MIAMI BUSINESS LITIGATION: LAWSUITS ASSERTING DECEPTIVE AND UNFAIR BUSINESS PRACTICES

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) provides businesses with a civil cause of action against unscrupulous business practices. While FDUTPA has limitations, it is applicable in a wide variety of circumstances when a plaintiff can show that a defendant engaged in unfair or deceptive business practices against a consumer. Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

FDUTPA, § 501.201, Florida Statutes et seq., is a consumer protection statute which permits consumers to bring civil suits when they are wronged by a company’s unfair or deceptive practices. While most statutes permit a plaintiff to bring a claim only if that plaintiff was the injured party, FDUTPA permits a plaintiff in business litigation to bring a FDUTPA claim against a defendant company when the defendant company injured customers. For a plaintiff company to have standing under FDUTPA, it must have been injured by the defendant company’s conduct in addition to consumers.

A non-consumer company’s standing to bring FDUTPA claims against another company was most prominently recognized in Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 169 So. 3d 164 (Fla. 4th DCA 2015). There, the plaintiff brought suit against the consumer information company, the Better Business Bureau, on allegations that it based its ratings on payments for “accreditation” and kept this information from its customers. Caribbean held that changes made to the statute permitted non-consumers to bring claims. Since Caribbean, companies have used FDUTPA to combat unscrupulous business tactics of competitors and other companies whose conduct was harmful to both consumers and other companies. This was discussed in greater detail in a previous article.

FDUTPA remains a versatile and effective way in business litigation to bring a claim concerning another company’s wrongful conduct when a plaintiff business does not otherwise have way to bring a claim under another statute. It may be brought concerning systemic practices or a single transaction. PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773 (Fla. 2003)(“when considered with the other provisions of the FDUTPA, it is clear that the prohibition is broad enough to protect against instances of unfair or deceptive conduct as to a single party or under a single transaction or contract”).

As with any civil cause of action, it may also be misused by overzealous plaintiffs. There are limitations to a non-consumer’s capability to bring FDUTPA claims. Primarily, a plaintiff suing under FDUTPA must show that there was an action that qualifies as “deceptive” or “unfair.” A deceptive act 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.” Millennium Communications & Fulfillment, Inc. v. Office of Attorney Gen., Dept. of Legal Affairs, State of Fla., 761 So. 2d 1256 (Fla. 3d DCA 2000). “An unfair practice is ‘one that ‘offends established public policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773 (Fla. 2003). The plaintiff bringing such a claim must provide evidence that the consumer was actually injured without relying on speculation. Stewart Agency, Inc. v. Arrigo Enterprises, Inc., 266 So. 3d 207 (Fla. 4th DCA 2019) (holding that a consumer’s harm must not be speculative in bringing equitable claims under FDUTPA).

In the recent case, South Broward Hospital District v. ELAP Services, LLC, 20-CV-61007, 2020 WL 7074645 (S.D. Fla. Dec. 3, 2020), the court affirmed FDUTPA’s versatility. The South Broward business litigation concerned a plaintiff healthcare provider that sued the administrator of a self-pay ERISA plan. The plaintiff accused the defendant of making it appear as if its plan participants were participants in a contractual obligation which would require the plan to pay the contracted-for rates. Instead, the plan participants were not part of those agreements and the plan had no contractual obligation to make payments. The plaintiff claimed that the defendant’s conduct tricked them into performing medical services that they otherwise would not have performed had it known that the plan’s coverage was not as comprehensive as it appeared to be.

The South Broward defendant claimed that it was not involved in commerce concerning the conduct alleged because the dispute concerned the plaintiff’s services being provided to consumers. Defendant cited to Williams v. Nationwide Credit, Inc., 890 F. Supp. 2d 1319 (S.D. Fla. 2012), a case where a defendant was not liable under FDUTPA because the conduct was at issue was the collection of a debt, rather than providing goods or services to customers. South Broward determined that FDUTPA claims could proceed “because ‘billing practices are considered part of ‘trade or commerce,’ […] the claims adjudication process between Defendants and facilities like Memorial amounts to “trade or commerce’ between the parties.” South Broward Hospital District v. ELAP Sevrices, LLC, 20-CV-61007, 2020 WL 7074645 (S.D. Fla. Dec. 3, 2020).

Peter Mavrick is a Miami-Dade business litigation attorney who also practices business litigation in Fort Lauderdale and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.