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Florida’s Deceptive and Unfair Trade Practices Act, commonly referred to as “FDUPTA,” prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  Florida Statutes section 501.204(1).  A central feature of the statute is the statutory aim to protect consumers.  A deceptive act involves a “representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.”  Zlotnick v. Premier Sales Group, Inc., 480 F.3d 1281 (11th Cir. 2007).  To establish an unfair practice, the plaintiff must show that it is “one that ‘offends established public policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’”  Marrache v. Bacardi U.S.A., Inc., 17 F.4th  1084 (11th Cir. 2021).  In commercial disputes, businesses sometimes sue each other under FDUPTA claiming that harm that the defendant’s business caused the plaintiff’s business ultimately harmed consumers, and therefore allows the plaintiff to sue under FDUPTA.  Claims under FDUPTA offer wider relief (such as injunctions, along with damages and recovery of legal expense from the defendant) and sometimes easier evidentiary burdens than other claims.  In such cases, defendants are sometimes successful in defeating the claims on the grounds that no real consumer harm existed.  Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents 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 law, and other legal disputes in federal and state courts and in arbitration.

Florida’s appellate courts have held that non-consumers may assert claims for damages under FDUPTA.  Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, 169 So.3d 164 (Fla. 4th DCA 2015).  To state a claim for injunctive relief (i.e., a court order barring certain conduct), a plaintiff must allege: (1) a deceptive or unfair act or practice in trade; and (2) that plaintiff is a person “aggrieved” by the deceptive act or practice.  To state a claim for damages under FDUPTA, a plaintiff must allege: “(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.”  Carriuolo v. General Motors Co., 823 F.3d 977 (11th Cir. 2016).  However, to prove the first element for a claim for either damages or injunctive relief under FDUPTA, i.e., the existence of a deceptive or unfair practice, the plaintiff must prove that the relevant act or practice was harmful to a consumer.  The appellate court in Caribbean Cruise Line explained that “while the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all the elements of a FDUPTA claim, the claimant does not have to be a consumer to bring the claim.”

Plaintiffs often try to fit their cases into a FDUPTA claim when there is no real harm to consumers, but instead harm only to the plaintiffs.  For example, a recent case in the Eleventh Circuit Court of Appeals, CMR Construction and Roofing, LLC v. UCMS, LLC, 2022 WL 3012298 (11th Cir. 2022), affirmed a federal trial Judge’s decision to dismiss a construction service provider’s FDUPTA claim because it failed to allege harm to a consumer.  The appellate court explained that: “CMR and UCMS were service providers that … provided … construction services to the Association.  And CMR alleged that it was harmed because UCMS interfered with CMR’s ability to provide services to the Association, after CMR had already expended money and resources to perform the services.  Because CMR alleged harm solely to itself—in its capacity as the construction service provider, and not to the consumer or its services—CMR failed to allege harm to a consumer.”

Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

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