542.16 Purpose.—The Legislature declares it to be the purpose of this act to complement the body of federal law prohibiting restraints of trade or commerce in order to foster effective competition. It is the intent of the Legislature that this act be liberally construed to accomplish its beneficial purpose.
542.17 Definitions.—Unless a different meaning is clearly indicated by the context, for the purposes of this chapter, the terms defined in this section have the following meanings ascribed to them:
(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.
542.19 Monopolization; attempts, combinations, or conspiracies to monopolize.—It is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state.
542.20 Exemptions.—Any activity or conduct exempt under Florida statutory or common law or exempt from the provisions of the antitrust laws of the United States is exempt from the provisions of this chapter.
(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.
(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:
(a) Duplicates amounts which have been awarded for the same injury;
(b) Is properly allocable to natural persons who have excluded their claims pursuant to paragraph (3)(b); or
(c) Is properly allocable to any business entity.
(3) In any action under subsection (2):
(a) The Attorney General or state attorney shall, at such time, in such manner, and with such content as the court may direct, cause notice to be given to the proposed class by publication. If the court finds that notice given solely by publication would deny due process of law to any person or persons, the court shall direct further notice to such person or persons according to the circumstances of the case.
(b) Any person on whose behalf an action is brought under subsection (2) may elect to exclude from adjudication the portion of the claim for monetary relief attributable to her or him by filing notice of such election with the court within such time as specified in the notice given pursuant to paragraph (a). The final judgment in such action shall be res judicata as to any claim under this section by any person on behalf of whom such action was brought and who fails to give such notice within the period specified in the notice given pursuant to paragraph (a).
(c) No dismissal or compromise shall be entered without the approval of the court, and notice, if any, of the proposed dismissal or compromise shall be given in such manner as the court directs.
(d) Monetary relief shall be distributed in such manner as the court in its discretion may authorize, subject to the requirement that any distribution procedure adopted shall afford each person a reasonable opportunity to secure her or his appropriate portion of the net monetary relief.
(e) In any action under subsection (2) in which there has been a determination that a defendant agreed to fix prices in violation of s. 542.18, damages may be proved and assessed in the aggregate by statistical or sampling methods, by the computation of illegal overcharges, or by such other reasonable system of estimating aggregate damages as the court in its discretion may permit without the necessity of separately proving the individual claims of, or amounts of damage to, persons on whose behalf the suit was brought.
542.23 Equitable remedies.—In addition to other remedies provided by this chapter, any person shall be entitled to sue for and have injunctive or other equitable relief in the circuit courts of this state against threatened loss or damage by a violation of this chapter. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney’s fee, to the plaintiff.
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.—In a civil action maintained under this chapter by the Attorney General or a state attorney, any party to such action may petition the court for entry of a consent decree or for approval of a settlement agreement. The proposed decree or agreement shall set out the alleged violations, the future obligations of the parties, the damages or other relief agreed upon, and the reasons for entering into the consent decree or settlement agreement.
542.25 Judgment in favor of state as prima facie evidence.—A final judgment or decree entered in any civil or criminal proceeding brought by the Attorney General or a state attorney under s. 542.21 or s. 542.23 to the effect that a defendant has violated s. 542.18 or s. 542.19, or entered in any civil or criminal proceeding brought by the United States Department of Justice under comparable federal laws, shall be prima facie evidence against such defendant in any civil action or proceeding under this chapter brought by any other person against such defendant as to all matters with respect to which such judgment or decree would be an estoppel as between the parties thereto; however, this section does not apply to a consent judgment or decree entered before any testimony has been taken. Nothing contained in this section shall be construed to impose any limitation on the application of collateral estoppel.
(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.
(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.
(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:
(a) Produce such documentary material for inspection and copying or reproduction;
(b) Answer, under oath and in writing, written interrogatories;
(c) Give sworn oral testimony concerning the documentary material or information; or
(d) Furnish any combination of such material, answers, or testimony.
(2) The demand shall:
(a) Be served upon the person in the manner required for service of process in this state or by certified mail showing receipt by the addressee or by the authorized agent of the addressee.
(b) State the nature of the conduct which constitutes the violation of this chapter or of the federal antitrust laws and which is alleged to have occurred or to be imminent.
(c) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such materials to be reasonably identified.
(d) Prescribe a date and time at which the person must appear to testify, under oath or affirmation, or by which the person must answer written interrogatories or produce the documentary material for inspection or copying; however, such date shall not be earlier than 30 days from the date of service of the investigative demand.
(e) Specify a place for the taking of testimony or for the submission of answers to interrogatories and identify the person who is to take custody of any documentary material. Inspection and copying of documentary material shall be carried out at the place where the documentary material is located or at such other place as may be thereafter agreed to by the person and such designated custodian. Upon written agreement between the person and the designated custodian, copies may be substituted for original documents.
(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:
(a) The standards applicable to subpoenas or subpoenas duces tecum issued by a court of this state in aid of a grand jury investigation; or
(b) The standards applicable to a discovery request under the Florida Rules of Civil Procedure, to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this chapter.
(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:
(a) Any court or tribunal in this state; or
(b) Other law enforcement authorities of the Federal Government or other state governments that have restrictions governing confidentiality similar to those contained in this subsection.
(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:
(a) Institute a civil proceeding under s. 542.22;
(b) Lay before a grand jury of this state evidence concerning a violation of this chapter;
(c) Invoke the power of a court to compel the production of evidence before a grand jury; or
(d) File a civil complaint or criminal indictment alleging a violation of this chapter.
(14)(a) No person, knowing or having reason to believe that a demand pursuant to this section is pending, shall:
1. Alter, destroy, conceal, or remove any record, document, or thing with the purpose of impairing its verity or availability in such proceeding or investigation; or
2. Make, present, or use any record, document, or thing, knowing it to be false.
(b) Any person who violates a provision of this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(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.
542.29 Duty of public officers.—In any investigation and in any criminal or civil action commenced pursuant to this chapter, it shall be the duty of all public officers and their deputies, assistants, clerks, subordinates, or employees to render and furnish to the Attorney General or a state attorney, when so requested, assistance and all information available in their official capacity.
542.30 Jurisdiction and venue.—Without regard to the amount in controversy, a suit or proceeding brought under this chapter shall be brought in the circuit court in and for any county in which the cause of action arose; in which any defendant resides, is found, or has an agent; or in which any act in furtherance of the conduct prohibited by this chapter occurred.
542.31 Action not barred as affecting or involving interstate or foreign commerce.—No action under this chapter shall be barred on the grounds that the activity or conduct complained of in any way affects or involves interstate or foreign commerce. It is the intent of the Legislature to exercise its powers to the fullest extent consistent with the Constitutions of this state and the United States.
542.32 Rule of construction and coverage.—It is the intent of the Legislature that, in construing this chapter, due consideration and great weight be given to the interpretations of the federal courts relating to comparable federal antitrust statutes. In particular, the failure to include in this chapter the substantive provisions of s. 3 of the Clayton Act, 15 U.S.C. s. 14, shall not be deemed in any way to limit the scope of s. 542.18 or s. 542.19.
(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.
(b) The licensee, or any person deriving title from the licensee, of the use of a trademark or service mark, and the business format or system identified by that trademark or service mark, may agree with the licensor to refrain from carrying on or engaging in a similar business and from soliciting old customers of such licensor within a reasonably limited time and area, so long as the licensor, or any person deriving title from the licensor, continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.
(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.
Note.—Former s. 542.12.
542.331 Applicability of s. 542.33.—Section 542.33 is hereby repealed with respect to restrictive covenants entered into or having an effective date on or after July 1, 1996. Section 542.33 shall continue to govern enforcement of restrictive covenants entered into before July 1, 1996.
(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:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
(c) A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the 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. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.
(d) In determining the reasonableness in time of a postterm restrictive covenant not predicated upon the protection of trade secrets, a court shall apply the following rebuttable presumptions:
1. In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.
2. In the case of a restrictive covenant sought to be enforced against a former distributor, dealer, franchisee, or licensee of a trademark or service mark and not associated with the sale of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 1 year or less in duration and shall presume unreasonable in time any restraint more than 3 years in duration.
3. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 3 years or less in duration and shall presume unreasonable in time any restraint more than 7 years in duration.
(e) In determining the reasonableness in time of a postterm restrictive covenant predicated upon the protection of trade secrets, a court shall presume reasonable in time any restraint of 5 years or less and shall presume unreasonable in time any restraint of more than 10 years. All such presumptions shall be rebuttable presumptions.
(f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
1. In the case of a third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.
2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.
(g) In determining the enforceability of a restrictive covenant, a court:
1. Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.
2. May consider as a defense the fact that the person seeking enforcement no longer continues in business in the area or line of business that is the subject of the action to enforce the restrictive covenant only if such discontinuance of business is not the result of a violation of the restriction.
3. Shall consider all other pertinent legal and equitable defenses.
4. Shall consider the effect of enforcement upon the public health, safety, and welfare.
(h) A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.
(i) No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.
(j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant. No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.
(k) In the absence of a contractual provision authorizing an award of attorney’s fees and costs to the prevailing party, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant. A court shall not enforce any contractual provision limiting the court’s authority under this section.
(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.
542.336 Invalid restrictive covenants.—A restrictive covenant entered into with a physician who is licensed under chapter 458 or chapter 459 and who practices a medical specialty in a county wherein one entity employs or contracts with, either directly or through related or affiliated entities, all physicians who practice such specialty in that county is not supported by a legitimate business interest. The Legislature finds that such covenants restrict patient access to physicians, increase costs, and are void and unenforceable under current law. Such restrictive covenants shall remain void and unenforceable for 3 years after the date on which a second entity that employs or contracts with, either directly or through related or affiliated entities, one or more physicians who practice such specialty begins offering such specialty services in that county.
(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:
(a) Grant or accept any letter of credit, or other document which evidences the transfer of funds or credit, or enter into any contract for the exchange or purchase of commodities when the letter of credit, contract, or other document contains any provision which requires such person to discriminate against, or to certify that it has not dealt or will not deal with, any other person on the basis of sex, race, color, religion, ancestry, or national origin, or on the basis of a person’s lawful business associations, in order to comply with, further, or support a foreign boycott or embargo imposed by a nation other than the United States.
(b) Refuse to grant or accept any letter of credit, or other document which evidences the transfer of funds or credit, or refuse to enter into any contract for the exchange of commodities, on the ground that it does not contain such a discriminatory provision or certification as is described in paragraph (a) in order to comply with, further, or support a foreign boycott or embargo imposed by a nation other than the United States.
(c) Request or furnish information with regard to, or reflective of, a person’s race, religion, sex, ethnic or national origin, or presence or absence on a blacklist, for the use of a foreign country or its nationals or residents, in order to comply with, further, or support a foreign boycott or embargo imposed by a nation other than the United States.
(d) Request or furnish information with regard to, or reflective of, the place where commodities were not manufactured or did not originate, for the use of a foreign country or its nationals or residents, in order to comply with, further, or support a foreign boycott or embargo imposed by a nation other than the United States.
(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.
542.36 Continuing violations.—Violations commenced prior to the effective date of this act and continuing after the effective date shall be actionable as provided in this chapter. The fact that any conduct occurred prior to the effective date of this act shall not affect its relevance in proving that a violation of this chapter has occurred or is occurring.
