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Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) can be a powerful statute because plaintiffs can bring a wide variety of claims due to the expansive nature of what constitutes an unfair method of competition. FDUTPA 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.” Fla. Stat. § 501.204. A plaintiff needs to allege only that a defendant committed a deceptive act or unfair practice, causation, and actual damages to state a FDUTPA claim. Baptist Hosp., Inc. v. Baker, 84 So. 3d 1200 (Fla. 1st DCA 2012) (providing the elements of a FDUTPA claim). Precedent from the Supreme Court of Florida, in PNR, Inc. v. Beacon Prop. Mgmt, Inc., 842 So.2d 773 (Fla. 2003), expansively defined “unfair practice” to mean an act “that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”  The amorphous nature of “unethical, oppressive, and unscrupulous acts” seemingly provides plaintiffs an almost endless opportunity to assert FDUPTA claims.  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.

FDUTPA can provide plaintiffs with an opportunity to assert unique fact patterns that give rise to a cognizable cause of action. However, a plaintiff asserting a FDUPTA claim must think carefully about its claimed damages to avoid early dismissal.

Claiming actual damages can be a limiting factor to recovering under FDUTPA, despite the expansive definition of “unfair practices.”  For example, the plaintiff must prove that a consumer suffered damages based on the definition of unfair practices. Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cnty., Inc., 169 So. 3d 164 (Fla. 4th DCA 2015). As just stated, the PNR decision defines “unfair practices” to mean acts that are substantially injurious to consumers.  This requirement can be problematic if the plaintiff did not directly suffer the injury or engage in a consumer transaction. See Stewart Agency, Inc. v. Arrigo Enterprises, Inc., 266 So. 3d 207 (Fla. 4th DCA 2019) (granting summary judgment because the plaintiff “could not identify any transaction where [the defendant] sold a vehicle with a Takata recall notice without disclosing that information to the consumer”); Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290 (S.D. Fla. 2014) (dismissing the plaintiff’s complaint for lack of standing because he did not engage in a consumer transaction, i.e. the purchase of goods or services); see also Fla. Stat. § 501.203 (defining consumer to mean “an individual; child,…; business; firm; association; joint venture…”).

Another limiting factor in obtaining damages is that the FDUPTA definition of “actual damages” prohibits many categories of damages that would normally be available to a plaintiff. Florida’s Third District Court of Appeal in Rollins v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984), defined “actual damages” as meaning “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.”   The  Rollins decision explained that a       FDUTPA plaintiff may not recover mere nominal damages, speculative damages, and damages for subjective feelings of disappointment. Plaintiff’s can therefore assert a FDUTPA claim only for damages resulting from the differentiation of a product or service.  Federal case law has interpreted FDUPTA to further restrict damages.  For instance, the United States District Court for the Northern District of Florida in Thomas v. Generac Power Sys. Inc., 2020 WL 9602342, (N.D. Fla. May 8, 2020), explained that the definition of actual damages also precludes FDUTPA plaintiffs from recovering consequential damages, such as repair damages, resale damages, personal injury damages, and pain and suffering.

Peter Mavrick is a Fort Lauderdale business litigation attorney, 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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