K3 Enterprises, Inc. v. Sasowski

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-24441-CIV-CANNON/Otazo-Reyes

K3 ENTERPRISES, INC.,

Plaintiff,

v.

LUBA SASOWSKI, individually,

SASOWSKI WAX HAIR REMOVAL BAR, LTD.,

a Vancouver, BC company,

WAX HAIR REMOVAL BAR, LLC,

a Nevada domestic limited liability company, and

NO. 5 DISTRIBUTING, INC.,

a Nevada domestic corporation,

Defendants.

/

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court upon Defendants’ Motion for Summary Judgment

(the “Motion”) [ECF No. 128], filed on April 18, 2022. The Court has reviewed the Motion,

Plaintiff’s Response in Opposition [ECF No. 139], Defendants’ Reply [ECF No. 151], the parties’

statements of facts [ECF Nos. 129–30, 148, 152],1 and the full record. Following review, the

Motion is GRANTED IN PART AND DENIED IN PART. Plaintiff has established genuine

issues of material fact for all six claims brought by the Second Amended Complaint [ECF No. 99].

1 Plaintiff originally failed to file with its Response a separate statement of material facts

[see ECF No. 39]. Pursuant to the Court’s Order Requiring Plaintiff’s Statement of Material Facts

[ECF No. 145], Plaintiff since has filed a separate opponent’s statement of material facts

[ECF No. 129]. That statement of material facts, however, improperly contains some additional

facts, cross references, and legal conclusions [see ECF No. 129]. Rather than attempt to Reply to

Plaintiff’s statement of material facts, Defendants opted to simply submit a filing in which they

assert that any such attempt would be impossible [ECF No. 152].

FACTUAL BACKGROUND2

Plaintiff K3 Enterprises, Inc. (“K3”) is a Florida company that sells skincare products under

the brand name of South Beach Skin Solutions [ECF No. 130 ¶ 1]. K3 was founded in 2005 by

William Kercher [ECF No. 148-9 ¶ 7]. In 2010, Defendant Luba Sasowski, a citizen of Canada,

contacted Kercher about becoming a reseller of South Beach Skin Solutions products

[ECF No. 37-1 p. 27:10–13].

On November 5, 2010, K3 executed the 2010 Distributor Agreement with Defendant

Sasowski Wax Hair Removal Bar, Ltd. (the “Canada Wax Bar”) [ECF No. 130-1], a company

owned by Sasowski [ECF No. 129 ¶ 41; ECF No. 1 p. 4]. The 2010 Distributor Agreement granted

the Canada Wax Bar exclusive rights to purchase, inventory, promote, and resell K3’s products in

British Columbia, Canada [ECF No. 130-1 ¶¶ 1–3]. It also contained a choice-of-law provision in

favor of Florida law [ECF No. 130-1 ¶ 24]; a confidentiality clause restricting the Canada Wax

Bar’s use of K3’s confidential information and trade secrets during the term of the agreement and

for an additional five years thereafter [ECF No.130-1 ¶ 19]; a trademark clause restricting the

Canada Wax Bar from using the name South Beach Skin Solutions or any other trademark or trade

name owned by K3 [ECF No. 130-1 ¶ 14]; a non-compete clause barring the promotion or sale of

competing goods within the identified territory for a period of two years [ECF No. 130-1 ¶ 4]; and

a term provision providing that the Agreement shall be in effect from October 15, 2010, until

October 31, 2011, and then remain in effect after October 31, 2011, until terminated by either party

[ECF No. 130-1 ¶ 16].

2 The following facts are taken from the parties’ Joint Statement of Undisputed Facts

[ECF No. 130] and from undisputed filings and evidence in the record.

K3 alleges that, in August 2011, it entered into an oral agreement with the Canada Wax

Bar, Sasowski, and Defendant Wax Hair Removal Bar, LLC (the “Nevada Wax Bar”)

[ECF No. 130 ¶ 5]. According to K3, the 2011 Oral Agreement (1) expanded the exclusive

distribution territory established by the 2010 Distributor Agreement to include Nevada and

(2) extended the same distribution rights recognized in the 2010 Distributor Agreement to the

Nevada Wax Bar and to Sasowski individually [ECF No. 130 ¶ 5; ECF No. 99 ¶ 45].

K3 similarly alleges that, on June 15, 2012, it entered into the 2012 Distribution Agreement

with the Canada Wax Bar to expand the exclusive distribution territory to include all of Canada

[ECF No. 130 ¶ 6; ECF No. 130-3]. K3 has not produced a signed copy of that 2012 Distribution

Agreement [see ECF No. 130-3 (unsigned)]. Defendants aver that the parties did not enter into

any written agreement expanding the exclusive distribution territory to include all of Canada

[ECF No. 129 ¶ 33].

K3 further alleges that, pursuant to subsequent oral agreements, the exclusive distribution

territory ultimately was expanded to include the entire world [ECF No. 99 ¶ 45].

In December 2019, Sasowski terminated the 2010 Distribution Agreement pursuant to the

30-day notice provision [ECF No. 130 ¶ 4]. That termination had the effect of ending all of the

Defendants’ business relationship with K3. Sasowski subsequently founded another company,

Defendant No. 5 Distributing, Inc. (“No. 5 Inc.”), a Nevada corporation, with Michael “Jake”

Kearsley [ECF No. 62 ¶ 6].

Based on Defendants’ business activities after December 2019, K3 avers that Sasowski and

her entities violated the parties’ agreements and competition laws by (1) developing competing

products (the Bryght product line) using K3’s trade secrets and while still associated with K3,

(2) advertising and selling those products after terminating the business relationship with K3, and

(3) using a “promotional/training video” containing references to South Beach Skin Solutions after

terminating the business relationship with K3 [ECF No. 99 ¶¶ 9(a)–(b), 28(l), 61–68]. Sasowski

worked with Pure Source, a Miami-based company, to develop and manufacture the Bryght

product line [ECF No. 37-1 pp. 109:15–110:4; 112:23–113:20].

PROCEDURAL HISTORY

On July 2, 2020, K3 filed suit against Sasowski and her associated entities in the Eleventh

Judicial Circuit in and for Miami County, Florida [ECF No. 1-1 pp. 2–19]. In October 2020,

Defendants removed the case to federal court on the basis of diversity of citizenship pursuant to

28 U.S.C. § 1332 [ECF No. 1]. Shortly thereafter, the case was reassigned to the undersigned

[ECF No. 16].

K3 filed the operative complaint—the Second Amended Complaint (the “SAC”)—on

December 20, 2021 [ECF No. 99]. The SAC brings the following claims:

• Count I – Breach of Contract (the 2010 Distribution Agreement’s Non-Compete Clause)

o brought against the Canada Wax Bar;

• Count II – Breach of Contract (the 2010 Distribution Agreement’s Confidentiality Clause)

o brought against the Canada Wax Bar;

• Count III – Breach of Contract (the 2010 Distribution Agreement’s Trademark Clause)

o brought against the Canada Wax Bar;

• Count IV – Breach of Contract (the Oral Agreement)

o brought against the Canada Wax Bar, Sasowski, and the Nevada Wax Bar;

• Count V – Breach of Contract (the 2012 Distribution Agreement)

o brought against the Canada Wax Bar; and

• Count VI – Misappropriation of Trade Secrets in Violation of the Florida Uniform Trade

Secrets Act (“FUTSA”)

o brought against the Canada Wax Bar, Sasowski, the Nevada Wax Bar, and

No. 5 Inc.

Defendants moved to dismiss the SAC for failure to state a claim pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure [ECF No. 107]. The Court denied that motion, finding all

six Counts to be adequately pleaded [ECF No. 124].

Defendants now move for summary judgment on all of K3’s claims [ECF No. 128]. The

Motion is ripe for adjudication [see ECF No. 131 (Response); ECF No. 151 (Reply); ECF No. 167

(Defendants’ Notice of Supplemental Authority); ECF No. 171 (K3’s Response to the Notice of

Supplemental Authority)].

LEGAL STANDARD

Summary judgment is appropriate where there is “no genuine issue as to any material fact

[such] that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); Fed R. Civ. P. 56(a). An issue of fact is “material” if it might affect the

outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). It is “genuine” if the evidence could lead a reasonable jury to find for the non-moving

party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

“When considering a motion for summary judgment, including one asserting qualified

immunity, ‘courts must construe the facts and draw all inferences in the light most favorable to the

nonmoving party and when conflicts arise between the facts evidenced by the parties, [they must]

credit the nonmoving party’s version.’” Feliciano v. City of Mia. Beach, 707 F.3d 1244, 1252

(11th Cir. 2013) (alteration in original) (quoting Davis v. Williams, 451 F.3d 759, 763 (11th Cir.

2006)).

“For factual issues to be considered genuine, they must have a real basis in the record.”

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (internal quotation marks omitted).

The nonmoving party must show more than the existence of a “metaphysical doubt” regarding the

material facts. Matsushita, 475 U.S. at 586. Speculation, conjecture, or conclusory statements

from a party cannot create a genuine issue of material fact. See Glasscox v. City of Argo, 903 F.3d

1207, 1213 (11th Cir. 2018); Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).

The nonmoving party either must point to evidence in the record or present additional evidence

sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.

See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); Owen v. Wille, 117 F.3d

1235, 1236 (11th Cir. 1997). But “[a] mere scintilla of evidence in support of the nonmoving party

will not suffice to overcome a motion for summary judgment.” Young v. City of Palm Bay, 358

F.3d 859, 860 (11th Cir. 2004).

DISCUSSION

As mentioned, Defendants’ Motion seeks summary judgment in their favor on all of the

claims in the SAC [ECF No. 61].3 Each claim is discussed below. In light of the significant

overlap between K3’s claims, this Order uses internal cross-referencing to minimize repetition.

I. Breach of the 2010 Distribution Agreement

Counts I through III are claims against the Canada Wax Bar for breach of the 2010

Distribution Agreement [ECF No. 99 ¶¶ 29–44]. K3 contends that the Canada Wax Bar breached

3 In considering Defendants’ Motion for Summary Judgment [ECF No. 128], the Court views the

evidence and all factual inferences arising from it in the light most favorable to K3.

the 2010 Distribution Agreement in three ways: (1) by selling competing products in violation of

the non-compete clause [ECF No. 99 ¶¶ 29–34 (Count I)]; (2) by developing and marketing those

products using K3’s confidential and trade secret information in violation of the confidentiality

clause [ECF No. 99 ¶¶ 35–39 (Count II)]; and (3) by using a promotional/training video that

depicted K3’s trademark, without K3’s permission, after terminating the parties’ relationship in

violation of the trademark clause [ECF No. 99 ¶¶ 40–44 (Count III)]. K3 further alleges that each

of these breaches has caused damages in the form of lost sales, reputational harm, lost business

opportunities, and increased expenses to regain diverted customers [ECF No. 99 ¶¶ 34, 39, 44].

“The elements of a breach of contract action are: (1) a valid contract; (2) a material breach;

and (3) damages.” Abbott Lab’ys, Inc. v. Gen. Elec. Cap., 765 So. 2d 737, 740 (Fla. Dist. Ct. App.

2000).

Defendants argue that the Canada Wax Bar is entitled to summary judgment on all three of

these claims for the following reasons: (1) the non-compete and confidentiality clauses are

unenforceable because they lack a legitimate business interest; (2) the confidentiality clause is

unenforceable because it has an unreasonable duration; (3) none of the breach of contract claims

is supported by evidence of breach; and (4) none of the breach of contract claims is supported by

evidence of damages [ECF No. 128 pp. 4–10]. The Court addresses these four arguments in turn.

A. Legitimate Business Interest

Under Florida law, “[a]ny restrictive covenant not supported by a legitimate business

interest is unlawful and is void and unenforceable.” Fla. Stat. § 542.335(1)(b). “The term

‘legitimate business interest’ includes, but is not limited to:” (1) trade secrets; (2) “[v]aluable

confidential business or professional information that doesn’t otherwise qualify as trade secrets”;

(3) “[s]ubstantial relationships with specific prospective or existing customers”; (4) “[customer]

goodwill”; and (5) “[e]xtraordinary or specialized training.” Fla. Stat. § 542.335(1)(b). A person

seeking enforcement of a restrictive covenant bears the burden to prove that the restrictive

covenant at issue is reasonably necessary to protect at least one or more legitimate business

interests. Fla. Stat. § 542.335(b)–(c). “If a person seeking enforcement of a restrictive covenant

establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement

has the burden of establishing that the contractually specified restraint is overbroad, overlong, or

otherwise not reasonably necessary to protect the established legitimate business interest or

interests.” Fla. Stat. § 542.335(c).

In this case, Defendants argue that the restrictive covenants contained in the 2010

Distribution Agreement—namely, the confidentiality clause and the non-compete clause—are

invalid because K3 has not established any legitimate business interest [ECF No. 128 pp. 4–5, 7].

According to Defendants, the only business interest put forward by K3 is an interest in customer

relationships, and K3 has failed to establish that interest with sufficient specificity

[ECF No. 128 pp. 4–5].

In response, K3 points out that the SAC identifies numerous legitimate business interests

beyond customer relationships, including interests in confidential information related to pricing,

product design, vendor services, and marketing strategies [ECF No. 148-9 ¶ 27(d); see

ECF No. 99]. With respect to customer relationships, K3 avers that it delivered to Defendants, as

part of discovery, a confidential list containing the names of 387 customers with whom Defendants

transacted [ECF No. 139 p. 6; ECF No. 148-9 ¶ 27(d)(viii)]. K3 also provides a sworn affidavit

of Kercher, who substantiates the claim that the restrictive covenants at issue were meant to protect

K3’s interest in prospective customers [see ECF No. 139 ¶¶ 22–26 (comparing net sales before

and after Defendants allegedly breached the parties’ contracts)]. Moreover, emails between

Kercher and Sasowski indicate that the Canada Wax Bar was involved in recruiting new resellers

and customers for K3 in Canada [see, e.g., ECF No. 148-5 pp. 228, 251]. Therefore, even though

Kercher’s affidavit is somewhat conclusory and K3 has not filed on the record the described list

of diverted customers, K3 has sufficiently established legitimate business interests for the

contractual provisions at issue. See Alonso-Llamazares v. Int’l Dermatology Rsch., Inc., 339 So.

3d 385, 396 (Fla. Dist. Ct. App. 2022) (finding a legitimate business interest in existing and

prospective customers even though they were not specifically identified); Milner Voice & Data,

Inc. v. Tassy, 377 F. Supp. 2d 1209, 1218 (S.D. Fla. 2005) (finding a legitimate business interest

where the defendants were responsible for the plaintiff’s client relationships and had access to

confidential information regarding those clients).

B. Unreasonable Duration

As to whether the restrictive covenants are reasonably necessary for the identified

legitimate business interests, Defendants do not challenge the reasonableness of the 2010

Distribution Agreement’s two-year, post-term non-compete clause. See Balasco v. Gulf Auto

Holding, Inc., 707 So. 2d 858, 860 (Fla. Dist. Ct. App. 1998) (concluding that a two-year restrictive

covenant is acceptable); PartyLite Gifts, Inc. v. MacMillan, 895 F. Supp. 2d 1213, 1226 (M.D. Fla.

2012) (collecting cases to show that geographic restrictions, including nationwide restrictions, are

reasonable where they track the employer’s area of business). Defendants do, however, challenge

the reasonableness of the five-year, post-term confidentiality clause [see ECF No. 128 pp. 4–8].

Defendants argue that the 2010 Distribution Agreement’s five-year confidentiality clause

is presumptively unreasonable under Section 542.335(1)(d)(1) of the Florida Statutes based on its

duration. Fla. Stat. § 542.335(1)(d)(1). That statutory provision instructs courts to apply a

presumption of unreasonableness to post-term restrictive covenants not predicated upon the

protection of trade secrets that are more than two years in duration. Id. As K3 points out, however,

the confidentiality clause of the 2010 Distribution Agreement is expressly predicated, at least in

part, upon the protection of trade secrets [see ECF No. 130-1 ¶ 19 (“In the event of termination of

this Agreement, there shall be no use or disclosure by [the Canada Wax Bar] of any confidential

information of [K3], and [the Canada Wax Bar] shall not manufacture or have manufactured any

products, devises, components, or assemblies utilizing [K3’s] patents, inventions, copyrights,

know-how or trade secrets.” (emphasis added))]. Section 542.335(1)(e) instructs courts to

presume as reasonable any “post[-]term restrictive covenant[] predicated upon the protection of

trade secrets” that is five years or less in duration. Fla. Stat. § 542.335(1)(e). Thus, to the extent

that the five-year confidentiality clause is predicated upon protecting trade secrets, the Court

presumes it is reasonable pursuant to Section 542.335(1)(e). To the extent the five-year

confidentiality clause is predicated upon protecting information that does not rise to the level of

trade secrets, however, the Court presumes it is unreasonable pursuant to Section 542.335(1)(d)(1).

K3 and the Canada Wax Bar do not articulate any arguments that overcome these presumptions.

Accordingly, the confidentiality clause is enforceable only insofar as it pertains to trade

secrets.

C. Evidence of Breach

Defendants also argue that summary judgment is warranted in favor of the Canada Wax

Bar on Counts I through III because K3 has not provided any evidence of breach by the Canada

Wax Bar in the relevant territory (British Columbia, Canada) [ECF No. 128 pp. 5–6, 8–10]. That

argument fails. K3 has submitted evidence that Defendants, acting as a group, developed certain

Bryght products using K3’s trade secret information and subsequently sold those products in

British Columbia [see ECF No. 148-9 ¶ 19 (Kercher stating that the Canada Wax Bar sells Bryght

products in British Columbia); ECF No. 148-3 pp. 30–34 (screenshots of advertisements by the

“bryghtenup” Instagram account with a location of “Vancouver, British Columbia”)]. K3 also has

presented evidence of trademark infringement in the form of a written letter dated March 4, 2020,

in which Sasowski, on behalf of the Canada Wax Bar, acknowledges the prior use by Defendants

of some references to K3 and its products and ensures that Defendants will cooperate in removing

any allegedly infringing content from media or communications moving forward

[ECF No. 148-7]. Based on this record evidence, K3 has created a genuine issue of fact as to

whether the Canada Wax Bar breached the non-compete, confidentiality, and trademark clauses of

the 2010 Distribution Agreement [see ECF No. 130-1 ¶¶ 4, 14, 19; see also supra Discussion I].

D. Evidence of Damages

As mentioned, Counts I through III seek damages for lost sales, reputational harm, lost

business opportunities, and increased expenses to regain diverted customers [ECF No. 99 ¶¶ 34,

39, 44]. Defendants argue that summary judgment is warranted on all three Counts because K3

has “failed to prove any damages” stemming from any breaches of the 2010 Distribution

Agreement, and instead has admitted that damages are “undetermined” at this time

[ECF No. 128 pp. 6–7, 9–10]. Defendants’ argument on this point is unconvincing. Kercher

acknowledges that the “exact dollar figure” of damages remains unknown, but he does so based

on the understanding that the damages “are continuing in nature” [ECF No. 148-9 ¶ 18]. His sworn

affidavit goes on state that “numerous customers” bought Bryght products from the Canada Wax

Bar after Sasowski terminated the relationship with K3 with the belief that they were continuing

to purchase K3 products [ECF No. 148-9 ¶ 19]. Kercher also asserts, more generally, that K3

experienced a noticeable drop in net sales after the Canada Wax Bar breached the 2010

Distribution Agreement and Defendants began to unlawfully compete with K3 [ECF No. 148-9

¶¶ 22–26]. Thus, the Kercher affidavit, though self-serving, is sufficient to create a genuine issue

of fact as to damages. United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (“[A] litigant’s

self-serving statements based on personal knowledge or observation can defeat summary

judgment.”).4

For these reasons, none of Defendants’ arguments warrants summary judgment on any of

the breach of contract claims tied to the 2010 Distribution Agreement.

II. Breach of the 2012 Distribution Agreement

Count V is a breach of contract claim against the Canada Wax Bar based on the 2012

Distribution Agreement [ECF No. 99 ¶¶ 53–60], which differs from the 2010 Distribution

Agreement only insofar as it expands the exclusive distribution territory to all of Canada and

contains updated term start and end dates [compare ECF No. 130-3, with ECF No. 130-1].

According to Defendants, Count V fails because the 2012 Distribution Agreement was never

signed by the Canada Wax Bar [ECF No. 128 pp. 15–18]. Defendants argue generally that the

unsigned 2012 Distribution Agreement is unenforceable under Florida’s statute of frauds and,

more narrowly, that any restrictive covenants contained therein are unenforceable under Section

4 Defendants also argue that K3’s theory of damages, as discussed in the Kercher affidavit, was

not sufficiently disclosed pursuant to Rule 26 and therefore warrants summary judgment in their

favor on all claims in the SAC [ECF No. 151 pp. 3–4; ECF No. 167]. To the extent there exists a

deficiency in Plaintiff’s damage-related Rule 26 disclosures, any such deficiency is not, on this

record, a reason to grant summary judgment. Kercher’s discussion of damages in the affidavit

establishes a genuine issue of material fact and is sufficiently related to the types of damages

identified in the SAC (lost sales, reputational harm, lost business opportunities, and increased

expenses to regain diverted customers) [ECF No. 99 ¶¶ 34, 39, 44; see also ECF No. 171]. Plaintiff

has offered limited, albeit generalized, evidence to preclude summary judgment on damages, for

the reasons stated above. And Plaintiff represents that Kercher was available for deposition on the

question of damages, but Defendants did not probe that topic or otherwise seek Court resolution

of any damage-related deficiency during discovery [ECF No. 159 pp. 4–6]. Nevertheless, the

Court is aware of Plaintiff’s rather bare showing of damages and will entertain any damage-related

arguments, as appropriate, via Defendants’ pending Motion in Limine [ECF No. 159 pp. 4–7]

and/or under Rule 50 at trial.

542.335(1)(a) of the Florida Statutes [ECF No. 128 pp. 10–13 (citing Fla. Stat. § 542.335(1)(a))].

The Court discusses these two related arguments in turn.

A. Statute of Frauds

Under Florida’s statute of frauds, “any agreement that is not to be performed within the

space of one year from its making must be reduced to writing in order to be enforceable.”

Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. Dist. Ct. App. 2000)); see Fla

Stat. § 725.01. As discussed in the Order Denying Motion to Dismiss the SAC, the issue in this

case is whether the unsigned 2012 Distribution Agreement was sufficiently “reduced to writing”

[ECF No. 124 p. 8]. To satisfy the statute of frauds, a plaintiff must produce “some note or

memorandum [of the agreement] . . . in writing and signed by the party to be charged therewith or

by some other person by her or him thereunto lawfully authorized.” Fla. Stat. § 725.01. Such

notes or memoranda, however, “may take almost any possible form,” Kolski ex rel. Kolski v.

Kolski, 731 So. 2d 169, 171 (Fla. Dist. Ct. App. 1999), as long as they “contain the essential terms

of the transaction,” First Guar. Corp. v. Palmer Bank & Tr. Co. of Fort Myers, 405 So. 2d 186,

188 (Fla. Dist. Ct. App. 1981). Moreover, multiple writings “may be aggregated to satisfy the

statute,” provided that at least one of the writings is signed and either “expressly or implicitly

refers to the unsigned document[(s)].” Palmer Bank, 405 So. 2d at 188. “An implied reference

may be established by either the fact that the documents relate to the same subject matter or by

physical annexation.” Id. Parol evidence also may be used, in certain circumstances, to clarify

such writings. Id.

In this case, K3 has produced an unsigned copy of the 2012 Distribution Agreement

[ECF No. 130-3] along with a June 14, 2012, email exchange between Sasowski and Kercher

[ECF No. 148-5 pp. 117–22, 128–31]. The 2012 Distribution Agreement contains all of the

essential terms of this transaction but lacks a signature [ECF No. 130-3]. The June 14, 2012, email

exchange, on the other hand, features: (1) Sasowski assenting to an expansion of the exclusive

distribution territory to include all of Canada [ECF No. 148-5 p. 120 (“Yes I would be happy to

work the entire Canadian Market for you . . . .”)]; (2) Kercher expressly referencing the terms of

the unsigned 2012 Distribution Agreement [ECF No. 148-5 p. 117 (“For the sake of formality, I

have updated the original agreement with new dates and changed BC to all of Canada for the

territory.”)]; and (3) Sasowski’s email signature as president of the Canada Wax Bar [see

ECF No. 148-5 pp. 120, 131; see also Fla. Stat. § 668.004 (“[A]n electronic signature may be used

to sign a writing and shall have the same force and effect as a written signature.”); U.S.

Distributors, Inc. v. Block, No. 09-21635-CIV, 2009 WL 3295099, at *5 (S.D. Fla. Oct. 13, 2009)

(recognizing that emails containing the electronic signatures of the parties or their agents satisfied

Florida’s statute of frauds); Rouse v. Nationstar Mortg., LLC, No. 8:14-CV-497-T-30AEP, 2014

WL 1365420, at *2 (M.D. Fla. Apr. 7, 2014) (same)]. Critically, because the signed June 14, 2012,

emails relate to the same subject as the 2012 Distribution Agreement and expressly refer thereto,

they may be considered alongside the unsigned 2012 Distribution Agreement for purposes of the

statute of frauds.

On this record, Defendants have not shown that Count V is barred by the statute of frauds.

Rather, the statute of frauds may be satisfied based on how the factfinder resolves the numerous

genuine issues of material fact surrounding the 2012 Distribution Agreement (e.g., whether an

enforceable contract was created and, if so, what terms were included therein). See Pereida v.

Wilkinson, 141 S. Ct. 754, 765 (2021) (“It is ‘generally a question of fact for the jury whether or

not a contract . . . actually exists.” (quoting 11 R. Lord, Williston on Contracts § 30:3, pp. 37–39

(4th ed. 2012))); Lockheed Martin Corp. v. Galaxis USA, Ltd., 222 F. Supp. 2d 1315, 1323 (M.D.

Fla. 2002), aff’d sub nom. Lockheed Martin Corp. v. Galaxis U.S.A. Ltd., 88 F. App’x 389

(11th Cir. 2003) (“[T]he existence of a contract is a question of fact to be determined by

consideration of all the facts and circumstances.”); Impossible Elec. Techniques, Inc. v. Wackenhut

Protective Sys., Inc., 669 F.2d 1026, 1033 n.8 (5th Cir. 1982) (citing cases to support the

proposition that “questions of material fact concerning the [Florida] Statute of Frauds are for the

trier of fact”).

B. Section 542.335(1)(a)

In a similar vein as the statute of frauds, Section 542.335(1)(a) states that courts “shall not

enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom

enforcement is sought.” Fla. Stat. § 542.335(1)(a). That language is substantially similar to the

language of the statute of frauds’ signed-writing requirement, which requires certain writings to

be “signed by the party to be charged therewith.” Fla Stat. § 725.01. Though the Florida case law

establishing a broad understanding of “signed writings” does so in the context of the statute of

frauds, Defendants have not presented the Court with any authority that suggests that the signed-

writing requirement of Section 542.335(1)(a) should be understood or applied any differently

[see ECF No. 151 pp. 7–8 (discussing the signed-writing requirements of the statute of frauds and

Section 542.335(1)(a) without differentiation)]. Moreover, the Canada Wax Bar agreed in a signed

writing to an expansion of the exclusive distribution territory to include all of Canada

[see ECF No. 148-5 p. 120] and did so with knowledge that the exclusive distribution territory was

incorporated into the parties’ pre-existing non-compete clause [see ECF No. 130-1 ¶ 4]. For these

reasons, Defendants have not shown that Count V is disallowed by Section 542.335(1)(a).

More fundamentally, as discussed above, see supra Discussion I(C)–II(A), K3 has

presented genuine issues of material fact as to whether K3 and the Canada Wax Bar entered into

an enforceable contract in 2012 that incorporated the non-compete, confidentiality, and trademark

clauses of the written Distribution Agreements [ECF Nos. 130-1, 130-3] and whether the Canada

Wax Bar breached those clauses.5 Accordingly, summary judgment is not warranted on Count V.

III. Breach of Oral Contract

Count IV is a breach of contract claim brought against the Canada Wax Bar, the Nevada

Wax Bar, and Sasowski individually based on the 2011 Oral Agreement [ECF No. 99 ¶¶ 45–52].

As discussed, K3 maintains that, in August 2011, the foregoing parties entered into an Oral

Agreement to add the Nevada Wax Bar and Sasowski to the distribution relationship under the

same terms as the Canada Wax Bar and to expand the exclusive distribution territory to include

Nevada (the “Nevada Expansion”) [ECF No. 99 ¶¶ 45–48]. K3 further maintains that, at some

later point, the parties modified the 2011 Oral Agreement to make the exclusive distribution

territory encompass the entire world (the “Global Expansion”) [see ECF No. 99 ¶ 45]. K3 contends

that Defendants breached the 2011 Oral Agreement by violating the incorporated non-compete,

confidentiality, and trademark clauses [ECF No. 99 ¶¶ 49–51]. Defendants level the same two

signed-writing challenges against Count IV that they level against Count V (i.e., the breach of

contract claim is barred in full by the statute of frauds and disallowed to the extent it seeks to

enforce any restrictive covenant by Section 542.335(1)(a)) [ECF No. 128 pp. 10–15].6 These

5 The Motion includes an argument that Count V is time-barred under the statute of limitations,

because there is “no evidence” that the parties agreed to automatic renewals [ECF No. 128 p. 17].

But because a reasonable jury could conclude that, through the June 14, 2012 emails, the Canada

Wax Bar agreed to expand the exclusive distribution territory to all of Canada but to be bound by

the same automatic renewal provision used in the 2010 Distribution Agreement [ECF No. 130-1

¶ 16; see also ECF No. 130-3 ¶ 16], this argument does not warrant summary judgment in favor

of the Canada Wax Bar [see also ECF No. 124 p. 6].

6 Defendants also repeat their statute of limitations argument in connection with Count IV [see

ECF No. 128 p. 13]. Because a reasonable jury could find, based on the parties’ writings and

relationship, that the 2011 Oral Agreement incorporated the automatic renewal provision first used

arguments fail with respect to the alleged August 2011 Nevada Expansion but succeed with respect

to the alleged subsequent Global Expansion. Thus, Count IV survives summary judgment in part.

A. The August 2011 Nevada Expansion

K3 has produced sufficient evidence to overcome Defendants’ arguments at this stage with

respect to the Nevada Expansion. As with the unsigned 2012 Distribution Agreement, the signed

writing produced by K3 in connection with the 2011 Oral Agreement takes the form of an email

exchange between Sasowski and Kercher. In that email exchange, dated August 4, 2011, Sasowski

asks Kercher to “consider having us distribute [K3’s] line in NV as well” [ECF No. 148-8 p. 21].

Kercher responds that he “would be thrilled to have you be our official rep and distributor for NV”

[ECF No. 148-8 p. 20]. In reply, Sasowski thanks Kercher for the opportunity and expresses

optimism about building the K3 brand in Nevada “faster than [in] Canada” [ECF No. 148-8 p. 20;

see also ECF No. 37-1 p. 62 (Sasowski confirming during a deposition that, at some point, she

became the exclusive distributor in Nevada)]. Because the August 4, 2011, emails relate to the

same subject matter as the Distribution Agreements, they may be considered alongside those

Agreements for signed-writing requirement purposes. Against this backdrop, Defendants have not

established that they are entitled to summary judgment with respect to the Nevada Expansion based

on Florida’s statute of frauds and Section 542.335(1)(a).

As discussed, the factfinder ultimately will need to resolve the genuine issues of material

fact pertaining to the existence of all of the alleged contracts in this case. See supra Discussion

II(A)–(B). For Count IV specifically, the factfinder will need to determine the extent of the

relationships among Defendants and the capacity in which Sasowski signed her August 4, 2011,

in the 2010 Distribution Agreement [ECF No. 130-1 ¶ 16], this argument is not dispositive on

summary judgment. See supra n.5.

emails (and therefore which, if any, Defendants among the Canada Wax Bar, the Nevada Wax,

and Sasowski “signed” the August 4, 2011, emails for purposes of establishing a contract). But,

for now, there is sufficient evidence of an enforceable contract (that satisfies the relevant signed-

writing requirements), a contractual breach, and damages related to the Nevada expansion to

withstand Defendants’ motion for summary judgment [see ECF No. 148-4 pp. 20–21 (the

August 4, 2011, emails discussing adding Nevada to the exclusive distribution territory);

ECF No. 148-2 pp. 12–13 (evidence indicating that Bryght products are sold in Nevada);

ECF No. 148-9 ¶ 19 (Kercher claiming, in a sworn affidavit, that numerous customers purchased

Bryght products from the Nevada Wax Bar with the belief that they were continuing to purchase

K3 products)].

B. The Post-2011 Global Expansion

Insofar as Count IV is based on an alleged modification of the 2011 Oral Agreement to

encompass the entire world, however, summary judgment in favor of Defendants is warranted. K3

has not produced any signed writing in which any Defendant agrees to expand the exclusive

distribution territory to include the entire world. Because the exclusive distribution territory is an

essential term of this transaction, K3 cannot satisfy the statute of frauds without such a writing.

Moreover, because the exclusive distribution territory is incorporated into the relevant restrictive

covenant (the non-compete clause) [ECF No. 130-1 ¶ 4], K3 likewise cannot satisfy Section

542.335(1)(a) without such a writing.

Accordingly, the evidence produced by K3 is sufficient to defeat summary judgment on

Count IV with respect to the alleged Nevada Expansion, but not with respect to the alleged Global

Expansion.

IV. FUTSA

Count VI is K3’s lone claim not based on any alleged breach of contract. Instead, Count

VI is brought under the FUTSA against all four Defendants [ECF No. 99 ¶¶ 61–80]. To prevail

on a claim under the FUTSA, a plaintiff must show that: (1) it possessed a “trade secret,” and

(2) the secret was “misappropriated.” Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d

1279, 1297 (11th Cir. 2018) (quoting Advantor Sys. Corp. v. DRS Tech. Servs., Inc., 678 F. App’x

839, 853 (11th Cir. 2017)). The FUTSA defines a “trade secret” as “information, including a

formula, pattern, compilation, program, device, method, technique, or process that: (a) [d]erives

independent economic value . . . 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) [i]s the subject of efforts that are reasonable under the circumstances to maintain

its secrecy.” Fla. Stat. § 688.002(4). “Misappropriation,” on the other hand, is defined as the

disclosure, use, or acquisition of a trade secret of another by someone who knows or has reason to

know that the trade secret was acquired by improper means. Fla. Stat. § 688.002(2). Lastly,

“improper means” is understood by the statute to include “theft, bribery, misrepresentation, breach

or inducement of a breach of a duty to maintain secrecy, [and] espionage.” Fla. Stat. § 688.002(1).

In this case, K3 asserts that each of the Defendants misappropriated trade secrets by using

K3’s “formulas, ideas, know how, customer lists[,] marketing materials” and “unique training

methods,” despite knowing that the information was acquired through the improper means of

breaching the confidentiality clause of the agreement(s) with K3 [ECF No. 99 ¶¶ 61–80;

ECF No. 139 pp. 6–7]. As discussed, K3 has presented evidence that Defendants used K3’s

processes to develop and market a virtually identical product [see ECF No. 148-9 ¶¶ 27(aa),

(ee)–(gg)] and also used K3’s customer lists to sell that product [see ECF No. 148-9 ¶ 19]. K3

also has presented evidence that the information used by Defendants derived independent

economic value from being kept secret and that reasonable efforts were taken to maintain that

secrecy [see, e.g., ECF No. 130-1 ¶ 19 (confidentiality clause of the 2010 Distribution

Agreement); ECF No. 130-3 ¶ 19 (confidentiality clause of the unsigned 2012 Distribution

Agreement); ECF No. 148-5 pp. 100–01 (an email from Kercher to Sasowski discussing how to

market the types of products at issue and containing a notice of confidentiality after the signature);

ECF No. 148-5 pp. 117–18 (an email from Kercher to Sasowski discussing pricing guidelines for

the types of products at issue and containing the same notice of confidentiality); ECF No. 148-5

pp. 119–20 (an email from Kercher to Sasowski discussing product details and containing the same

notice of confidentiality)]. Although K3’s evidence is limited, it amounts to more than “a mere

scintilla of evidence” and raises genuine issues of fact to be resolved by the factfinder. See Young

v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004); see also Digiport, Inc. v. Foram Dev.

BFC, LLC, 314 So. 3d 550, 553 (Fla. Dist. Ct. App. 2020) (finding there to be an issue of fact

precluding summary judgment as to whether the subject information constituted trade secrets);

Treco Int’l S.A. v. Kromka, 706 F. Supp. 2d 1283, 1287 (S.D. Fla. 2010) (finding there to be a fact

question as to whether reasonable steps were taken to preserve trade secrets where the plaintiffs

had the defendant sign a non-disclosure agreement and instructed defendant not to disclose the

information).

K3 has presented sufficient evidence to overcome Defendants’ motion for summary

judgment with respect to Count VI.

CASE NO. 20-24441-CIV-CANNON/Otazo-Reyes

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion for Summary Judgment [ECF No. 128] is GRANTED IN PART

AND DENIED IN PART.

2. The parties shall proceed to trial on all six Counts in Second Amended Complaint

[ECF No. 99] as narrowed by this Order.

a. Insofar as Count IV is based on an alleged agreement to expand the exclusive

distribution territory to cover the entire world, it is barred by Florida’s Statute

of Frauds and Section 542.335(1)(a).

b. Insofar as the confidentiality clauses underlying Counts II, IV, and V are

predicated upon the protection of information that does not constitute trade

secrets, they are unenforceable.

DONE AND ORDERED in Chambers at Fort Pierce, Florida this 7th day of August 2022.

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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