FLORIDA BUSINESS LITIGATION: NON-CONSUMER LAWSUITS UNDER FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), § 501.201 et seq, Florida Statutes, allows a person to sue a business for unfair competition and deceptive or unconscionable business practices. Although the statute allows a consumer to sue a business for violations of FDUTPA, Florida appellate court decisions have also allowed some businesses to sue other businesses under FDUPTA based on consumer harm. This expansion of FDUTPA is important because it allows aggrieved parties to recover more than their damages. FDUTPA allows the Court to enter an injunction or award attorneys’ fees – types of relief that are sometimes unavailable with other causes of action. Peter Mavrick is a Miami business litigation attorney who has extensive experience with litigating claims under FDUTPA.

FDUTPA states that “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Fla. Stat. § 501.204(1). “An unfair practice ‘offends established public policy’ and … is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’” Stewart Agency, Inc. v. Arrigo Enterprises, Inc., 266 So. 3d 207 (Fla. 4th DCA 2019). “[D]eception occurs if there is a ‘representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.’” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773 (Fla. 2003). “In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney’s fees and court costs.” Fla. Stat. § 501.211(2).

Florida’s Fourth District Court of Appeal in Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 169 So. 3d 164 (Fla. 4th DCA 2015), held that FDUPTA is not limited to only consumer-plaintiffs. In Caribbean, a plaintiff-business sued because the Better Business Bureau (“BBB”) portrayed itself as an unbiased business rating service to the public, but in reality, BBB would improve the score of a business if the business became “accredited” – a process requiring significant payment to BBB. BBB claimed that the plaintiff could not make a FDUTPA claim because the alleged conduct was directed towards BBB’s customers, not plaintiff’s customers. The appellate court disagreed, finding that non-consumers could bring a FDUTPA claim as long as consumers were harmed as well, because FDUTPA had been amended to replace the word “consumers” with “persons” in § 501.211, Florida Statutes. The appellate court determined that this statutory wording change meant that FDUTPA claims could be brought by parties that were not consumers of the defendant’s goods or services.

“Consumer injury,” however, is still a critical requirement of a FDUPTA claim. Case law after the Caribbean Cruise Line decision has held that FDUTPA requires that both the non-consumer plaintiff and consumers must suffer independent harms by a defendant-business. “That an entity other than a consumer can bring a FDUTPA claim does not mean, however, that ‘[h]arm to consumers is not required’[…]. To the contrary Caribbean Cruise Line unequivocally instructs that a plaintiff must “prove that there was injury or detriment to consumers in order to satisfy all the elements of a FDUTPA claim [emphasis in original].” CEMEX Constr. Materials Florida, LLC v. Armstrong World Indus., Inc., 3:16-CV-186-J-34JRK, 2018 WL 905752 (M.D. Fla. Feb. 15, 2018).

In Stewart Agency, Inc. v. Arrigo Enterprises, Inc., 266 So. 3d 207 (Fla. 4th DCA 2019), the plaintiff sought to sue a competitor under FDUTPA, claiming that it had been selling defective cars to the public. This, according to the complaint, harmed the plaintiff through market forces. The Court disagreed, in part because the plaintiff could not acquire any evidence to show that a consumer had been misled or otherwise injured. The appellate court explained that, “[w]hile an entity does not have to be a consumer to bring a FDUTPA claim, it still must prove the elements of the claim, including an injury to a consumer.”

In Sandshaker Lounge & Package Store LLC v. RKR Beverage Inc, 3:17CV00686-MCR/CJK, 2018 WL 7351689 (N.D. Fla. Sept. 27, 2018), the plaintiff claimed that the defendant was portraying itself as the plaintiff in order take advantage of the plaintiff’s goodwill in the community. Part of that claim was a count under FDUTPA, which asserted that consumers were misled by defendant’s imitation. The court found that it was not enough that consumers were confused. Consumers must actually be injured by the imitation. The court therefore dismissed the FDUTPA count. However, the plaintiff asked the court to reconsider. The plaintiff claimed that consumers were harmed because consumers would patronize the defendant’s establishment expecting to purchase plaintiff’s products or use plaintiff’s coupons, causing harm to the consumer because they were not able to take advantage of plaintiff’s promotions at defendant’s establishment. The court agreed that this was sufficient consumer harm, and permitted the FDUTPA count to go forward. See also EMP Indus., Inc. v. KECO Inc., 8:17-CV-869-T-17JSS, 2017 WL 10899974 (M.D. Fla. Nov. 2, 2017) (finding that without consumer harm, a FDUTPA claim cannot proceed based only on claims that a defendant stole images and other materials).

FDUTPA allows businesses to sue for an injunction, damages, and attorneys’ fees against a competing business if the competing business is using unfair, unconscionable, or deceptive trade practices that harms both the aggrieved businesses and consumers.

Peter Mavrick is a Miami business litigation lawyer. This article does not serve as a substitute for legal advice tailored to a particular situation.