To state a claim for trade libel, a plaintiff “must allege: (1) a falsehood; (2) has been published, or communicated to a third party; (3) when the defendant publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff; (4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and (5) special damages are proximately caused as a result of the published falsehood.” Border Collie Rescue, Inc. v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D. Fla. 2006) (citing Stewart Title Guar. Co. v. Title Dynamics, Inc., No. 2:04-CV-316-FTM-33SPC, 2005 WL 2548419, at *2 (M.D. Fla. Oct. 11, 2005)

In order to succeed on their defamation claim, Plaintiffs must demonstrate that: (1) Defendant published a false statement; (2) about the Plaintiffs; (3) to a third party; and (4) the falsity of the statement caused injury to Plaintiffs. Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330, 1348 (M.D. Fla. 2006); Bass v. Rivera, 826 So. 2d 534, 534 (Fla. 2d DCA 2002). Defendant argues that a complete defense to defamation is established if the alleged defamatory statement was "substantially true" and was made with good motives.

Plaintiffs allege that Guckavan and Moore breached their fiduciary duties to SPS and RRR in engaging in the acts alleged in the complaint. As explained in Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330 (M.D. Fla. 2006), the elements of a claim for breach of a fiduciary duty are "(1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach." Id. at 1342.

This is insufficient to defeat defendants' motion for summary judgment. Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330, 1346 (M.D. Fla. 2006) (a plaintiff must support each element of the Lanham Act claim with more than mere allegations). Plaintiff is required to go beyond the pleadings to show that there are genuine issues of material fact for trial.

RESTATEMENT (SECOND) OF TORTS § 766 cmt. v. (1979). Moreover, under Florida law, a plaintiff can maintain a cause of action against a third party for tortious interference in a contract even though he might not be able to enforce the underlying contract. Border Collie Rescue, Inc. v. Ryan, 418 F.Supp.2d 1330, 1344 (D.Fla.2006) (citing United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla. 1979)). This fact suggests that the terms of the underlying contract and the parties' expectations should have little bearing on the law that governs third party interference in that contract.

On the other hand, if the advertisement is literally true but misleading, the plaintiff must present evidence "that the relevant consumer population was actually deceived." Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330, 1347 (M.D. Fla. 2006) (citing Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 323 (6th Cir. 2001)). "Eleventh Circuit precedent requires the plaintiff to present evidence of deception in the form of consumer surveys, market research, expert testimony, or some other appropriate form."

Under FUTSA, ActivEngage must prove "(1) [it] possessed secret information and took reasonable steps to protect its secrecy and (2) the secret it possessed was misappropriated." Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330, 1338 (M.D. Fla. 2006) (citations omitted). Similarly, under DTSA, ActivEngage must show (1) it possessed information of independent economic value it lawfully owned and for which it took reasonable measures to keep secret; and (2) Smith used or disclosed that information despite a duty to maintain its secrecy.

To show misappropriation of a trade secret under the FUTSA, a claimant must prove that: 1) the plaintiff possessed secret information and took reasonable steps to protect its secrecy; and 2) the secret it possessed was misappropriated. See Fla. Stat. § 688.002; Border Collie Rescue, Inc. v. Ryan, 418 F.Supp.2d 1330, 1338 (M.D. Fla. 2006). In a trade secret action, the plaintiff bears the burden of demonstrating the specific information it seeks to protect is a trade secret.

Ranbaxy has brought claims for trade libel and tortious interference with business relations. Under both Florida and New Jersey law, FDB is only liable for those claims if it published false information. Compare Border Collie Rescue, Inc. v. Ryan , 418 F.Supp.2d 1330, 1348 (M.D. Fla. 2006) (trade libel), and Cherestal v. Sears Roebuck & Co. , No. 6:12–cv–1681, 2014 WL 644727, at *4 (M.D. Fla. Feb. 19, 2014) (tortious interference), with Arista Records, Inc. v. Flea World, Inc. , 356 F.Supp.2d 411, 427–28 (D.N.J. 2005) (trade libel), and E. Penn Sanitation, Inc. v. Grinnell Haulers, Inc. , 294 N.J.Super. 158, 682 A.2d 1207, 1218 (N.J. Super. Ct. App. Div. 1996) (tortious interference). The operative question is thus whether FDB's published statements regarding Absorica are false.

To show Cardenas breached his fiduciary duty, Savis must show: "(1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach." Treco Int'l S.A. v. Kromka, 706 F. Supp. 2d 1283, 1288 (S.D. Fla. 2010) (quoting Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330, 1342 (M.D. Fla. 2006)). "The duty of loyalty is part of a fiduciary duty, and a breach of a duty of loyalty gives rise to a breach of fiduciary duty claim."