and marketing polishing compounds for glass and plastic materials, obtained injunctive relief against its former employee, appellant David Ching Lee, restraining him from utilizing the corporation's trade secrets. We affirm.

For over two years, Lee worked for appellee as a production manager. During that period, Lee became familiar with the manufacturing processes used by his employer. There was no express agreement preventing Lee from disclosing or using appellee's manufacturing process. When appellee received information that Lee was going to use its trade secrets to start his own business to manufacture glass polishing compound, appellee terminated Lee and initiated this action.

The initial question for determination is whether a valid cause of action exists to protect an employer's trade secrets from disclosure or use by an employee (or former employee) absent an express contract restraining the employee from disclosing or using such secrets. We answer this in the affirmative. Where an employee acquires, during the course of his employment, a special technique or process developed by his employer, the employee is under a duty, even in the absence of an express contractual provision, not to disclose such skills, techniques or processes in his new employment for his own or another's benefit to the detriment of his previous employer. ¹ Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982); Ferroline Corp. v. General Aniline & Film Corp., 207 F.2d 912 (7th Cir.1953); International Election Systems Corp. v. Shoup, 452 F.Supp. 684 (D.C.E.D.Pa.1978); Greenberg v. Croydon Plastics Co., 378 F.Supp. 806 (D.C.E.D.Pa.1974); Microbiological Research Corp. v. Muna, 625 P.2d 690 (Utah 1981); Packard Instrument Co. v. Reich, 89 Ill.App.3d 908, 45 Ill.Dec. 266, 412 N.E.2d 617 (1980); Capsonic Group, Inc. v. Plas-Met Corp., 46 Ill.App.3d 436, 5 Ill.Dec. 41, 361 N.E.2d 41 (1979); Ungar Electric Tools, Inc. v. Sid Ungar Co., 13 Cal.Rptr. 268, 192 Cal.App.2d 398 (1961).

Appellant next contends that the appellee failed to sustain its burden of proof that trade secrets were involved in the manufacture of glass polish compound.

A trade secret, whether it be a secret formula, process, pattern, device, or compilation of information is property which its owner makes use of to the exclusion of others. 2 Callman, Unfair Competition, Trademarks & Monopolies (3rd Ed.), Sec. 51.1, pp. 349-350. As a property right, the trade secret is protected against its appropriation or use without the owner's consent. The secret is of value only so long as it remains a secret. In an action based upon a secret process, the plaintiff must establish that (a) the process is a secret, (b) the extent to which the information is known outside of the owner's business, (c) the extent to which...