FORT LAUDERDALE BUSINESS LITIGATION: FDUTPA ATTORNEY’S FEES

The Florida Legislature declared deceptive and unfair methods of competition and practices in trade and commerce to be unlawful under the Florida Deceptive and Unfair Trade Practices Act, or FDUTPA for short. Fla. Stat. § 501.202. FDUTPA is a powerful statute because deceptive and unfair trade practices broadly encompass many actions that occur in a commercial context. A litigant need only prove that the defendant used an “unfair method[ ] of competition, unconscionable acts or practices, [or] unfair or deceptive acts or practices in the conduct of any trade or commerce” to prevail under FDUTPA. Wesley Fin. Group, LLC v. Westgate Resorts, Ltd., 746 F. Supp. 3d 1342 (M.D. Fla. 2024). These acts are generally construed as those that “offend[ ] established public policy and [are] immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001). The Fort Lauderdale 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.

FDUTPA is also powerful because it contains a prevailing party attorney’s fee provision. Fla. Stat. § 501.2105 (“In any civil litigation resulting from an act or practice involving a violation of this part… the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.”). This provision overcomes the American Rule prohibiting the recovery of attorney’s fees unless they are expressly provided for under a relevant statutory provision or contract provision. Q.H. v. Sunshine State Health Plan, Inc., 305 So. 3d 543 (Fla. 4th DCA 2020) (Under the American rule, “a court may only award attorney’s fees when such fees are expressly provided for by statute, rule, or contract.”). However, a careful reading of FDUTPA demonstrates that an award of prevailing party attorney’s fees is discretionary because the Legislature used the word “may” instead of “shall” in the statutory language. Courts employ a multi-factor test when determining whether they should exercise their discretion and award the prevailing party her or his attorney’s fees. A non-exclusive list of the factors is as follows:

(1) the scope and history of the litigation;

(2) the ability of the opposing party to satisfy an award of fees;

(3) whether an award of fees against the opposing party would deter others from acting in similar circumstances;

(4) the merits of the respective positions including the degree of the opposing party’s culpability or bad faith;

(5) whether the claim brought was not in subjective bad faith but frivolous, unreasonable, groundless;

(6) whether the defense raised a defense mainly to frustrate or stall; and

(7) whether the claim brought was to resolve a significant legal question under FDUTPA law.

Humane Soc. of Broward Cnty., Inc. v. Florida Humane Soc., 951 So. 2d 966 (Fla. 4th DCA 2007). Courts may also extend a FDUTPA fee award to cover non-FDUTPA claims so long as the non-FDUTPA claims are not clearly unrelated in any way to establishing or defending an alleged violation of FDUTPA. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013). Litigants should carefully consider the ramifications or bringing or defending a FDUTPA claim given its brad nature and propensity to make attorney’s fees an issue in the lawsuit.

The Fort Lauderdale 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.