Can businesses and businesspeople sue under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA)?

Enjoy the below article. If you have any specific questions as you read about FDUTPA and lawsuits under FDUTPA, please contact Andrew Bernhard at Bernhard Law Firm PLLC, abernhard@bernhardlawfirm.com, 786-871-3349, www.bernhardlawfirm.com.

What is FDUTPA?

Title 33 of the Florida Statutes holds laws concerning the regulation of trade, commerce, investments, and solicitations. Chapter 501 of Title 33 is the consumer protection chapter, regulating aftermarket crash parts, telemarketing, and unfair and deceptive acts or practices in business. Part II of this consumer protection chapter concerns deceptive and unfair trade practices, known as the Florida Unfair and Deceptive Trade Practices Act, or “FDUTPA.” See § 501.201, et seq., Fla. Stat. (2014).

http://en.wikipedia.org/wiki/Downtown_Miami#mediaviewer/File:Crowded_Metromover.jpg
http://en.wikipedia.org/wiki/Downtown_Miami#mediaviewer/File:Crowded_Metromover.jpg

The Florida Legislature’s express purpose in enacting FDUTPA was threefold:

  • To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices (NOTE: I have underscored the “and” to punctuate that FDUTPA affects not only consumer protection law, but also Florida law on business competition methods and generally improper business practices);
  • To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce (NOTE: I have underscored the “and . . . business enterprises” to punctuate that FDUTPA is expressly designed to protect not just consumers but also businesses from the improper acts of others (persons or businesses) in trade and commerce); and
  • To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection (NOTE: inherent in this purpose is an acknowledged existing difference between state and federal law on consumer protection).

See § 501.202, Fla. Stat. (2014).

Under FDUTPA, the Florida Legislature broadly outlawed certain acts and practices while conducting business in Florida (“in the conduct of any trade or commerce”), including:

  • Unfair methods of competition;
  • Unconscionable acts;
  • Unconscionable practices;
  • Deceptive acts; and
  • Deceptive practices.

See § 501.204, Fla. Stat. (2014).

The Florida Legislature expressly provided that interested parties or persons in FDUTPA included any person affected by a violation of FDUTPA. § 501.203(6), Fla. Stat. (2014). The Florida Legislature expressly provided that FDUTPA regulated advertising, soliciting, providing, offering, or distributing (whether by sale, rental, or otherwise) of any good or service, or any property (whether tangible or intangible), or any other article, commodity, or thing of value, wherever situated. § 501.203(8), Fla. Stat. (2014). In other words, FDUTPA regulates all business in Florida for everybody, and works to ensure that businesses conduct their affairs fairly and without deception.

Biscayne Boulevard night 20101202 by Marc Avarette
Biscayne Boulevard night 20101202 by Marc Avarette

Can businesses and businesspeople sue under FDUTPA?

Yes, it appears that business can sue under FDUTPA. The Florida Legislaure provided that anyone aggrieved by a violation of FDUTPA may bring an action to obtain a declaratory judgment that an act or practice violates FDUTPA and to enjoin a person who has violated, is violating, or is otherwise likely to violate FDUTPA. § 501.211(1), Fla. Stat. (2014). Anyone who has suffered a loss resulting from a violation of FDUTPA may recover actual damages, plus attorney’s fees and costs. § 501.211(2), Fla. Stat. (2014). Under the above express terms of FDUTPA, business entities and businesspeople can sue for damages from outlawed acts in ordinary business transactions, even where there is no consumer transaction involving personal dealings.

Have any appellate courts addressed this question?

The Fourth District Court of Appeal addressed this very issue in Beacon Property Mgmt., Inc. v. PNR, Inc., 890 So. 2d 274, 277–79 (Fla. 4th DCA 2004). As the Beacon court held, the plain text of FDUTPA permits suits between purely commercial interests. In holding this way, the Beacon court noted that the general proscription of FDUTPA does not and did not originally contain any indication that it was intended to be limited to consumer transactions. Id. at 277. In 1993, the Florida Legislature made some significant changes to FDUTPA, including by deleting definitions of consumer transaction and supplier, by expanding the definition of consumer to add several business entities (including a catch-all “any commercial entity”), and by adding the words “unconscionable acts or practices” to the general proscription. Id. at 277–78. The Beacon court then held:

“We therefore conclude that the 1993 amendments to FDUTPA made clear that the statute is not limited to purely consumer transactions. It is now intended by its plain text to apply to any act or practice occurring “in the conduct of any trade or commerce” [e.s.] even as between purely commercial interests.”

Id. at 278.

Accordingly, businesses and businesspeople should be able to sue under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

Miami-Dade Metromover by Joedamadman
Miami-Dade Metromover by Joedamadman

If you have any specific questions about FDUTPA or lawsuits under FDUTPA, please contact Andrew Bernhard at Bernhard Law Firm PLLC, abernhard@bernhardlawfirm.com, 786-871-3349, www.bernhardlawfirm.com. Bernhard Law Firm is located in the Wells Fargo Plaza/JW Marriot Building on the Miami River in downtown Miami, 333 SE 2nd Avenue, Miami, Florida 33131. Bernhard Law Firm is a full service law firm handling trials and appeals in business and financial disputes. Bernhard Law Firm focuses on fraud, business disputes, and financial and consumer claims.

Bernhard Law Firm PLLC
Bernhard Law Firm PLLC

 

 

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