CHAPTER 542

542.15

Short title.

History. — s. 1, ch. 80-28.

542.16 Purpose.

History. — s. 1, ch. 80-28.

542.17

Definitions.

(1) “Commodity” means any goods, merchandise, wares, produce, chose in action, land,

article of commerce, or other tangible or intangible property, real, personal, or mixed, for use, consumption, production, enjoyment, or resale.

(2) “Service” means any kind of activity performed in whole or in part for economic benefit.

(3) “Person” means any individual, corporation, firm, partnership, limited partnership, incorporated or unincorporated association, professional association, or other legal, commercial, or governmental entity, including the State of Florida, its departments, agencies, political subdivisions, and units of government.

(4) “Trade or commerce” means any economic activity of any type whatsoever involving any commodity or service whatsoever.

(5) “Document” means any stored or retained data or information in whatever form.

(6) “Attorney General” includes not only the Attorney General of Florida but also any designee of the Attorney General or any assistant attorney general or special assistant attorney general.

(7) “State attorney” includes not only the state attorneys of Florida but also any designee of a state attorney or any assistant state attorney or special assistant state attorney.

(8) “Local government” means a municipality, county, school district, or any other general-function or special-function governmental unit established by the laws of the state.

History. — s. 1, ch. 80-28; s. 1, ch. 85-261.

542.18 Restraint of trade or commerce.

History. — s. 1, ch. 80-28.

542.19 Monopolization; attempts, combinations, or conspiracies to monopolize.

History. — s. 1, ch. 80-28.

542.20 Exemptions.

History. — s. 1, ch. 80-28.

542.21 Penalties for violation.

(1) Any natural person who violates any of the provisions of s. 542.18 or s. 542.19 shall be subject to a civil penalty of not more than $100,000. Any other person who violates any of the provisions of s. 542.18 or s. 542.19 shall be subject to a civil penalty of not more than $1 million.

(2) Any person who knowingly violates any of the provisions of s. 542.18 or s. 542.19, or who knowingly aids in or advises such violation, is guilty of a felony, punishable by a fine not exceeding $1 million if a corporation, or, if any other person, $100,000 or imprisonment not exceeding 3 years, or by both said punishments.

(3) The commencement of trial seeking civil penalties in any action under this

section shall bar any subsequent criminal prosecution against the same person for violation of s. 542.18 or s. 542.19, based upon the same acts. The commencement of trial in a criminal prosecution for violation of s. 542.18 or s. 542.19 shall bar any subsequent action against the same person for recovery of civil penalties under this

section based upon the same acts, but shall not bar a subsequent suit for damages or injunctive relief under ss. 542.22 and 542.23.

(4) No action under this

section or s. 542.23 shall be commenced by the Attorney General against any person who, at the time, is a defendant in a suit filed by the United States for violation or alleged violation of the federal antitrust laws involving substantially the same subject matter and seeking substantially the same relief.

History. — s. 1, ch. 80-28.

542.22 Suits for damages.

(1) Any person who shall be injured in her or his business or property by reason of any violation of s. 542.18 or s. 542.19 may sue therefor in the circuit courts of this state and shall recover threefold the damages by her or him sustained, and the cost of suit, including a reasonable attorney’s fee. The court shall award a reasonable attorney’s fee to a defendant prevailing in any action under this

chapter for damages or equitable relief in which the court finds there was a complete absence of a justiciable issue of either law or fact raised by the plaintiff.

(2) The Attorney General, or a state attorney after receiving written permission from the Attorney General, may bring a civil action in the name of the state, as parens patriae on behalf of natural persons residing in this state, to recover on behalf of those persons threefold the actual damages sustained by reason of any violation of s. 542.18 or s. 542.19, and the cost of such suit, including a reasonable attorney’s fee. The court shall exclude from the amount of monetary relief awarded in such action any amount of monetary relief which:

(3) In any action under subsection (2):

History. — s. 1, ch. 80-28; s. 753, ch. 97-103.

542.23 Equitable remedies.

History. — s. 1, ch. 80-28.

542.235 Limitations of actions and penalties against local governments and their officials and employees.

(1) No criminal action shall be brought pursuant to s. 542.21(2) against any local government.

(2) No civil penalties, damages, interest on damages, costs, or attorneys’ fees shall be recovered under s. 542.21(1) or s. 542.22 from any local government.

(3) No injunctive or other equitable relief pursuant to s. 542.23 shall be granted against a local government or its officials or employees acting within the scope of their lawful authority, if the official conduct which forms the basis of the suit bears a reasonable relationship to the health, safety, or welfare of the citizens of the local government, unless the court finds that the actual or potential anticompetitive effects outweigh the public benefits of the challenged action.

(4) No criminal action shall be maintained pursuant to s. 542.21(2), and no civil penalties, damages, interest on damages, costs, or attorneys’ fees shall be recovered pursuant to s. 542.21(1) or s. 542.22, against any local government official or employee for official conduct within the scope of her or his lawful authority, unless the official or employee has violated the provisions of this

chapter for the purpose of deriving personal financial or professional gain or for the professional or financial gain of her or his immediate family or of any principal by whom the official is retained.

(5) Subsections (2) and (4) shall not apply to cases commenced before June 19, 1985, unless the defendant establishes, and the court determines, in light of all the circumstances, including the stage of litigation and the availability of alternative relief, that it would be inequitable not to apply these subsections to a pending case. In consideration of this subsection, the existence of a jury verdict or district court judgment or any stage of litigation subsequent thereto shall be deemed to be prima facie evidence that subsections (2) and (4) shall not apply.

History. — ss. 2, 3, ch. 85-261; s. 754, ch. 97-103.

542.24 Consent decrees and settlement agreements.

History. — s. 1, ch. 80-28.

542.25 Judgment in favor of state as prima facie evidence.

History. — s. 1, ch. 80-28; s. 1, ch. 84-146.

542.26 Limitation of actions.

(1) Any action brought under s. 542.21 or s. 542.22 must be commenced within 4 years after the cause of action accrues.

(2) Whenever any civil or criminal proceeding is instituted by the Attorney General or a state attorney to prevent, restrain, or punish any violation of this chapter, the running of the statute of limitations, with respect to every private right of action arising under this

chapter and based in whole or in part on any matter complained of in said proceeding, shall be suspended during the pendency thereof and for 1 year thereafter. Whenever the running of the statute of limitations in respect of a cause of action arising under s. 542.22(1) is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within the period of limitation.

History. — s. 1, ch. 80-28; s. 17, ch. 94-316.

542.27 Enforcement authority.

(1) The Attorney General, or a state attorney with written permission from the Attorney General, acting jointly or independently, may commence and try all criminal prosecutions under this chapter. Criminal prosecutions under this

chapter shall be commenced by indictment. With respect to commencement and trial of such prosecutions, the Attorney General or a state attorney shall have all the powers and duties vested by law with respect to criminal prosecutions generally. Incident to any investigation commenced under this chapter, the Attorney General may participate in and appear before a grand jury in assistance of any state attorney, irrespective of the provisions of

chapter 905.

(2) The Attorney General is authorized to institute or intervene in civil proceedings seeking the full range of relief afforded by this

chapter or by federal laws pertaining to antitrust or restraints of trade on behalf of the state, its departments, agencies, and units of government. In addition, the Attorney General, as chief state legal officer, may institute any action authorized under this chapter, federal laws pertaining to antitrust or restraints of trade, or similar laws of other states on behalf of natural persons in the state.

(3) Whenever the Attorney General, by her or his own inquiry or as a result of a complaint, suspects that a violation of this

chapter or federal laws pertaining to restraints of trade is imminent, occurring, or has occurred, the Attorney General may investigate such suspected violation.

History. — s. 1, ch. 80-28; s. 755, ch. 97-103.

542.28 Civil investigative demand.

(1) Whenever the Attorney General, or a state attorney with appropriate jurisdiction and with the written consent of the Attorney General, has reason to believe that any person may be in possession, custody, or control of any documentary material, or may have any information, which documentary material or information is relevant to a civil antitrust investigation authorized by s. 542.27(3), the Attorney General or such state attorney may, prior to the institution of a civil or criminal proceeding thereon, issue in writing and cause to be served upon such person a civil investigative demand requiring such person to:

(2) The demand shall:

(3) No such demand shall require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under:

(4) Nothing in this section, however, shall limit the power of the Attorney General or a state attorney to require the appearance of witnesses or production of documents or other tangible evidence located outside the state.

(5) Within 30 days after the service of an investigative demand upon any person or at any time before the return date specified therein, whichever period is longer, the person served may file in the circuit court in and for the county in which the person resides or transacts business, and serve upon the Attorney General or state attorney, a petition for an order of the court modifying or setting aside the demand. The time allowed for compliance in whole or in part with the demand as deemed proper and ordered by the court shall not run while the petition is pending before the court.

The petition shall specify each ground upon which the petitioner relies in seeking relief and may be based upon the failure of the demand to comply with the provisions of this

chapter or upon any constitutional or other legal right or privilege of such person.

(6) In case of the failure of any person to comply in whole or in part with a written investigative demand and when such person has not filed a petition under subsection (5), any circuit court of this state, upon application of the Attorney General or state attorney, may issue an order requiring compliance. The failure to obey the order of the court shall be punishable as a contempt of court.

(7) The examination of all witnesses under this

section shall be conducted by the Attorney General, or a state attorney with appropriate jurisdiction, before an officer authorized to administer oaths in this state. The testimony shall be taken stenographically or by a sound-recording device. Any person compelled to appear under a demand for oral testimony pursuant to this

section may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, either upon the request of such person or upon counsel’s own initiative, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for any such objection. If such person refuses to answer any question, the person conducting the examination may petition the circuit court as provided by subsection (11).

(8) When the testimony is fully transcribed, the person conducting the deposition shall afford the witness, and counsel if any, a reasonable opportunity to examine the transcript, and the transcript shall be read to or by the witness, unless such examination and reading is waived by the witness. Any changes in form or substance which the witness desires to make shall be entered and identified upon the transcript by the officer, the Attorney General, or a state attorney, with a statement of the reasons given by the witness for making such changes.

The transcript shall then be signed by the witness unless the witness waives the signing in writing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within 30 days of his or her being afforded a reasonable opportunity to examine it, the person conducting the examination shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or refusal to sign, together with the reason, if any, given therefor.

Any person required to testify or to submit documentary evidence is entitled, on payment of reasonable costs, to procure a copy of any document produced by such person and of his or her own testimony as stenographically reported or, in the case of a deposition, as reduced to writing by or under the direction of the person taking the deposition.

(9) Notwithstanding s. 119.07(1), it is the duty of the Attorney General or a state attorney to maintain the secrecy of all evidence, testimony, documents, work product, or other results of such investigative demand. However, the Attorney General or state attorney may disclose such investigative evidence to:

(10) The Attorney General shall have the authority to stipulate to protective orders with respect to documents and information submitted in response to an investigative demand under this section.

(11) The Attorney General or a state attorney may request that any natural person who refuses to comply with any provisions of this

section on the ground that the testimony or documents may incriminate him or her be ordered by the circuit court to provide the testimony or the documents. Except in a prosecution for perjury, a natural person who complies with a court order to provide testimony or documents after asserting a privilege against self-incrimination to which he or she is entitled by law may not be subject to a criminal proceeding or to the civil penalty of s. 542.21(1), with respect to the transaction to which he or she is required to testify or produce documents.

Any natural person who fails to comply with such a court order to testify or produce documents may be adjudged in contempt and imprisoned until the time the person purges himself or herself of the contempt.

(12) While in the possession of the custodian, documentary material, answers to interrogatories, and transcripts of oral testimony shall be available, under such reasonable terms and conditions as the Attorney General or a state attorney shall prescribe, for examination by the person who produced such materials or answers, or that person’s duly authorized representative.

(13) Nothing contained in this

section shall impair the authority of the Attorney General or state attorney to:

(14)(

a) No person, knowing or having reason to believe that a demand pursuant to this

section is pending, shall:

(15) When copies of documentary material made available pursuant to an investigative demand are no longer required for use in a pending proceeding or, absent any pending proceeding, are no longer required in connection with the investigation for which they were demanded, or at the end of 24 months following the date when the material was made available, whichever is sooner, all copies of the material shall be returned, unless a request to extend the period beyond 24 months has been filed in the court in which a request for an order compelling compliance pursuant to subsection (6) could be filed.

This subsection does not require the return of any copies of the documentary material that have passed into the control of any court or grand jury.

History. — s. 1, ch. 80-28; s. 2, ch. 84-146; s. 1, ch. 92-24; s. 342, ch. 96-406; s. 1173, ch. 97-103.

542.29 Duty of public officers.

History. — s. 1, ch. 80-28.

542.30 Jurisdiction and venue.

History. — s. 1, ch. 80-28.

542.31 Action not barred as affecting or involving interstate or foreign commerce.

History. — s. 1, ch. 80-28.

542.32 Rule of construction and coverage.

History. — s. 1, ch. 80-28.

542.33 Contracts in restraint of trade valid.

(1) Notwithstanding other provisions of this

chapter to the contrary, each contract by which any person is restrained from exercising a lawful profession, trade, or business of any kind, as provided by subsections (2) and (3) hereof, is to that extent valid, and all other contracts in restraint of trade are void.

(2)(

a) One who sells the goodwill of a business, or any shareholder of a corporation selling or otherwise disposing of all of her or his shares in said corporation, may agree with the buyer, and one who is employed as an agent, independent contractor, or employee may agree with her or his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the goodwill from her or him, and so long as such employer, continues to carry on a like business therein.

Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction. However, the court shall not enter an injunction contrary to the public health, safety, or welfare or in any case where the injunction enforces an unreasonable covenant not to compete or where there is no showing of irreparable injury. However, use of specific trade secrets, customer lists, or direct solicitation of existing customers shall be presumed to be an irreparable injury and may be specifically enjoined.

In the event the seller of the goodwill of a business, or a shareholder selling or otherwise disposing of all her or his shares in a corporation breaches an agreement to refrain from carrying on or engaging in a similar business, irreparable injury shall be presumed.

(3) Partners may, upon or in anticipation of a dissolution of the partnership, agree that all or some of them will not carry on a similar business within a reasonably limited time and area.

(4) This

section does not apply to any litigation which may be pending, or to any cause of action which may have accrued, prior to May 27, 1953.

History. — ss. 1, 2, 3, 4, ch. 28048, 1953; s. 1, ch. 79-43; s. 2, ch. 80-28; s. 1, ch. 87-40; s. 1, ch. 88-400; s. 1, ch. 90-216; s. 2, ch. 96-257; s. 756, ch. 97-103.

542.331 Applicability of s. 542.33.

History. — s. 2, ch. 96-257.

542.335 Valid restraints of trade or commerce.

(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:

(2) Nothing in this

section shall be construed or interpreted to legalize or make enforceable any restraint of trade or commerce otherwise illegal or unenforceable under the laws of the United States or of this state.

(3) This act shall apply prospectively, and it shall not apply in actions determining the enforceability of restrictive covenants entered into before July 1, 1996.

History. — ss. 1, 3, ch. 96-257.

542.336 Invalid restrictive covenants.

History. — s. 10, ch. 2019-138.

542.34 Discriminatory trade practices.

(1) It is an unlawful trust and an unlawful restraint of trade for any person who is chartered by, or authorized to do business in, this state to:

(2) This

section shall not apply to foreign boycotts or embargoes imposed by the United States against other nations and shall not restrict or discourage any person or entity chartered by, or authorized to do business in, this state from supporting, enforcing, furthering, or complying with a boycott or embargo against a foreign nation imposed by the government of the United States.

(3) The prohibition against discrimination on the basis of a person’s business associations shall not include the requiring of association with particular employment or a particular group as a prerequisite to obtaining group rates or discounts on insurance, recreational activities, or other similar benefits.

History. — s. 1, ch. 77-9; s. 222, ch. 79-400; s. 2, ch. 80-28; s. 5, ch. 93-218.

542.35 Remedies cumulative.

History. — s. 1, ch. 80-28.

542.36 Continuing violations.

History. — s. 1, ch. 80-28.