Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 1 of 22

UNITED STATES DISTRICT COURT

SO UTHERN DISTRICT O F FLO RIDA
CASE NO.16-23300-CIV-W ILLIAM S

BALEARIA CARIBBEAN LTD.,CORP.

a/k/a BALEA RIA CARIBBEAN LTD.,

Plaintiff,
VS.

HERNAN CALVO ,

Defendant.
/

O RDER

THIS MATTER is before the Courtfollow ing a bench trialon a breach offiduciary

duty and trade secrets act claims case. Having considered witness testim ony, the

relevantsubm issions and the applicable Iaw ,the Courtissues the follow ing findings of

factand conclusions ofIaw.l

G ENERAL BACKG RO UND

This is a breach offiduciary duty and trade secrets actcase. Balearia Caribbean

Ltd (''Balearia'')is a corporation thatoperates a ferry service between Fod Lauderdale,

Florida and Grand Baham a, Baham as. Balearia is part of the ''Balearia G roup'
' of

com panies,which also operates ferry services in the Mediterranean Sea and em ploys

about 1,800 people. The Balearia G roup's principal operating holding com pany,

Balearia Eurolineas Maritimas,S.A.(d1BEM''),is based inValencia,Spain.

Hernan Calvo ($$CaIvo'') began working in Europe for the Balearia Group in
September2007. Beforejoining Balearia,Calvo had over20 yearsofexperience in the

1To the extentthatany findings offactconstitute conclusions oflaw,they are adopted

as such;and to the extentthatany conclusions ofIaw constitute findings offact,they
are also adopted.
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ferry industry. The Balearia G roup transferred Calvo to South Florida in February 2013,

to serve as CEO forBalearia. In August2015,Calvo decided to Ieave Balearia. After

Ieaving Balearia, Calvo was em ployed first by Buquebus - an Argentinean ferry

company - and then by Forde ReedereiSeetouristik GmbH & Co (''FRS'')- a German

transpodation com pany - b0th Balearia com petitors. W hile em ployed by FRS,Calvo

was awarded a business dealfor FRS to service a ferry route between M iam iand

Bim ini,Baham as. Balearia contends thatCalvo breached its fiduciary duties to Balearia

by keeping this business opportunity secretfrom Balearia w hile he was stilltheirCEO

and thathe m isappropriated Balearia trade secrets to win the bid forFRS.

II. FINDINGS OF FACT

From 2007 until2013,Calvo worked as a consultantforthe Balearia Group in

Spain. He worked from home and was nota regularfull-tim e em ployee. Before that,

Cal
vo was the DirectorGeneralofBuquebus Spain,a com peting ferry service business,

w hich was acquired by the Balearia G roup in 2007. Since 2007 and untilthe tim e he

Ieftin 2015,Calvo reported directly to Adolfo Utor,Balearia G roup's President.

In 2013,the Balearia G roup transferred Calvo to Miam i,to serve as Balearia's

CEO . Calvo did nothave a w ritten em ploym entagreementw ith Balearia. Nonetheless,

as Balearia's C EO ,he was responsible foroverseeing the com pany's confidentialpolicy

foraIIits employees. Indeed,in June 2013,Josep VincentMascarell(Presidentofthe

Committee of the Code of Conduct) emailed Calvo 1'a summary and Powerpoint
presentation of the Code of Conduct and Business Ethics policy applicable to aII

employees within the Balearia Group.'' (DE 121-1 at 26-48). W ith respect to
confidentialinform ation,the sum m ary stated in part:
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 3 of 22

The work carried outby Balearia em ployees w ithin theirw orking day and
the inform ation they have access to belongs, in its entirety, to the
com pany. Therefore, the em ployees should not disclose professional
secrets,and m ay only use this inform ation forwork purposes related to
Balearia.

Once the working relationship has term inated the confidentiality of this
inform ation should be m aintained. Fudherm ore,when a person Ieaves
the com pany,they m ay not copy,forward,reproduce or reveal,without
express authorization,any inform ation orwork belonging to the com pany.

(ld.at48)
Nineteen m onths into his tenure as CEO ,in Novem ber2014,Calvo purchased a

personalIaptop com puterand had Balearia's DirectorofInform ation System s configure

the device to access Balearia's business inform ation. A com pany within the Balearia

Group,Nautas TechnologiesS.A.(''Nautas''),was responsible forimplementing a tiered

system governing Calvo's and otherem ployees'access to Balearia inform ation. Top-

tierexecutives Iike Calvo had password-protected access to t'Third LevelSecurity,''the

highestIevelofsecurity forcompany information. (DE 125-2 at23). Calvo was one of

six em ployees in the entire Balearia G roup to have access to Balearia's ''m ostsensi
tive

documents.'' (DE 125-2 at24-25). Calvo also had a company emailthrough which he
received sensitive financial docum ents of the com pany. The tem plate for the

spreadsheetthatCalvo used to create his econom ic forecastfor FRS was notm arked

asa trade secretorasconfidential.(DE 121-7 at53-61.

,DE 125-1 at64).
From the tim e he began his position as Balearia's CEO ,Calvo was inform ed that

Balearia was on the lookout for an oppodunity with Genting Group ('sGenting'') to
provide ferry service between M iam i,Florida and a casino in Bim ini,Baham as owned by

G enting. Balearia had serviced that route from 2011 to 2013. But when Genting

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opened its Bim iniResort,Genting decided to use theirown vessel,the Superfast,to

operate thatroute. However,Balearia knew thatthe Superfastwas too big forthe route

and thatultim ately,Genting would need a third pady to operate that Iine. Balearia was

the onl
y com pany providing ferry service in the Caribbean atthe tim e.

ln March 2015,Genting contacted Calvo. G enting's outgoing President forthe

Am ericas Dana Leibovitz and Genting's incom ing President Ed Farrell went out for

Iunch w ith Calvo and discussed potentialcooperation between Genting and Balearia.

The next m onth, Liebovitz and Farrellasked Calvo if they could schedule a time for

them to go to Fod Lauderdale to see the PinardeIRio,Balearia's vessel. That visit

occurred the lastweek ofApril.

O n May 4,2015,Calvo emailed Genting telling them that he w ould be visiting

Bim iniwith his fam ily and would Iike to m eetw i

th them to see the dock and discuss the

possible operation ofthe PinardeIRio. Genting m ade aIIthe arrangem ents forthattrip.

Laterthatm onth,Genting approved Balearia sending the PinardeIRio to Bim inifora

dock test,butCalvo latercancelled it. O n July 4,2015,Calvo told G enting thatBalearia

needed to postpone the discussions regarding w hetherthe PinardeIRio could be used

forthe Bim iniroute.

Then,a m onth lateron August14,2015,Calvo subm itted his resignation to Utor.

Calvo told Utorthat he was resigning his position as Balearia's CEO to m ove into the

energy industry and work fora com pany called Plastic Energy. Utorconvinced Calvo to

rem ain Balearia's CEO untilOctober30,2015 to train his replacem ent,Jose Vicente

Herrero Gomez ($'Herrero''). Although Calvo did notsign a non-competition or non-

disclosure agreem entw hen he resigned,Utortestified thatCalvo verbally assured him

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that he would not com pete with Balearia because he was going to a di
fferent industry

altogether.

O n August26,2015,while Calvo was w ith Utorand otherBalearia executi

ves in

Spain, he received an em ail from Dana Leibovitz from Genting, asking to resum e

discussions related to the Bim iniroute. Calvo did not tellUtor or Herrero about this

em ail. Instead,without notifying anyone at Balearia,Cal

vo scheduled a m eeting with

Genting for Septem ber 8,2015. ln the days Ieading up to the Septem ber 8,2015

m eeting, Calvo corresponded w i

th people from Buquebus,Argentina. In an em ailof

September 5, 2015, Calvo wrote to AnibalArgom edo,Technicaland Fleet Manager

from Buquebus'
.

Do notforgetto send m e the time Chader cost inform ation forthe Silvia
Ana to have it in m ind. Iabsolutely need it on M onday,since Ihave a
m eeting with the people ofBim iniin the early m orning ofTuesday.

(DE 121-6 at230).He also emailed Balearia's SeniorFinancialOfficerinstructing herto

provide him w ith m onthly repods of Balearia's profitand Ioss statem ents for2014 and

2015 YTD.(DE 121-1at101-104).

O n Septem ber 8,2015,afterthe m eeting w ith Genting,Calvo followed up with

Buquebus'
.

Today there was the m eeting with the data I had from the Silvia.The
meeting went very welland I have another m eeting on this m atter on
Thursday early in the m orning.Idefinitely need to have the Silvia Ana's
num bers tom orrow forsure.

(DE 121-6 at231). At the same time,while stillemployed by Balearia,Calvo was

helping Buquebus certi
fy theirvessel,the Silvia Ana,with the CoastGuard.

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O n Novem ber 7,2015 - one week after Cal

vo had officially stepped down as

Balearia's CEO - Cal

vo emailed Juan Carlos Lopez Mena (Presidentand Ownerof
Buquebus)stating:
Dear Juan Carlos:Tom orrow, Sunday I'm meeting w ith one of the
owners ofthe BiminiResortto submit again the projectto include the
Sil
via Ana (ora sim ilarvessel)in the Miam i-BiminiIine...
(DE 121-7 at1). Then,on November22,2015,Calvo sentGerardo Capo (one ofthe
ownersofthe BiminiResod)an emailwith a draftMOU between Buquebusand Genting
forBuquebus to take overthe Miam i-BiminiIine.(Id.at6). Calvo wenton to meetwith
Genting about Buquebus servicing the Bim iniroute and on Decem ber 18,2015,Calvo

em ailed G enting executives a ''finalproposal''for Buquebus to provide ferry service

between Miam iand Bimini. (DE 119-32). W hen asked aboutthis ''
finalproposal''at
trial,Calvo testified thati
tw as only a prelim inary proposal. However,Genting's w itness
-
M r.Karavias - confirm ed thatby Decem ber2015 the parties had agreed to the basic

terms oftheircontract. (DE 125-3 at119.

,DE 125-4 at23).
O n January 6,2016,Genting publicly announced thatitwould cease operations

ofthe Superfast. Shortly afterthat,Balearia learned ofthe announcementand,forthe

firsttim e,aboutthe oppodunity to obtain the Bim iniIine. Atthis point,Balearia moved

to begin talks and negotiations with Genting to secure the business dealfor Balearia.

Balearia presented severalproposals to Genting,butby the tim e Balearia's offers cam e

into play, Genting and Buquebus were m eaningfully advanced in the negotiation

process. Indeed, on M arch 16, 2016, Genting entered into a memorandum of

understanding with Caribbean Ferries Ltd.,a com pany created by Calvo forthe sole

purpose ofbeing the Buquebus subsidiary in the Caribbean.

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However, in April2016,Buquebus pulled out ofthe G enting ferry deal. Atthis

point,Calvo contacted FRS to inform them ofthe possibility ofassum ing the contract.

W hen FRS confirmed theirinterest,Cal

vo presented Genting w ith FRS as an alternative

to Buquebus. FRS hired Calvo as a consultant and by June 2016,Genting and FRS

had entered into an agreem ent for FRS to service the M iam i- Bim iniroute. The

agreementw as substantially sim ilarto the agreementthathad been reached previously

between Genting and Buquebus. During the negotiations w ith FRS,Calvo used an

Exceldocum enttem plate thathad been created by Balearia. The docum entcontained

revenue and cost projections based on data points used by Balearia including:(1)
seasonability percentages,(2)comm ission rates,(3)average price perpassenger,(4)
average price percargo unitand (5)ration ofbins to pallets.
During trial, Herrero testi
fied that these data points were Balearia confidential

inform ation. He explained that seasonability percentages inform the com pany of its

totalannualpassengers and cargo thatthe com pany transpods each m onth and helps

anal
yze historicaltrends and make future projections in connection with a specificferry
route. He furtherexplained thatseasonability percentages directly influence Balearia's

cash flows and num berofweekly services provided on any route,and forthatreason,it

is im podantto keep them confidential.

Herrero also explained that the com m ission rate is the average com m ission

paym entthat Balearia pays to m arketing and sales agencies based on the am ountof

cargo and passengersales these agencies m ake on Balearia's behal

f. He testified that

the com m ission rate is an im podantindicatorthatdirectly affects the bottom Iine profits

generated by any ferry route. W ith respectto average price per passenger, Herrero
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 8 of 22

explained thatthis is an average ofdifferenttypes ofpassengers,atthe differentrates

thateach passengerpaid based on theirrespective classi

fications. He explained thatit

was im portantto keep this inform ation confidentialbecause ithelps calculate passenger

revenue forany given route. He also stated thatthe average ticketprice is notpublicly

available inform ation.

Sim ilarly,Herrero testified that average price percargo unitis the average that

each Balearia custom erhas paid foreach cargo uni

tcarried on any given route and that

it is a key indicatorthataffects the bottom Iine forthatroute. Finally,Herrero testified

that the ratio of bins to pallets is a Ieading indicator as to to the am ount of cargo

revenue thata given ferry route willgenerate. In suppod ofits argum entthatCalvo took

this inform ation from Balearia,Balearia points to a Decem ber2015 em ailfrom Calvo,

where he asks a Balearia employee ''how many bins, pallets and cars (Balearia)
transpoded in 2014 inthe Freepod Iine.''(DE 121-7 at27).
By contrast,Calvo testified thatthe inform ation he used forthe Genting proposal

was notsecretorconfidentialand that he created the spreadsheetfrom scratch based

on his experience in the industry. Fudher, he testi

fied that the financialforecast is

primarily dependent upon (a)the size and type ofthe ferry being used,and (b) the
num berofpassengers expected to take the ferry. Because he used FRS'S ship to build

the forecast, and because according to him the num ber of passengers that arrive at

pods are public record,Calvo argues thatthe information he used in the spreadsheet

was nota Balearia trade secret. Calvo fudhertestified thatthe tem plate used forthe

spreadsheet is a sim ple profi

t and Ioss statem ent with no confidentialor proprietary

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algorithms - justbasic addition,subtraction,multiplication and division. He explained

thatthe tem plate is notpassw ord protected and is notmarked confidential.

Finally, Calvo testified that he has used sim ilar spreadsheets throughout his
careerin the ferry industry and thatthe inform ation he used came from Genting,FRS,

public records and based on his ow n experience in the industry. The Court credits

Calvo'stestim ony in this regard.

111. CO NCLUSIO NS OF LAW

a. Breach ofFiduciary Duties

UnderFlorida law,the elementsofaclaim forbreach offiduciaryduty are:(1)the

existence ofa fiduciary relationship'
,(2)breach ofa duty owed by the fiduciary;and (3)
dam ages proxim ately caused by the breach. W einberg v.Advanced Data Processing,

Inc.,147 F.Supp.3d 1359,1367 (S.D.Fla.2015) (citing Combe ?.F/ocarlnv.Grp.

Corp.,977 F.supp.zd 1301,1307 (S.D.Fla.2013)).
The Padies agree thatCalvo owed fiduciaryduties to Balearia. (PretrialStip;DE
92 at4). Balearia contends thatCalvo breached his fiduciary duties to Balearia by
keeping the Bim inibusiness oppodunity from Balearia while he was Balearia's CEO .

Calvo responds thathe did notbreach any duties,because he did notactually com pete

againstBalearia untilafterhe had Ieftthe com pany. He argues thatthe actions he took

before he resigned as CEO were just pre-depadure planning activities thatS'atwill''

em ployees are perm itted to m ake.

The Coud finds thatCalvo did breach his fiduciary duties to Balearia. It is well

established underFlorida law thatcorporate directors and officers m ustactin good faith

and in the bestinterestofthe corporation. Cohen v.Hattaway,595 So.2d 105 (FIa.5th

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DCA 1992). Moreover,Florida recognizesthe doctrine ofcorporate opportunity. Under

thatdoctrine,corporate officers are notpermitted to take business oppodunitiesthat1)
the corporation is financially able to undedake;2)is,from its nature,in the Iine ofthe
corporation's business and is ofpracticaladvantage to it;and 3) is one in which the
corporation has an interest, or a reasonable expectancy, and, by em bracing the

oppoduni
ty,the self-interestof the officerwillbe brought into conflictw ith that of his

corporation. Uvanile v.Denoff,495 So.2d 1177,1179 (FIa.4th DCA 1986).

Here,itis undisputed thatBalearia had been,since 2014,interested in acquiring

the Bim iniIine. Balearia and Calvo agree that Balearia was able to undedake the

oppoduni
ty i
fpresented,thatitwas in Balearia's Iine ofbusiness and thatBalearia had

a reasonable expectation to obtain that oppodunity. But the Coud disagrees with

Calvo's position thathe did notcom pete with Balearia forthis oppodunity untilafterhe

Ieft. Calvo adm itted that he was contacted by Genting to discuss the possibility of

Balearia servicing the Bim ini route. He also adm itted that he met with Genting

representatives in Septem ber2015 to discuss this m atter,without notifying anyone at

Balearia. Although he testi

fied that he did not have any discussions with Genting

related to a potentialdealwith Buquebus,the docum entary evidence adm itted attrial

indicates otherwise.

lndeed,the evidence shows that between Septem ber 5 and Septem ber 9 of

2015,Calvo exchanged severalem ails with Buquebus related to the costs ofthe Silvia

Ana in anticipation of his meeting with Genting. During that time, Calvo was also

helping Buquebus cedify the Silvia Ana with the US Coast Guard. Additionally,on a

November7,2015 email- justone week afterhe had ceased being Balearia's CEO -

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Calvo wrote an em ailto Buquebus'President stating thathe had arranged a m eeting

with the Bim inipeople forNovem ber8,2015 where he would ''again'

'presentthe Silvia

Ana as a replacementforthe SuperFast. Thus,the Coud finds thatfrom late August

2015 untilthe end ofO ctober2015 - w hile he was stillBalearia's CEO - Calvo was,in

fact,com peting againstBalearia.

Nevedheless,to succeed on its claim ,in addition to showing thatCalvo breached

his fiduciary duties, Balearia m ust show that it suffered dam ages and that those

dam ages were caused by Calvo's breach. Specifically, in the context of breach of

fiduciary duties the standard forproving causation underFlorida law is as follows:

a plaintiff m ust introduce evidence which affords a reasonable basis for

the conclusion that it is m ore Iikely than not that the conduct of the
defendantwas a substantialfactorin bringing aboutthe result.

F.D.I.C. v. Icard, M errill, Cullis, Tim m , Furen & Ginsburg, P.A., 588 Fed.Appx.853

(11th Cir.2014). ln Milbank; Tweed,Hadley & Mccloy v.Boon,13 F.3d 537 (2d Cir.
1994),an usurpation ofcorporate oppoduni
ty case,the Second Circuitrecognized that
l'breaches ofa fiduciary relationship in any context com prise a specialbreed of cases

that often Ioosen norm ally stringent requirem ents of causation and dam ages.'' Id.at

543. The courtheld that,to prove causation,the plaintiffhad to establish m erely that

the defendant's conductwas tdatIeast a substantialfactor''and nota t'butforcause'

'in

plainti
ff's failure to secure the usurped business oppodunity;itwas neither necessary

norfeasible forthe plainti

ffto establish t'butfor''causation. Id.

In E D./.C.ex re/.FirstNew York Bank forBus.B.Bober,95 CIV.9529 (JSM),

2003 W L 21976410 (S.D.N.Y.Aug.19,2003),the coud held thata breach offiduciary
duty by directors of a bank,with respectto Ioans controlled by the padiculardirectors,
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 12 of 22

was a substantialfactor in causing an identifiable loss,even though intervening actions

of the bank,through an exchange agreem entand collateralswap,m ay have affected

the am ountofthatloss. The coud found thatthe ''directors'breach seta chain ofevents

in m otion which resulted in Ioss to bank.'' Id. Sim ilarly,in Southland HeaIth Services,

Inc.v.Bank of Vernon,887 F.Supp.2d 1158,1187 (N.D.Ala.2012),a breach of

fiduciary duty case decided under Florida Iaw,the coud found that a fiduciary breach

need notbe solel

y responsible forthe failure ofa com pany in orderto be actionable. Id.

(''
The extent to which other factors may have contributed- or even been entirely
responsible for(the com pany's)collapse isentirelybeside the point.'').
Calvo argues thatBalearia cannotprove dam ages orcausation because Genting

gave Balearia a fair oppodunity to com pete for the Bim iniroute starting in January of

2016. But the Coud concludes that by keeping the oppodunity from Balearia since

Septem ber of 2015, Calvo effectively robbed Balearia of a corporate oppoduni

ty.

lndeed,the evidence shows thatG enting contacted Balearia to reopen conversation

aboutthe Bim iniIine as early as August2015. The evidence also shows thatBalearia

was the only com pany providing ferry service in the Caribbean. Additionally,because

Balearia had already serviced that route in 2013,b0th Utorand Herrero testified that

they were ready to resum e operation ofthatIine ifthe oppodunity arose.

ButforCalvo's actions,nei
therBuquebus nor FRS would have been considered

by Genting. In factthere is nothing to suggestthatBuquebus orFRS w ould have even

become aware of the oppodunity had it not been for Calvo. And even if Calvo was

entitled to compete with Balearia afterOctober30,2015 (a finding thatthe Coud is not

required to address on this record and is not making) had Calvo not kept the
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 13 of 22

com m unications with Genting secret,Balearia would have had a two-m onth head stad

into the negotiations. Therefore,the Coud finds that Calvo's breach of his fiduciary

duties was at Ieast a substantialfactor that prevented Balearia from obtaining the

Genting ferry deal.

b. Defend the Trade Secrets Act

Congress passed the DTSA on M ay 11,2016,creating a private rightof action

for an 'sowner of a trade secret that is m isappropriated''where the trade secret is

''related to a product or service used in,or intended for use in, interstate or foreign

commerce.'' Pub.L.114-153,130 Stat.376 (codified at 18 U.S.C.j 1836(b)(1))'

,see
also M.C.Dean,Inc.v.City ofMiamiBeach,Florida,199 F.Supp.3d 1349,1353 (S.D.
Fla.2016).
The statute defines t'trade secret''as 'd
financial, business, scientific, technical,

econom ic,orengineering''inform ation forw hich:

(A) the owner thereof has taken reasonable measures to keep such
inform ation secret'
,and
(B) the information derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascedainable through proper m eans by,another person who can obtain
econom ic value from the disclosure oruse ofthe inform ation'
,

Thus,$'(i)n a trade secretaction,the plaintiffbearsthe burden ofdemonstrating boththat

the specific inform ation it seeks to protect is secret and thatit has taken reasonable

steps to protect this secrecy.'' Am . Red Cross ?. Palm Beach Blood Bank, Inc., 143

F.3d 1407, 1410 (11th Cir.1998) (interpreting definition of ''trade secret' under the
Florida Uni
form Trade Secrets Actl;see also M.C.Dean,Inc',199 F.Supp.3d at1353
(applying precedentanalyzing Florida Uniform Trade SecretsActin DTSA case).

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The Coud finds that Calvo did notviolate the DTSA because the inform ation he

used was readily ascedainable through proper m eans by Calvo. See 18 U.S.C.

j 1839(3)(B). Calvo has over 20 years ofexperience in the ferry industry and was
Balearia's CEO for 3 years. Calvo testi
fied that any forecast in the ferry industry is

prim arily dependent upon the size and type ofthe ferry being used,and the num berof

passengers expected to take the ferry. He testified thatthe num bers he used forthe

forecastwere provided to him by Genting and FRS and the ferry used to create the

forecastwas the HSC HalunderJet,owned by FRS.

Cal
vo and Farrelltestified thatthe num berofpassengers thatarrive are ports are

public records, but in any event,Calvo stated that the passenger forecasts he used

were supplied by G enting. Indeed,he testified that m ost of the data points Balearia

claim s were taken from them ,were dependenton the num berofpassengers,which was

based on the size of the ferry and the data that Genting had provided him .Thus,the

num bers for the average price per passenger, bins and cars, containers, and the

incom e from casino bar were different from Balearia's and were based on the

inform ation he was provided by Genting.

Calvo did adm itthathe took the com m ission rate from the Balearia spreadsheet,

buthe explained thatfigure is standard in the industry and thatthe Balearia com m ission

rates are actually Iowerthan 5.90/0. Even so,he explained thatbased on his 27 years of

experience in the industry he could have easily arrived at that num ber. Although

Herrero testified thatcom m ission rates can vary widely,the Coud finds thatCalvo could

have determ ined thatnum beron his own,based on his over20 years ofexperience in

the industry and his three years ofexperience as Balearia's CEO in the Caribbean.
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 15 of 22

Consequently, the Coud finds that the inform ation Calvo used cam e from his

experience in the ferry industry. See W ellcare HeaIth Plans,Inc.v.Preitauer,2012 W L

1987877,at*4 (M .D.Fla.May 23,2012) (A(AJn employercannotpreclude its former

em ployeefrom using contacts and expedise gainedthrough previousemployment.n).
Moreover,Calvo testified - and Balearia did notdispute - thatthe spreadsheet

he appropriated from Balearia is just a regular Exceldocument containing simple

form ulas to add,subtract,m ul
tiply ordivide certain num bers, It does not contain any

algorithms, projected sales or password protection. He testified that every ferry

com pany he has worked foruses the sam e type ofspreadsheetand there was nothing

unique aboutthis one.

The Coud agrees that the template itself is not a trade secret. Indeed,the

tem plate is nothing m ore than a profitand Ioss statem entin an excelformat,which most

couds have found is not protected underthe DTSA. In Stenstrom Petroleum Services

Group v.Mesch,375 111.App.3d 1077 (App.Ct.111.2007)the Courtrejected plainti

ff's
claim thatits Excelbid spreadsheetqualified as a trade secret,finding thatm uch ofthe

information w as readily ascedainable and thatthe form ula could be acquired by anyone

with skills in that industry. In m aking thatfinding,the coud analyzed the relevantcase

law and concluded thatm ostofthe couds agreed thattools to create bids oreconom ic

m odels are notentitled to trade secretprotection:

O urconclusion finds suppod in case Iaw.See Service Centers ofChicago,

Inc. v. M inogue, 180 III.A pp.3d 447, 455, 129 IlI.Dec. 367, 535 N .E.2d
1132 (1989) (reversing preliminary injunction, finding that employer's
pricing form ula,w hich consisted of a custom er survey,cedain rules of
thum b, and the use of a Iinear foot m easurem ent,did not constitute a
trade secretl',CentralBuilding & Cleaning Co.v.Vodnansky,84 lII.App.3d
586,590,40 III.Dec.331,406 N.E.2d 32 (1980) (denialof preliminary
injunctive reliefnotan abuse oftrialcoud's discretion where employer's
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 16 of 22

estimating method involved estimating the time to complete a job,Iabor

and m aterials costs,and variables such as architecturaldetail,brick types,
and possible hindrances such as power Iines). Moreover, other
jurisdictions have sim ilarly concluded thatvarious methods ofcalculating
bids orthe constituentelem ents ofbids are nottrade secrets.See Fortna
v.Martin,158 CaI.App.2d 634,640,323 P.2d 146,149 (1958)(al
though
em ployerutilized a pricing/bidding system thatconsidered its costs,Isany
successfulbusiness man mustdo the same''l' ,Porter Industries, Inc.7.
Higgins,680 P.2d 1339,1342 (CoIo.App.1984)(employer's pricing and
bidding structure not a trade secretl'
,Mo-Kan CentralRecovery Co. v.
Hedenkamp!671 S.W .2d 396,400 (Mo.App.1984)(mere existence ofan
undefined bldding structure did not establish a trade secret where there
was no evidence presented thatthe structure was novelor com plicated
and could not be easily duplicated by others and w here no security
measureswere takento maintain necessaryelementofsecrecy).
Therefore,the Coud finds thatthe tem plate itselfis also notprotected.

Finally,the Coud finds thateven ifthe tem plate ori

ts contents were confidential,
Balearia did not take reasonable steps to protect them .2 W hen Calvo was nam ed

Balearia's CEO he was notasked to sign an em ploym entagreem ent. He was also not

asked to sign a confidentiality agreement or any type of non-disclosure agreement.

Although Cal
vo was provided a Code of Conduct containing Balearia's confidential

information policy,the policy consisted oftwo shod paragraphs stating that'em ployees

should notdisclose professionalsecrets'

'withoutspecifying ordefining whatconstituted

2 ln its Orderdenying summary judgment,the Coud found thatissues offactexisted

with respect to w hether Balearia had taken reasonable m easures to protect its
information because (1) Balearia had provided Calvo a summary and a Powerpoint
presentation ofthe Code ofConduct,which contained Balearia's policy with respectto
confidential information, (2) Balearia installed multi-tiered password protections to
protect cedain documents,(3)compadmentalized its information such thateven the
highestIevelemployees did nothave access to aIIdocuments and (4)cutoffCalvo's
access to Balearia's electronic data upon his depadure. See Furm anite Am erica,Inc.v.
F.D.W illiamson,Inc.,506 F.Supp.2d 1134,1141 (M .D.Fla.2007)(stating in Florida
Uniform Trade Secret Acts context that ldlclourts are extrem ely hesitant to grant
summary judgmentregarding the fact-intensive questions ofthe existence ofa trade
secret or whether a plaintifftook reasonable steps to protect its trade secrets.''
).
However,with the benefitofw itness testim ony and the evidence presented attrial,the
Coud finds thatBalearia's measures were deficient.

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Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 17 of 22

a professional secret. And even though Balearia lim ited em ployee access to

inform ation by password protecting theirnetw ork,when Calvo leftthe com pany he was

notasked to do an exitinterview ,he was notasked to delete data orreturn confidential

information thathad been stored in his personalIaptop and he was notasked to sign an

agreem ent not to com pete. There is nothing in the record show ing that Calvo was

aware orshould have been aware thata template used to make economic projections
was a trade secret since the tem plate itself was not m arked as a trade secret or

confidential. Thus,on this record,the Courtfinds thatBalearia did nottake reasonable

m easures to protectthe spreadsheet.

This conclusion finds suppod in recentcase Iaw. ln a sim ilarcase,the Eleventh

Circuit concluded that an em ployer had not taken reasonable steps to protect its

information where it allowed the ex-em ployee to store the inform ation on a personal

Iaptop and had notasked him to delete itonce he leftthe com pany. Yellowfin Yachts,

Inc.v.BarkerBoatworks,LLC,898 F.3d 1279,1299 (11th Cir.2018). There,the Coud

stated:

Yellow fin Iim iting em ployee access to the inform ation and password-
protecting the com puter network on which the information resided were
positive steps in securing the alleged trade secret. But Yellow fin
com prom ised the efficacy ofthese m easures by encouraging Barker to
keep the Custom er Inform ation on his cellphone and personal Iaptop.
Indeed, Barker refused to sign an em ployment agreem ent which stated
that he would, am ong other things, keep aIlYellow fin trade secrets in
confidence. Fudher,Yellowfin neither m arked the Custom er lnform ation
as confidential nor instructed Barker to secure the inform ation on his
personaldevices.And w hen Barker left Yellow fin,the com pany did not
requestthatBarkerreturn ordelete any ofthe inform ation.

Id.at300.
Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 18 of 22

In M .C.Dean, Inc. v.City of M iam i Beach, FIa., 199 F.Supp.3d 1349, 1355

(S.D. Fla. 2016) the Coud found that, even though payroll records where only
accessible to certain em ployees and Plaintiff had a policy of not disclosing those

records,Plaintiff had nottaken reasonable m easures to protect the records at issue,

am ong otherthings,because plainti

ffhad provided the records to a contractor,without

im posing any restrictions for its use. In reaching that conclusion,the Coud relied on

Laing ?.BP Exploration & Production Inc., No. 8:13-CV-1041-T-23TGW ,2014 W L

272846,*4 (M.D.Fla.Jan.14,2014),where the Middle DistrictofFlorida found that

plaintiffhad nottaken reasonable m easures to protectthe secrecy of its document,in

part,because ithad notm arked itas confidential. Also,in Hennegan Co.v.Arriola,855

F.Supp.2d 1354,1360 (S.D.Fla.2012),the Coud found thatan employerhad not

taken reasonable steps to protectits pricing information where ithad allowed a former

salesman to share that inform ation w ith potentialcustom ers and had not required the

salesm an to execute a confidentiality agreement.

Finally,districtcourts around the country have found thata Iack ofa written non-

disclosure or confidentiality agreementsuggests thatthe em ployer's safety measures

regarding confidentialinformation or trade secrets were unreasonable. See Alagold

Corp.v.Freeman,20 F.Supp.2d 1305 (M.D,Ala.1998).

,GillsAssociated Indus.,Inc.v.
Cari-All,Inc.,564 N.E.2d 881 (111.App.1990),
.Pressure Sci.,Inc.v.Kramer,413 F.
Supp.618 (D.Conn.1976). Accordingly,the Coud finds thatBalearia did nottake
reasonable steps to protectthe secrecy ofthe inform ation atissue.

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Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 19 of 22

IV. DAM AGES

Balearia's exped,M r.Fernandez,testi

fied thathe calculated Balearia's dam ages

by conducting a Iost profits analysis and a direct cost recovery calculation. M r.

Fernandez found that Balearia suffered approximately $2,843,000 in Iostprofits and

approximately $1,982,000 forcosts incurred in having its ship sitidle.

Mr.Fernandez found thatBalearia's projected revenue on the Biminiroute was

accurate,m ainly because itwas very sim ilarto the am ountofrevenue thatFRS realized

operating it. However,because Balearia was already wellestablished in the region and

had the Freeportroute,Mr.Fernandez concluded thatBalearia would have had greater

profitability by achieving econom ies of scale. Then,M r.Fernandez explained thatto

calculate the dam ages flow ing from the idle ship,he included the costs of the actual

Iease,crew,m aintenance,insurance and fuel.

Fora claim ofusurpation ofa corporate oppodunity,a corporation m ay also seek

restitution in the form ofIostprofits i

f itcan establish a causalconnection between the

claim ed dam ages and the defendant's todious conduct.See ICM fg & Assocs., Inc. B.

Bare Board Grp.,Inc.,238 So,3d 326,335 (FIa.2d DCA 2017). Lostprofits mustbe
proven ''with a reasonable degree of cedainty''and an award m ust be l
scom m ensurate

with what is fairand just and Iim ited to the actualdamages sustained.' Id.at 336
(ci
tations and internalquotation marksomitted).AIIthatis needed isthatd
'the mind ofa
prudent im padial person should be satisfied that the dam ages are not the result of

speculationorconjecture.' Id.(citationsand internalquotation marks omitted).

The Coud finds thatBalearia has established thatitsuffered $2,843,870 in lost
profitdam ages. Balearia has dem onstrated these Iostprofits through the presentation

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Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 20 of 22

of sufficient evidence in the form of projected/forecasted income from operating the

Genting route, and based upon cost and revenue item s that it has proved with a

reasonable degree ofcedainty.

Although Calvo argues thatBalearia made a $1.5 million mistake in itsdamages

calculations,the Coud cannotagree. Calvo argues thatthe chadercosts calculated by

Balearia should have been higherbecause they failed to accountfora rentalfee forthe

Pinar deI Rio. In suppod of this argum ent,Calvo relies on a docum ent created by

Balearia that breaks down the charter costs and estim ates the totalchader costs at

$2,431,107. (See Exhibit0-79 atDE 119-74).3 Calvo arguesthatthe documentbreaks

dow n the costs butfails to include a rentalfee forthe PinardeIRio. Because Balearia's

witnesses testified thatthe rentalfee paid by Balearia forthe PinardeIRio to service the

Miami-Freepod Iine was $1.5 million,Calvo argues thatthe totalchadercosts should

have been $3,931,107 instead of the $2,431,107 that Mr. Fernandez used in his
calculation.

First,it is unclearfrom the witness testim ony where this docum entcom es from

and the role i

tplayed in the dam ages calculation. M r.Fernandez was notasked about

it,nordid he testify thathe relied on itto m ake his calculation. And Herrero's testim ony

on this exhibit does not shed any additional light on the quest. During cross-

exam ination,Herrero firsttestified thathe had prepared a docum entw hich broke down

the $2,431,000. (DE 125-4 at65). However,when reviewing ExhibitD-79,he stated

thathe him selfdid notprepare thatdocumentand thati
tw as prepared by the 'Balearia

team.'' (DE 125-4 at66). Although he conceded thatthe documentdid notcontain a

3 The Coud notes that the document at issue,w hich was adm itted as Defendant's
Exhibit79 is in Spanish and no English translation was provided to the Coud.

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Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 21 of 22

Iine item for the 1,s-m illion-dollar charter fee, there was no fudher testim ony with

respectto the role the documentplayed in the dam ages calculation.

Second,M r.Fernandez and Herrero testified thatthe dam ages calculation was

based on a tim e-charter. In a tim e-charteragreement,the subsidiary pays a fixed fee to

the parent,who in turn covers the costs ofthe ship. (DE 125-3 at15). Mr.Fernandez
and Herrero testified thatthe $2,431,000 on chartercosts was the price thatthe parent
com pany agreed w ith the subsidiary and thatthe parentcom pany feltwould covertheir

operation ofthe ship. (DE 125-3 at21.

,DE 125-4 at70). They fudhertestified that
$2,431,000 on chartercosts was a fairmarketvalue numberfora time chader. (DE
125-3 at26-27.
,DE 125-4 at43).
The Coud has no reason to disbelieve M r.Fernandez's and Herrero's testim ony.

Considering thattim e chaders allow a parentand a subsidiary to agree to a fixed fee for

chadercosts and considering thatthe unrebutted testimony was that $2,431,000 on

chadercosts was a fair marketvalue num berfor a tim e chader,the Coud concludes

that Balearia has proved that it suffered $2,843,870 in Iost profit damages with a
reasonable degree ofcedainty.

However,the Coud finds that Balearia's claim of dam ages foran idle vesselis

m eritless. Had Balearia been successfulin obtaining the contractforthe Bim iniroute,it

would not have had an idle or underused vessel. To the contrary,the vesselwould

have been em ployed in servicing this route. Additionally,Herrero testified that in July

2016,the PinardeIRio was returned to Balearia's parent com pany and Balearia was

notcharged any rent,penalty orfee in connection with its return.

Case 1:16-cv-23300-KMW Document 126 Entered on FLSD Docket 03/06/2019 Page 22 of 22

V. CO NCLUSIO N

Forthe foregoing reasons,the Coud finds thatCal

vo breached its fiduciary duties

to Balearia and thatBalearia is entitled to $2,843,870 in Iostprofitdamages.The Court

willenterfinaljudgmentseparately pursuantto Rule 58 ofthe FederalRules ofCivil

Procedure. AIIpending m otions are DENIED AS M OOT. AIIdeadlines and hearings

are CANCELED. The Clerk is directed to CLO SE this case.

DO NE AND O RDERED in Chambers in M iam i,Florida,this A day of March

2019.

KATHL EN M .W ILLIAM S
UNITE STATES DISTRICT JUDG E

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