Florida's legal system is based on common law, which is interpreted by case law through the decisions of the Supreme Court of Florida, Florida District Courts of Appeal and Florida circuit courts.

On 8 May 2023, Florida enacted SB 264 “Interests of Foreign Countries”, which came into effect on 1 July 2023. The law limits and regulates the sale, purchase and ownership of certain Florida property by “Foreign Principals” from particular “Countries of Concern”, including the People’s Republic of China (PRC), the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro and the Syrian Arab Republic.

“Foreign Principals” include:

• any individual domiciled in a Country of Concern who is not a United States citizen or lawful permanent resident, and any entity controlled by such an individual that was formed to own Florida real estate; and
• any entity formed or having headquarters in a Country of Concern, and all its subsidiaries.

The new law will apply generally to the following Florida property.

• Agricultural land.
• Property within ten miles of any “Military Installation” (as defined in the statute) or any Critical Infrastructure (as defined in the statute) in Florida (collectively, “Restricted Property”), except that the new law restricts Foreign Principals of the PRC with respect to all Florida properties. The new law does provide a limited exception for an individual’s purchase of a residential property of two acres or less, provided that such individual holds a non-tourist visa allowing them to remain in America, and the property is not within five miles of any Military Installation. The statute does not contemplate an exemption or approval process, but does require Foreign Principals owning Restricted Property to register with the State.

Foreign Principals of any of the Countries of Concern that own any agricultural land in Florida prior to 1 July 2023 must register such land with the Florida Department of Agriculture and Consumer Services by 1 January 2024. Failure to register properly will result in the imposition of fines.

Foreign Principals of any of the Countries of Concern that own any real property within ten miles of any Military Installation or any Critical Infrastructure facility in Florida prior to 1 July 2023 must register such property with Florida’s Department of Economic Opportunity by 31 December 2023. Failure to register properly will result in the imposition of fines.

Any Foreign Principal of the PRC who owns any real property in Florida prior to 1 July 2023 will be required to register such property with Florida’s Department of Economic Opportunity by 31 December 2023. Failure to register properly will result in the imposition of fines.

Foreign Principals may, on or after 1 July 2023, acquire Restricted Property by devise or descent, through the enforcement of security interests, or through the collection of debts, but must sell such Restricted Property within three years after acquisition.

This is not applicable in Florida.

This is not applicable in Florida.

The most common forms of legal entity are:

• Sole Proprietorships;
• corporations, which are governed by the Florida Business Corporation Act (FBCA) (Sections 607.0101 et seq., Fla. Stat.);
• Limited Liability Companies (LLCs), which are governed by the Florida Revised Limited Liability Company Act (FRLLCA) (Sections 605.0101 et seq., Fla. Stat.);
• General Partnerships (GPs) and Limited Liability Partnerships (LLPs), which are governed by the Florida Revised Uniform Partnership Act of 1995 (FRUPA) (Sections 620.81002 et seq., Fla. Stat.); and
• Limited Partnerships (LPs) and Limited Liability Limited Partnerships (LLLPs), which are governed by the Florida Revised Uniform Limited Partnership Act of 2005 (FRULPA) (Sections 620.1101 et seq., Fla. Stat.).

Florida law also provides for:

• Professional Corporations and LLCs, which are governed by the Florida Professional Service Corporation and Limited Liability Company Act (Sections 621.01 et seq., Fla. Stat.); and
• Nonprofit Corporations, which are generally covered by the Florida Not For Profit Corporation Act (Sections 617.01011 et seq., Fla. Stat.).

There are many different issues to consider when choosing the appropriate business entity for a particular business context, such as the form and flexibility of management structure, investor liability, the intended size and purpose of the entity, and tax treatment.

Florida is considered a tax-friendly state with no individual income tax. “C” corporations that do business in Florida pay a relatively low 5.5% income tax, before exemptions that often reduce the effective tax rate. Florida levies no state income tax on sole proprietorships, S corporations, partnerships or LLCs.

Sole Proprietorship

A sole proprietorship is an unincorporated business owned and operated by a single individual, with no legal distinction between the business and the owner. Accordingly, a sole proprietorship provides no legal protection to the owner for liabilities arising out of the business. It is unincorporated and requires no legal action or documentation, although when not operating under the owner’s legal name it must register a fictitious name (ie, a “doing business as” name) with the Florida Division of Corporations (DOC). Although they give their owner complete control and have no entity formation costs, sole proprietorships are uncommon because they have significant disadvantages in addition to unlimited liability, such as difficulties in raising capital, business valuation and selling the business.

Corporations

Corporations are owned through shares, and the owners of a corporation are called “shareholders”. Corporations have perpetual duration until dissolved.

Notably, corporations have limited liability because they are treated for all legal (including tax) purposes as being separate from their owner(s). Except in extraordinary circumstances, a shareholder’s liability for corporate obligations is only to pay the full price for their shares.

The governing documents of a Florida corporation are its Articles of Incorporation (adopted by an incorporator), By-laws (adopted by the Shareholders or Board of Directors) and possibly a Shareholders’ Agreement (agreed among the shareholders and the corporation).

A C corporation is taxed at the entity level, and any dividends distributed to its shareholders will be “double taxed” at the shareholder level.

By contrast, the profits of an S corporation are deemed distributed directly to its shareholders and only taxed at the shareholder level. S corporations, like partnerships, are pass-through entities for tax purposes, so unlike C corporations they have no entity-level tax.

Tax laws generally restrict S corporations to no more than 100 shareholders, consisting only of US citizens and resident aliens and certain trusts and tax-exempt organisations, and with only one class of shares (common shares), although differences in voting rights are permitted.

Florida law also provides for hybrid entities known as benefit corporations and social purpose corporations. These types of corporations occupy the middle ground between traditional for-profit corporations and not-for-profit entities.

LLCs

Florida LLCs share the characteristics of both partnerships and corporations. Like corporations, LLCs provide their owners with limited liability and, like partnerships, LLCs are generally pass-through entities (partnerships or S corporations) for federal tax purposes. LLCs are a popular choice for small businesses because they are not restricted by the ownership and single class of stock restrictions burdening S corporations.

LLC owners are called members, and LLC ownership interests are called membership interests. A Florida LLC must have at least one member, or two or more members to qualify as a partnership for federal income tax purposes

A Florida LLC’s governing documents are its Articles of Organisation and Operating Agreement, which classify the LLC as being member- or manager-managed.

Operating Agreements provide for ownership, capital contributions, profit/loss allocation percentages, distributions, members’ rights and duties (including transfer restrictions), and the LLC’s management and operations.

Florida LLCs are not required to have Operating Agreements, nor are Operating Agreements publicly filed. However, LLCs without Operating Agreements are governed by the default rules and regulations of Florida law, with potentially unintended consequences. With certain exceptions, the LLC Operating Agreement’s provisions will supersede statutory default rules.

While Operating Agreements are particularly important for multi-member LLCs, single-member LLCS should also use them to support the member’s limited liability and tax treatment (eg, specifically providing for treatment as a disregarded entity to avoid separate tax return filing).

Unlike Delaware, Florida permits a member to disassociate, and permits the Operating Agreement to provide for voluntary disassociation by a member, but also provides that such member may incur liability for wrongful disassociation.

Unlike a handful of other states, including Delaware, Florida does not permit a “series LLC”. In states permitting series LLCs, each “series” of the LLC may act almost like a separate entity. Florida allows each series of a series LLC validly formed elsewhere to register as a foreign LLC.

GPs and LLPs

The FRUPA defines a partnership as an association of two or more people to carry on a business for profit, as co-owners. Partnerships generally provide extremely flexible frameworks for business governance and management.

GP partners are jointly and severally liable for all partnership liabilities, including the liabilities and torts of any partner acting in the ordinary course of business or as the partnership authorises. Unlike corporations or LLCs, all assets of each GP partner are at risk to satisfy the obligations of the partnership, rather than just the capital contributed to the entity.

The FRUPA also authorises LLPs, which are commonly used in professional businesses like law firms, accounting firms, medical practices and wealth managers. LLPs have no general partner with unlimited liability, and only the individual LLP partners’ contributed capital is at risk. Although LLP partners are not personally liable for the LLP’s obligations, they do remain liable for their own torts and those of someone acting under the partner’s direct supervision.

Partnerships are governed by Partnership Agreements, and written Partnership Agreements are recommended. The FRUPA has a set of default rules that will govern issues not addressed in the Partnership Agreement. Most, but not all, of the rules in the FRUPA may be superseded in the Partnership Agreement.

LPs and LLLPs

An LP consists of general partners who have unlimited liability for all partnership obligations, and limited partners who are at risk only for their capital contributions. In Florida (unlike many other states), limited partners enjoy this limited liability even if they participate in the management and control of the LP.

Each general partner has an equal right to manage and conduct LP business. Limited partners have no company involvement and no daily responsibilities, except for veto or other rights as negotiated in the LP Agreement.

The FRULPA also authorises Florida LLLPs, which provide the general partner(s) with limited liability. An LP may be formed as, or may later become, an LLLP pursuant to the FRULPA. An LLLP will typically have a written Limited Liability Limited Partnership Agreement.

Incorporators, typically consisting or individuals or corporate service companies, form Florida corporations by filing the Articles of Incorporation with the DOC, designating a registered agent.

Florida LLCs are organised by filing Articles of Association with the DOC, designating a registered agent.

Florida has no legal requirements for the formation of a GP other than an oral or written agreement, and Florida GPs may file a Florida Partnership Registration Statement with the DOC but do not need to do so. Registration creates a public record for the GP and allows the DOC to certify the GP’s standing, which may help the GP in financing and business activities, as well as allowing mergers or conversions.

Partnerships converting to LLPs must file a Statement of Qualification with the DOC.

LPs and LLLPs must file a Certificate of Limited Partnership with the DOC or be treated as GPs with unlimited joint and several partnership liability.

Every Florida corporation, LLC, LP and LLLP must file an Annual Report (and pay the required fee) with the DOC between 1 January and 1 May of each year to remain in good standing and avoid involuntary dissolution.

Management structures differ according to entity type.

Corporations

A Board of Directors governs and manages a corporation’s business and affairs. Corporations must have officers that the Board appoints, including an officer responsible for preparing minutes and authenticating required records. Corporation shareholders generally elect directors by a plurality of the votes cast by all shares entitled to vote at a shareholders’ meeting where a quorum is present.

A Shareholders’ Agreement may be executed to govern the management of the corporation’s business and affairs, and the relationship among the shareholders, the directors and the corporation. If not contrary to public policy, the agreement mayvary the provisions of the FBCA. Shareholders’ Agreements terminate automatically if the corporation goes public.

LLCs

Florida LLCs offer considerable capital structure and management flexibility. Members manage LLCs unless the Articles of Organisation or Operating Agreement expressly provide for the LLC to be manager-managed.

In a manager-managed LLC, managers have equal rights in the management and conduct of the LLC’s ordinary course of business activities and affairs. However, even in a manager-managed LLC, except as otherwise provided in the Operating Agreement, the members owning a majority-in-interest of the LLC have the right to approve certain of the LLC’s non-ordinary course activities and affairs.

Members of a member-managed LLC participate in the LLC’s management, with each member’s vote determined by their percentage interest in the LLC’s profits. Unless an Operating Agreement provides otherwise, (a) members owning a majority-in-interest of the LLC must approve all the LLC’s activities and affairs, and (b) a member of a member-managed LLC, and the manager(s) of a manager-managed LLC, can delegate power to manage and control the LLC to officers or other persons.

GPs, LPs and LLLPs

In contrast, Florida GPs, LPs and LLLPs are typically managed by general partners, and each general partner is an agent for the partnership and can act on the partnership’s behalf when dealing with third parties. General partners can enter into contracts on the partnership’s behalf, deal with third parties, hire staff and borrow money on the partnership’s behalf.

On the other hand, limited partners in Florida LPs and LLLPs do not generally participate in the day-to-day management or operations of the business and have very limited or no authority, although the FRULPA has somewhat contradictory provisions on this point, with sub-section (1) of Section 620.1406 stating that any matter relating to the LP’s activities may be exclusively decided by the general partners, while sub-section (3) grants additional approval rights to the limited partners for many of the same matters listed in Section 620.1406.

In Florida, directors have wide discretion in exercising their business judgement, and Florida courts accord substantial deference to actions protected by business judgement. Directors of a corporation also owe fiduciary duties to carry out their responsibilities in good faith, with ordinary care and in the best interests of the company. A director will not be held monetarily liable for breaching these duties unless the breach consists of:

• a knowing criminal violation;
• a transaction involving self-dealing;
• an improper distribution to shareholders;
• conscious disregard for the best interest of the corporation; or
• wilful misconduct.

By contrast, LLCs have greater flexibility than corporations, and the FRLLCA allows the members of an LLC to alter or eliminate a fiduciary duty in the LLC Operating Agreement if it is not manifestly unreasonable (for example, altering the duty of care to prohibit only wilful or intentional misconduct or a knowing violation of law).

With Florida partnerships, neither a partner’s fiduciary duties of loyalty and care nor the obligation of good faith and fair dealing may be eliminated entirely in the Partnership Agreement, although the partners may identify by agreement activities that do not violate the duty of loyalty, and may determine standards by which to measure good faith.

Florida law shields shareholders and LLC members from entity debts and other liabilities, and “piercing the corporate veil” is considered an extraordinary remedy. Florida’s leading Supreme Court decision on this point stated that shareholder immunity from liability exists unless the corporation was “formed or used for some illegal, fraudulent, or other unjust purpose which justifies piercing of the corporate veil”. Other jurisdictions, such as Delaware, have emphasised an “alter ego” (mere instrumentality) concept that could lead to piercing where there is such an overlap between the corporation and its shareholder(s) that the corporation is merely a façade for its owners. Florida courts have occasionally employed an “alter ego” test, but ultimately the element of fraud or proof of shareholder misconduct is key in Florida.

An employer-employee relationship is governed by the terms of an employment agreement, an employer’s policies overseeing the workforce, and applicable Florida and federal law. In the absence of a contract between employer and employee, Florida has adopted the at-will employment doctrine, which provides that an employee not subject to an employment agreement with a definite term of duration may be terminated for any legal reason or no reason at all. Outside of the bargained-for provisions in an agreement and the employer-mandated policies, both federal and Florida laws apply.

Wages, including minimum wage and overtime, are governed by the federal Fair Labor Standards Act, Florida’s Minimum Wage Act, Fla. Stat. Section 448.110, and Fla. Stat. Section 448.08, which provides protection for employees seeking to recover unpaid compensation. For eligible employers with at least 50 employees, the federal Family and Medical Leave Act provides up to 12 weeks of unpaid leave during a 12-month period for an employee to deal with a serious medical condition, among other qualifying reasons, requiring the affected employee to have the ability to return to the same – or an equivalent – position upon returning to work.

The Occupational Safety and Health Act of 1970 provides parameters for ensuring employee safety at the workplace. Furthermore, restrictive covenants like non-competition, non-solicitation and non-disclosure/confidentiality are memorialised via the specific terms in the employment agreement or in standalone restrictive covenant agreements, but any such restraint must be “reasonably necessary” to protect legitimate business interests under Fla. Stat. Section 542.335.

Regarding employee leave, unlike many states Florida does not require a private employer to provide its employees with paid vacation time, paid sick leave or paid holiday leave.

Notwithstanding Florida’s status as an at-will employment state, any employee separation must not be motivated by an employer’s discriminatory animus in exclusion to an employee’s protected rights. In such a case, the Florida Civil Rights Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act and local laws like Miami-Dade County Ordinance Section 11A-26 protect employees who are the subject of discrimination leading to an adverse employment act or persistent harassment.

Generally, for an employment contract in Florida to be valid, the elements of a contract must be present: mutual assent to material terms set forth in an offer, acceptance and consideration. While an agreed-upon term of duration in an employment contract does not trigger any Florida employment laws, the scope and duration of a restrictive covenant between an employer and employee is governed by Fla. Stat. Section 542.335. Similarly, unlike employment agreements, restrictive covenants must be in writing in order to be enforceable against an employee.

Florida does not recognise a minimum or maximum working time for salaried employees other than laws governing child labour under Fla. Stat. Section 450.081, which limit daily and weekly work hours for minors.

Overtime is covered by the Fair Labor Standards Act, which prescribes that any hours worked over 40 in a seven-day period entitle a non-exempt employee to 1.5 times their regular rate of pay for the excess hours. Florida has codified a daily overtime limit for manual labourers, which requires the payment of overtime premium pay for hours worked over ten in a day in the absence of a written agreement under Fla. Stat. Section 448.01.

There are, however, exemptions to overtime for certain professions, classes of employees or other criteria principally set forth by the Department of Labor. A common misconception among management is that paying an employee a salary in lieu of an hourly wage automatically exempts the salaried employee from overtime. For a “salaried” employee that is not exempt from overtime, this may create issues for an employer who has the burden of maintaining sufficient record-keeping of an employee’s weekly work hours and the onus of providing the payment of overtime premium at the correct effective hourly rate.

As an employment at will state, in the absence of an employment contract that specifies a term of duration or specified notice, an employee may be separated from an employer – through termination or resignation – for a legitimate, non-discriminatory reason. Similarly, in the absence of a requirement in an employment contract or collective bargaining agreement, an employer in Florida is not required to offer or provide severance or separation pay upon an employee’s separation of employment. Where an employer is bound by the terms of an employment agreement, any enforceable terms regarding separation of employment should control the scope of termination as with or without cause, required notice in advance of termination or resignation, and separation compensation.

When an employer is seeking to lay off multiple employees, the impact on any business unit or company division must be considered to prevent a disparate impact under Equal Employment Opportunity standards. Furthermore, the Worker Adjustment and Retraining Notification Act (WARN Act) is a federal statute (Florida does not have a mini-WARN Act) requiring employers with 100 or more full-time employees (not counting workers who have fewer than six months on the job) to give employees at least 60 days' advance written notice before closing a plant or worksite affecting 50 or more employees, or before conducting a mass layoff affecting at least 50 employees and 1/3 of the worksite’s total workforce or 500 or more employees at the single site of employment during any 90-day period. Not all dislocations require a 60-day notice; the WARN Act makes certain exceptions to the requirements when employers can show that layoffs or worksite closings occur due to faltering companies, unforeseen business circumstances and natural disasters. In such instances, the WARN Act requires employers to provide as much notice to their employees as possible.

Florida is a right to work state, meaning that employees have the right to refrain from organising and forming, joining or assisting unions, which must not affect an employee’s candidacy for employment.

Under its Constitution, the State of Florida may not impose an income tax on individuals. As such, wages paid by an employer doing business in the State of Florida to an employee situated in the State of Florida are not subject to a Florida state income tax. Other than amounts required to be paid/withheld for federal tax purposes, no income or social security taxes under Florida law are required to be withheld.

Employers doing business in the State of Florida are required to pay re-employment taxes to the State of Florida, which are deposited into the Unemployment Compensation Trust Fund for purposes of paying re-employment assistance benefits to eligible claimants. The tax is generally 2.7% on the first USD7,000 of wages paid to each employee in a calendar year.

The most common taxes required to be paid by a company doing business in Florida are state corporate income taxes, sales taxes and ad valorem taxes.

Under its Constitution, the State of Florida may not impose an income tax on pass-through entities such as S corporation and partnerships. The State of Florida does impose a state corporate income tax on C corporations, at the rate of 5.5%. As such, entities doing business in the State of Florida have a choice (based on choice of entity) of whether or not to be subject to corporate income taxes in the State of Florida. In general, for an out-of-state C corporation to be subject to Florida corporate income taxes, such corporation must have a nexus to the State of Florida such as an office or fixed place of business in the State of Florida, maintaining inventory, providing services and having employees in the State of Florida.

All companies doing business in the State of Florida (other than dealers) that are engaged in selling tangible personal property in the State of Florida or that lease property in the State of Florida are subject to Florida sales taxes, at the rate of 6% of the sales price. Sales to a registered dealer who provides a valid resale certificate are not subject to Florida sales tax (such Florida sales tax is passed on to the ultimate end user).

A business owning real property in the State of Florida is required to pay ad valorem taxes. The tax is imposed on the assessed value of Florida real estate as determined by the property appraiser for the county in which such property is situated. The tax rate is based on the millage rate levied by applicable governmental authorities such as counties, school boards, municipalities and special districts.

Several other excise taxes may be imposed in the State of Florida depending on the type of business being conducted in the state, such as excise taxes on motor fuel, tobacco products and the operation of commercial motor vehicles.

The State of Florida offers various types of tax credits and other incentives to those businesses doing business within its borders that qualify for such incentives, including corporate income tax incentives and sales and use tax incentives, which are applicable to qualifying business engaging in various industries within the State of Florida, including energy, film and production, and research and development.

In general, if a group of C corporations files a consolidated return for federal income tax purposes, such affiliated group may also file a consolidated return for Florida corporate income tax purposes if:

• each member of the group consents to such filing;
• such group has filed a consolidated return for federal income tax purposes for the same taxable year; and
• the component members of the group for Florida corporate income tax purposes are identical to the component members for federal income tax purposes.

Whether a group of C corporations is considered “affiliated” for Florida corporate income tax purposes is based on whether such group is affiliated for federal income tax purposes. If the parent corporation of an affiliated group is not subject to Florida corporate income taxes, a consolidated return cannot be filed.

The Florida corporate income tax generally “piggybacks” off a corporation’s taxable income for federal income tax purposes, subject to certain adjustments (and apportionment rules). As such, many of the same limitations that apply for federal income tax purposes apply for Florida corporate income tax purposes.

Under applicable Florida law, if a C corporation doing business in Florida amends its federal income tax return or has its federal income tax return adjusted as a result of an examination or other proceeding, and such adjustment would affect such corporation’s computation of Florida corporate income tax, such corporation must file an amended tax return or report with the Florida Department of Revenue reflecting such change(s) to its federal income tax return within 60 days of such adjustment being final and binding. As such, if applicable transfer pricing rules for federal income tax purposes cause an adjustment to a C corporation’s federal income tax return, similar adjustments (at least in part) may be required to be filed with the Florida Department of Revenue and any corresponding Florida corporate income taxes paid.

The State of Florida has various statutory and judicial doctrines designed to prevent taxpayers from circumventing those activities that are meant to be taxed in the State of Florida.

In addition to federal laws, the Florida Antitrust Act of 1980 is codified in Chapter 542 of the Florida Statutes and is intended to complement the body of federal law prohibiting restraints of trade or commerce. Florida does not have a state-specific pre-merger notification or review process, but does require post-merger notification.

Currently, a post-merger notification filing is required regardless of the business entity involved, including corporations, limited liability companies and partnerships. The FBCA, the FRUPA and the FRLLCA all provide that once an organisation has approved a merger, the entity must file a certificate of merger or articles of merger, as applicable, with the state. These forms, along with the applicable filing fee, can all be found online on the website of the Florida Department of State's Division of Corporations, at www.Sunbiz.org.

These filings must contain the date the merger is effective, a statement that the merger was approved by the organisations’ governing laws, and the name and form of the surviving entity. For the surviving entity, the filing must also specify the governing law and whether or not this entity survived the merger or was created pursuant to it.

There are currently no state-specific laws relating to filing pre-merger notifications. However, in prior sessions of the Florida Legislature, bills have been proposed in both houses that would require the filing of a merger notification with the Office of the Attorney General prior to the closing of certain healthcare transactions that either require a filing under federal law or would result in a combined revenue of USD50 million.

The Florida Antitrust Act of 1980 regulates anti-competitive conduct in business. Section 542.18 of the Act corresponds to Section 1 of the federal Sherman Antitrust Act, which prohibits agreements or conspiracies between competitors that restrain trade; conduct prohibited by the federal Act is generally also prohibited by the Florida Act. However, the federal Act is applicable only to interstate commerce while the Florida Act applies to conduct either taking place entirely within Florida or impacting residents of the state. Similarly, the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) corresponds to the Federal Trade Commission Act, and conduct violating the federal Act may also violate FDUTPA. Both the Florida Antitrust Act and FDUTPA permit a private right of action as well as regulatory enforcement by the state. Remedies available under either Act include damages, fines, potential criminal sanctions and equitable relief.

Section 542.18 of the Florida Antitrust Act declares unlawful any contract, combination or conspiracy in restraint of commerce or trade in Florida. Examples of prohibited conduct include price fixing, tying arrangements, certain reciprocal dealing, market divisions by geographic area, and customer allocations. While the foregoing agreements may be illegal “per se”, Florida also allows proof of a violation by “rule of reason”, based upon the parties’ ability to affect price or output in a way that excludes or potentially excludes competitors from a specific and defined market. Trade or commerce under the Act includes any economic activity involving commodities or services, with narrow exceptions for heavily regulated fields that are given immunity under the federal Act, such as commercial banking, broadcasting and certain utilities.

Section 542.19 of the Florida Antitrust Act of 1980 mirrors Section 2 of the Sherman Antitrust Act and prohibits the monopolisation of trade or commerce within Florida. Conduct prohibited by the federal Act is generally also prohibited by the Florida Act. However, the Florida Act has no extraterritorial effect and is restricted to conduct either taking place entirely within Florida or impacting residents of the state. A violation of the Florida Act requires not only a showing that monopoly power in an intrastate market is possessed, but also the intentional acquisition and maintaining of such power in a manner that excludes competition. Actual monopolisation is not required to establish a violation of the statute, but rather an intentional attempt to monopolise. An actionable antitrust injury is one that decreases competition by reducing output or injuring consumers in their business and property. Like Section 542.18, violations of Section 542.19 may be remedied by private action, as well as by regulatory enforcement by the state.

Unlike Section 542.18, which requires a conspiracy or agreement between multiple parties, Section 542.19 contemplates conduct by a single actor in the form of acquiring or attempting to acquire an inordinately large share of a specific market while preventing competitors from entering or sharing the market. Conduct that may evidence an intentional violation of the Florida Act includes predatory conduct or pricing, boycotts, economic discrimination or other unconscionable behaviour that depresses or eliminates competition within a definable market in intrastate trade or commerce. Again, trade or commerce under the Act includes any economic activity involving commodities or services, with narrow exceptions for heavily regulated fields that are given immunity under the federal Act, such as commercial banking, broadcasting and certain utilities.

Patent law protects inventions in discoveries like machines, chemical compositions, materials, ornamental designs and certain methods (including software and business methods). The formalities are a bit more complicated and time-sensitive compared to trade marks and copyrights – patent applications must be filed in the name of the human inventors (AI inventors need not apply, yet) and ideally are submitted before the invention is publicly disclosed or sold. While filing a patent application gives the right to use the term “patent pending”, completing the examination process through to a patent grant is required for rights to be enforceable.

A complete patent application must include a written specification, a set of patent claims, the metes and bounds of the invention for which protection is sought, figures or drawings, and a set of required forms identifying the inventor, owner and other pertinent biographical information. Once a complete application is filed, it enters a queue to be examined by the United States Patent and Trademark Office (USPTO) for compliance with formalities and patentability vis-à-vis pre-existing references, called “prior art”. To be entitled to patent protection, the claims of the patent application must be both novel and non-obvious over the relevant prior art. If the Examiner believes the claims are not patentable, an office action is issued and the applicant is given an opportunity to amend the application and/or present a written legal argument to traverse the Examiner’s position. This back and forth is referred to as patent “prosecution”. The duration of the patent application process varies depending on the field of the invention, with a typical patent application taking 24 to 36 months from filing to issuance. If a patent applicant is unsuccessful in the examination process, they may avail themselves of various levels of appeals, including at the USPTO and in federal District Court.

In the United States, an issued utility patent has a life of 20 years, calculated from the earliest effective priority application date. Utility patents are subject to the payment of maintenance fees at 3.5, 7.5 and 11.5 years from the grant date. An issued design patent has a life of 14 years from the grant date and is not subject to the payment of maintenance fees.

Patent law is purely a creature of federal law and, therefore, patent infringement cases are brought exclusively in federal court in the U.S. Patent Act, 35 U.S. Code Section 281 et seq. Remedies for patent infringement include recovery of actual damages, typically calculated as a reasonable royalty. Attorneys’ fees may be recovered in “exceptional cases” under 35 U.S. Code Section 285. Other forms of patent-related adversarial proceedings include Inter Partes Review proceedings brought before the Patent Trial and Appeals Board at the USPTO, and Federal Trade Commission proceedings to stop the importation of infringing products.

Trade mark law protects a company’s brand rights against marketplace confusion caused by late-comer competitors that use a similar brand. Trade mark protection can apply to obvious things like company names, product names and logos but, if done correctly, can also protect colours and even sounds. An offshoot of trade mark law is trade dress protection, which protects the branding quality of the “look and feel” of a place or product (or its packaging). Trade mark rights arise from use of the mark, which means rights attached when the branded product or service is old. A mark needs to be unique and used consistently in order for strong trade mark rights to attach.

While trade mark protection stems from use of the mark and has its origins in state unfair competition law, federally registering a trade mark has important benefits with respect to nationwide notice and priority, and provides a presumption of validity and ownership of the mark. The owner of a federal trade mark registration is also entitled to bring suit for federal trade mark infringement under U.S. Lanham Act, 15 U.S.C. Section 1114. The federal trade mark registration process is initiated by filing a complete trade mark application with the USPTO, but many of the benefits do not manifest until the application vests to registration.

A complete application for a mark that is in use must include an identification of the mark o be registered, the owner, the goods/services to which the mark is attached, examples of actual use of the mark in commerce, and a date of first use in commerce; if the mark is not yet in use, the application should include the identification of the mark, the owner and the goods and/or services on which the mark is intended to be used. A fee must be paid for either type of application.

Once a complete application is filed, it enters a queue to be examined by the USPTO for compliance with formalities and potential conflict with other pending applications or registrations. Once approved, the trade mark application is then published for opposition for a period of 30 days. If no opposition is filed, and the mark was filed on a use basis, the application matures to a registration; if it was filed on an intent to use basis, a Notice of Allowance is issued, giving the applicant up to three years to commence use of the mark, and prove such use to the USPTO.

The registration process typically takes 12 to 15 months under the current USPTO case load for use-based applications. Most states in the United States have a similar registration process, which confers rights only within the state registered. State trade mark registrations can exist co-extensively with federal registration. While it is possible to apply to register a trade mark with Florida’s Secretary of State, the benefits of doing so are very limited, compared to the benefits of holding a federal registration.

Trade mark protection extends in perpetuity for so long as the trade mark owner continues to make actual use of the mark. That said, trade mark registrations must be renewed from time to time, typically in five- or ten-year increments upon the submission of an affidavit and evidence of continued use.

Trade mark enforcement has many permutations – from demand letter writing to full-blown litigation and self-help such as take-down notices sent to domain hosts, e-commerce platforms and the like. It is imperative that all trade mark owners take adequate steps to police their marks against actual and potential infringers, as failure to police a trade mark can result in a finding of weak or non-existent trade mark rights. Various “watching services” provide updates about applications to register potentially conflicting marks being filed with or published by the USPTO. The legal standard for trade mark infringement is whether the junior user’s trade mark use is likely to cause confusion among relevant consumers, or, for a famous mark, whether the junior user’s use dilutes the strength of the senior mark. However, third parties can make fair use of another’s trade mark descriptively, or for purposes of product comparison, in certain circumstances.

A trade mark owner that is successful in an enforcement lawsuit is entitled to a variety of remedies, including injunctive relief, disgorgement of the infringer’s profits, recovery of the trade mark owner’s lost profits and statutory damages (in the case of counterfeiting). In a federal trade mark infringement, attorneys’ fees may be awarded in “exceptional cases” under 15 U.S.C. Section 1117. A trade mark owner may also avail itself of other legal theories in an enforcement action, including unfair competition under state and federal law.

Industrial designs are protected in the United States as “Design Patents”, which provide legal protection for the ornamental design of an article of manufacture. Design patents are subject to the same registration and enforcement processes as outlined in 7.1 Patents with respect to utility patents, with the exception that the term of protection is 14 years from the grant date.

Copyright law extends legal protection for a limited period of time (either 95 years from the year of its first publication or 120 years from the year of its creation, whichever expires first for newly created works) to original works of authorship like digital content, artwork, marketing materials and software code. Works wholly created by artificial intelligence (AI) cannot currently be protected by copyright. Copyright does not protect ideas, but rather the expression of those ideas.

Copyright protection attaches the moment the work is completed, but registration is key to enforcement – a copyright owner cannot sue for infringement unless the original work of authorship is registered. Timely registration of copyright is key for entitlement to certain categories of damages in the case of an infringement, so early identification of protectable creative expression is a must. A copyright application takes approximately three to six months to mature from an application to a registration, although it can be expedited for a fee if necessary to commence litigation.

Copyright infringement cases are brought exclusively in federal court under 17 U.S.C. Sections 101 et seq. A copyright owner who is successful in infringement litigation is entitled to actual damages (lost profits) or, if the work has been timely registered, to statutory damages and attorneys’ fee.

Often overlooked, trade secrets can be an extremely valuable category of intangibles. Trade secret protection can extend to items like customer lists, vendor lists, manufacturing techniques, formulations and computer algorithms. Critically, in order to be protected as a trade secret, the alleged protected material must be subject to reasonable measures to maintain secrecy. The standard of care for secrecy can vary greatly depending on the type of business involved. For example, software businesses are likely to be held to a higher standard than a local restaurant (even if the latter’s bar-b-que sauce is one-of-a-kind).

Trade secrets are generally a creature of state law, and many states have adopted some form of the Uniform Trade Secrets Acts, a statutory framework for the protection and enforcement of trade secrets. However, the federal Defend Trade Secrets Act, 18 U.S.C. Section 1836 et seq. was enacted in 2016, providing for a federal statutory scheme for the protection and enforcement of trade secrets.

Florida does not have specific regulations on what makes a website or an app compliant with the ADA. In 2021, a case involving Winn Dixie, which was later voided as moot, held that websites do not have to be complaint with the guidelines set forth in the privately created WCAG 2.0 AA standards because a website is not a place of public accommodation, although it might have to if the website presents an “intangible barrier” to an individual’s access to goods, services, privileges or advantages of a physical store.

Whether a customer or member of the public utilises the ADA-compliant features of a website should be seen as falling into the Special Categories of Personal Data under the GDPR and similar state-specific privacy regulations, as it can include data concerning health. Therefore, whether it comes to a business via email, phone calls or a submission form, it should be treated with the same processing mechanisms as other special categories of personal data.

Many Florida businesses have customers that are visitors to the state for tourism or business; some come from other US states or territories, while others come from other countries, and employees may be residents of other states or citizens from other countries. Each of these situations creates obligations to comply with privacy laws and regulations from other jurisdictions. Furthermore, performing services in other jurisdictions or shipping products outside the state of Florida may also oblige entities that do business in Florida as well as elsewhere to comply with other jurisdictions’ privacy regulations. Such regulations include the European Commission's General Data Protection Regulation (GDPR) and, for for-profit entities, the California Consumer Privacy Rights Act, both of which are designed to protect the privacy rights of the citizens of said jurisdictions, wherever they are. Colorado, Connecticut, Indiana, Iowa, Montana, Tennessee, Utah and Virginia have recently passed legislation regulating the use of personally identifying information; more may pass such legislation in the coming months and years.

This swiftly changing assortment of international, federal and state privacy regulations may appear fragmented, but it is possible to seek compliance with the most stringent regulations, even if Florida law imposes fewer obligations.

As of 1 July 2024, the Florida Department of Legal Affairs will have enforcement powers regarding the Florida Digital Bill of Rights. No regulations regarding investigative or enforcement processes have been promulgated as of 1 June 2023.

Approval of Foreign Investments

The state of Florida has passed a new law, Senate Bill 264, restricting foreign investment in Florida real estate from China, Venezuela, Cuba, Russia, Iran, Korea and Syria, which came into effect on 1 July 2023. Foreign investors from those “Countries of Concern” are prohibited from buying agricultural land in the state or real estate within certain distances of military and certain critical infrastructure facilities, which include seaports, airports, chemical manufacturing facilities, electrical power plants, water treatment plants and gas plants.

A foreign principal can still acquire agricultural land on or after 1 July 2023, by devise or descent, through the enforcement of security interests or through the collection of debts, but must sell, transfer or otherwise divest itself of the agricultural land within two years of acquisition. The law lays out punishments for those who knowingly sell such real estate to people or entities from those countries.

The law also bans real estate purchases by Chinese people and businesses domiciled in China and those who are not US citizens or residents. Certain Chinese persons legally present in the state for purposes other than tourism may purchase a single primary residence.

Legal challenges were pending to the law at the time of writing, including a lawsuit filed by a group of Chinese citizens and a brokerage alleging Senate Bill 264 is unconstitutional and discriminatory.

Employment Law

Tort reform legislation signed into effect on 24 March 2023 will have a significant impact on employment law in Florida, and may result in an increased number of employment-related statutory lawsuits. The reforms to the state’s tort and negligence laws modified legal regimes involving physician referrals, statutes of limitations for negligence claims, and the introduction of evidence related to medical treatment costs, among other issues. The changes impose limits on injury and insurance litigation and attorney fees.

In May 2023, the state of Florida passed a new law, Senate Bill 256, that will place broad restrictions on public employee unions, including a requirement that some unions show that at least 60% of their members have paid dues or potentially face a decertification vote. Legal challenges are also pending at the time of writing.

Data Protection

On 6 June 2023, Governor Ron DeSantis signed Senate Bill 262, which will substantially expand Florida’s digital privacy laws and came into effect on 1 July 2023. Among other changes, the proposed law creates a unified scheme to allow Florida’s consumers to control the digital flow of their personal data, and will primarily affect major social media and internet companies.