This article provides a quick primer on the elements of FDUTPA claims, and some general limitations for each element under Florida law. If you have questions about FDUTPA claims, deceptive and unfair business practices, and business disputes, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

The Elements of FDUTPA

Under Florida law, the elements of a FDUTPA claim for violation of Florida Deceptive and Unfair Trade Practices Act (FDUTPA), a plaintiff must sufficiently allege with supporting facts and prove these three elements: (1) deceptive act or unfair practice; (2) causation; and (3) actual damages. Angelo v. Parker, 275 So. 3d 752, 755 (Fla. 1st DCA 2019) (citing Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1140 (Fla. 3d DCA 2008)).

FDUPTA Damages Limits

A FDUTPA plaintiff must prove actual damages, as “FDUTPA does not provide for recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment.” Rollins, Inc. v. Butland, 951 So. 2d 860, 873 (Fla. 2d DCA 2006); Ahearn v. Mayo Clinic, 180 So. 3d 165, 176 (Fla. 1st DCA 2015); City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th DCA 2008).[1]

Florida law prohibits recovery of consequential damages in FDUTPA claims; i.e., for upcharges, overcharges, lost profits, the difference between purchase price and “market value,” a diminution in value, or resale losses. Angelo v. Parker, 275 So. 3d 752, 756 (Fla. 1st DCA 2019) (citing Lombardo v. Johnson & Johnson Consumer Cos., Inc., 124 F. Supp. 3d 1283, 1289–90 (S.D. Fla. 2015) (deceptive pricing and overcharges are insufficient) and Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1140 (Fla. 3d DCA 2008) (no consequential damages, such as resale losses).[2]

[KEEP READING BELOW PHOTO]

As recently held: “the mere existence of an overcharge does not establish a violation of FDUTPA.” Angelo at 756. Likewise, a FDUTPA plaintiff cannot establish actual damages through an inability to resell a product at a profitable price. Hanson Hams, Inc. v. HBH Franchise Co., LLC, 2004 WL 5470401, at *10 (S.D. Fla. Dec. 21, 2004) (no actual damages by inability to resell at a profitable amount). Lost profit is a consequential damage that is not recoverable or actionable under FDUTPA. BPI Sports, LLC v. Labdoor, Inc., 2016 WL 739652, at *6 (S.D. Fla. Feb. 25, 2016).

Because there can be no FDUTPA recovery for upcharge, overcharge, lost profit, difference between purchase price and “market value,” or resale losses, a plaintiff must prove that there was an actual difference between the condition of the product as contracted and the condition of the product actually delivered. Stuart Roofing, Inc. v. Thomas, 372 So. 3d 298, 300 (Fla. 4th DCA 2023) (quoting Rollins, Inc. v. Heller, 454 So. 2d 580, 584 (Fla. 3d DCA 1984) and Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So. 2d 311, 314 (Fla. 4th DCA 1998) (car contracted without accident damage but delivered with significant accident damage)); Rodriguez v. Recovery Perf. & Marine, LLC, 38 So. 3d 178, 181 (Fla. 3d DCA 2010).[3]

Thus, a FDUTPA plaintiff cannot establish actual damages solely through an expert witness’s perceived decrease in the value of a product sold, with no independent showing of harm or wear and tear to the product itself. In re Crown Auto Dealerships, Inc., 187 B.R. 1009, 1019 (Bankr. M.D. Fla. 1995).

Under Florida law, a trial court cannot consider inadmissible evidence in determining actual damages on FDUTPA claims, such as purported experts that do not suffice the Florida Rules of Evidence. Rose v. ADT Sec. Servs., Inc., 989 So. 2d 1244, 1249 (Fla. 1st DCA 2008) (affirming summary judgment dismissing plaintiff-buyer’s fraud claim against seller, where buyer’s proffered expert report was insufficient and inadmissible); Dykes v. Quincy Tel. Co., 539 So. 2d 503, 504 (Fla. 1st DCA 1989); §§ 90.402, 90.403, 90.603, 90.604, 90.702, 90.802, Fla. Stat. (2023) (relevance, exclusion on prejudice or confusion, testimony with lack of personal knowledge is inadmissible, disqualification of witnesses, testimony by purported experts, hearsay is inadmissible).[4]

A FDUTPA plaintiff cannot establish actual damages solely through an purported expert’s perceived decrease in the value of a product sold, with no independent showing of harm or wear and tear on the product. In re Crown at 1019.

FDUTPA Limits on Causation

Under Florida law, a plaintiff cannot maintain a FDUTPA action where she cannot prove causation; i.e., not only that a defendant engaged in unfair or deceptive trade practices but also that those practices directly caused injury to the plaintiff-buyer. Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354, 1361 (S.D. Fla. 2012) (FDUPTA “causation must be direct, rather than remote or speculative.”); Chicken Unlimited, Inc. v. Bockover, 374 So. 2d 96, 97 (Fla. 2d DCA 1979) (“this [FDUTPA] statute makes it clear that a plaintiff seeking damages must show not only that a defendant engaged in unfair or deceptive trade practices but also that those practices caused injury to the plaintiff.”).

Under this causation element, even if a FDUTPA defendant’s “statements were indisputably misleading, if not false,” a plaintiff cannot prove FDUTPA causation if the evidence shows the plaintiff also “knew of the possible falsity of those statements [] which she later claimed were misrepresentations.” Bockover at 97.

Further, in the absence of a fiduciary relationship, mere nondisclosure of material facts in an arm’s length transaction is not actionable, unless some artifice or trick has been employed to prevent a buyer from making further inquiry. See Virgilio v. Ryland Group, Inc., 680 F.3d 1329, 1336 (11th Cir. 2012) (holding FDUTPA defendant had no duty to disclose land was next to bombing range).[5]

FDUTPA Limits on Deceptive Acts

Florida law requires a FDUTPA plaintiff to prove the defendant committed deceptive practices, by conducting business in a way “likely to mislead consumers acting reasonably in the circumstances, to the consumers’ detriment.” Angelo v. Parker, 275 So. 3d 752, 755 (Fla. 1st DCA 2019) (citing Kia, 985 So. 2d at 1140 (Fla. 3d DCA 2008)). A plaintiff must prove that a reasonably objective person in the same circumstances would have been deceived. Id.[6]

Florida law requires a plaintiff to prove the defendant committed unfair practices by conducting business that causes substantial injury to a consumer which the consumer could not have reasonably avoided. Id. A plaintiff must prove that a reasonably objective person in the same circumstances could not have reasonably avoided the actual damages. Id.

Florida law generally prohibits a buyer from suing a seller for representing that a contract price is a great deal or a great value—these negotiations, “puffing,” or statements of opinion are not actionable under Florida law. MDVIP, Inc. v. Beber, 222 So. 3d 555, 561 (Fla. 4th DCA 2017) (“exceptional” product not actionable); Addison v. Carballosa, 48 So. 3d 951, 955 (Fla. 3d DCA 2010) (easily discoverable with ordinary diligence not actionable); Wasser v. Sasoni, 652 So. 2d 411, 412 (Fla. 3d DCA 1995) (“building very good” and “excellent deal” non-actionable opinions).

Over and over again, Florida courts have held that these statements about the pricing and market value of a product as “exceptional,” a “great deal,” a “minimum rate,” and so on, are not actionable. Id.; Warren Technology, Inc. v. UL LLC, 962 F.3d 1324, 1328–29 (11th Cir. 2020); Dolphin LLC v. WCI Communities, Inc., 715 F.3d 1243, 1250 (11th Cir. 2013).

Likewise, “the mere existence of an overcharge does not establish a violation of FDUTPA.” Angelo at 756; see also HRCC, Ltd. v. Hard Rock Café Int’l (USA), Inc., 302 F. Supp. 3d at 1323. The existence of a difference between the price paid for a product by the retailer, and the price then charged to the retail buyer for that product (i.e. the mark-up), is not actionable. Id. Instead, a plaintiff must prove an overcharging retailer acted in a way that was unscrupulous, oppressive, unethical, or immoral. Id. There must be some defect in the product or some failure to deliver the product in the condition that it was contractually promised, not simply a buyer’s failure to make profit on the transaction. Id.

Lastly, under FDUTPA it is a complete defense if a retailer disseminates claims of a manufacturer in good faith, even if those claims violate FDUTPA:

However, damages, fees, or costs are not recoverable under [FDUTPA] against a retailer who has, in good faith, engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.

§ 501.211(2), Fla. Stat. (2021).

In sum, this article provided a quick primer on the elements of FDUTPA claims, and some general limitations for each element under Florida law. If you have questions about FDUTPA claims, deceptive and unfair business practices, and business disputes, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

---

[1] See also Macias v. HSBC of Fla., Inc., 694 So. 2d 88, 90 (Fla. 3d DCA 1997) (speculative losses not recoverable); In re Crown Auto Dealerships, Inc., 187 B.R. 1009, 1019 (Bankr. M.D. Fla. 1995) (“subjective feelings of disappointment are insufficient”); Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354, 1361 (S.D. Fla. 2012); Gibson v. Chase Home Fin., LLC, 2011 WL 6319401, at *6 (M.D. Fla. Dec. 16, 2011) (bank’s deceptive letters were not shown to cause actual damages).

[2] See also SMS Audio, LLC v. Belson, 2017 WL 11631378, at *4 (S.D. Fla. Apr. 25, 2017) (diminution in value not recoverable); Flexstake, Inc. v. DBI Servs., LLC, 2018 WL 6270972, at *3 (S.D. Fla. Nov. 30, 2018) (“proof of actual damages is necessary to sustain a FDUTPA claim,” which cannot include lost profit from a transaction); Sub-Zero, Inc. v. Schuster, 2018 WL 8369106, at *4 (S.D. Fla. Sept. 4, 2018) (lost profits are not actionable under FDUTPA); BPI Sports, LLC v. Labdoor, Inc., 2016 WL 739652, at *6 (S.D. Fla. Feb. 25, 2016) (holding FDUTPA claim failed where it was based on lost profit rather than actual damages); Ounjian v. Globoforce, Inc., 2022 SL 3223997, at *5 (N.D. Fla. July 18, 2022) (no FDUTPA consequential damages); In re Crown Auto Dealerships, Inc., 187 B.R. 1009, 1019 (Bankr. M.D. Fla. 1995) (rejecting attempt to prove actual damages by expert witness regarding perceived diminished value of used car).

[3] See also Vintage Motors of Sarasota, Inc. v. MAC Enters. of N. Car., LLC, 336 So. 3d 374, 378 (Fla. 2d DCA 2022) (must prove difference in condition of product contracted to delivered); Baptist Hosp., Inc. v. Baker, 84 So. 3d 1200, 1204 (Fla. 1st DCA 2012) (same); Smith v. 2001 S. Dixie Hwy., Inc., 872 So. 2d 992, 994 (Fla. 4th DCA 2004) (same); Coronacide, LLC v. Wellness Matrix Group, Inc., 2021 WL 4307488, at *9 (Sept. 22, 2021) (same); Dorestin v. Hollywood Imports, Inc., 45 So. 3d 819, 825 (Fla. 4th DCA 2010) (no claim upon outside of contract).

[4] See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993); Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995); Royal Caribbean Cruises, Ltd. v. Spearman, 320 So. 3d 276, 290 (Fla. 3d DCA 2021); Beckman v. State, 230 So. 3d 77, 88–89 (Fla. 3d DCA 2017) (holding doctor testimony inadmissible as expert opinions would not have assisted jury); Ramirez v. State, 810 So. 2d 836, 842 (Fla. 2001) (proffered expert testimony inadmissible, as scientific reliability was not established, nor probative value weighed against prejudice or confusion of issues).

[5] See also Spradling v. Nat’l City Mortg., 2009 WL 10713339, at *7 (M.D. Fla. May 4, 2009) (holding plaintiffs failed to allege an actionable nondisclosure where they could have learned the omitted information upon their own diligent inquiry); S.K.Y. Mgmt. LLC v. Greenshoe, Ltd., 2007 WL 9701121, at *4 (S.D. Fla. Mar. 11, 2007) (holding non-disclosure of material defects in vessel not actionable, as buyer had opportunity to conduct own investigation of the facts even though seller was in a position of superior knowledge).

[6] See also Zlotnick v. Premier Sales Group, Inc., 480 F.3d 1281, 1284–87 (11th Cir. 2007) (holding no FDUTPA deceptive act where vendor cancelled sale reservation agreement at one price and then offered to sell to same buyer at higher price).