MIAMI BUSINESS LITIGATION: NON-CONSUMER FDUTPA CLAIM

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) prohibits unfair and deceptive trade practices in the conduct of any trade or commerce. It “is designed to protect consumers from deceptive acts that mislead consumers.” CareerFairs.com v. United Business Media LLC, 838 F. Supp. 2d 1316 (S.D. Fla., Sept. 28, 2011). “A claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” City First Mortg. Corp. v. Barton, 988 So. 2d 82 (Fla. 4th DCA 2008). An unfair practice is “one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” PNR, Inc. v. Beacon Property Management, Inc., 842 So. 2d 773 (Fla. 2003). Because FDUTPA is meant to protect consumers, a question arises regarding the extent to which non-consumers can sue under the statute. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The issue was mostly addressed in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., 169 So. 3d 164 (Fla. 4th DCA 2015). The plaintiff brought an action under FDUTPA against the Better Business Bureau (BBB) because the BBB awarded the plaintiff an “F” grade. The trial court granted the BBB’s motion to dismiss because the plaintiff was not in a consumer relationship with the BBB. However, the appellate court reversed for three reasons. First, the court focused on the language of the statutes which provides that, “[i]n any action brought by a person who has suffered a loss as a result of a violation of this party, such person may recover actual damages . . . .” The court determined the statute’s reference to a “person,” as opposed to a “consumer,” meant that a FDUTPA plaintiff does not need to be a consumer to sue. Second, the court determined a modification in the statute that replaced the word “consumer” with the word “person” bolstered its conclusion. Third, the legislature broadened the definition of “consumer” to include a business and commercial entity.

The ability to bring suit as a non-consumer does not fully address the issue because the same court also determined that a plaintiff bringing a FDUTPA claim must still prove actual damages to consumers. Caribbean Cruise Line, Inc., 169 So. 3d 164 (“[W]hile the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to be a consumer to bring the claim.”). These actual damages are defined as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.” Smith v. 2001 S. Dixie Highway, Inc., 872 So. 2d 992 (Fla. 4th DCA 2004). An objective test is used to determine whether there are actual damages to consumers. Altor Locks, LLC v. Proven Indus., Inc., 2022 WL 17987073 (M.D. Fla. Oct. 18, 2022). This means that a party asserting a deceptive trade practice claim does not need to show consumers actual relied on the defendant’s false or misleading representation to recover. Carriuolo v. Gen. Motors Co., 823 F.3d 977 (11th Cir. 2016). Instead, the plaintiff need only show that a consumer was actually damaged.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.