Litigation of Deceptive Trade Practices and Unfair Competition

The unfair competition and deceptive practices litigation attorneys at the Mavrick Law Firm have extensive experience with claims for unfair competition and deceptive practices.

The Mavrick Law Firm listens carefully to the client to determine what is needed to properly represent the client’s interests. Mavrick Law Firm reviews the critical case documents in a timely manner. Florida law provides legal remedies for certain deceptive or unfair acts under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), § 501.201 et seq., Fla. Stat. FDUTPA is intended 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. In Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006), Florida’s Second District Court of Appeal interpreted FDUTPA as follows:

A deceptive practice is one that is likely to mislead consumers. An unfair practice is one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers… Thus a…claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. FDUTPA allows for aggrieved persons to recover damages, declaratory relief, or an injunction if they were harmed by deceptive or unfair acts.

Although FDUTPA is mainly a consumer protection statute, it should be noted that many FDUPTA unfair competition lawsuits are brought by businesses against competitors in the same industry. This is because the Florida legislature amended FDUTPA in 2001 to change the word “consumer” to “person.” That amendment had the effect of conferring standing to businesses that wanted to initiate litigation due to unfair competitive conduct under FDUTPA. The unfair competition and deceptive practices litigation attorneys at the Mavrick Law Firm have successfully defended businesses against FDUTPA claims brought by both consumers and competing businesses. If you or your business is currently involved in unfair competition litigation in Florida, the Mavrick Law Firm can help.

FDUTPA generally prohibits unlawful acts but does not clearly delineate which particular acts are unlawful. “Courts have defined an ‘unfair’ practice as one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006). Courts have defined a deceptive practice as “one that is ‘likely to mislead” consumers. Davis v. Powertel, Inc., 776 So. 2d 971 (Fla. 1st DCA 2000).

FDUTPA provides that a violation of another law which was intended to bar the same sort of conduct that FDUTPA protects against is a per se violation of FDUTPA. However, not every violation of the law qualifies. “A defendant per se violates FDUTPA in one of two ways: (1) if the law, statute, rule, regulation, or ordinance ‘expressly constitutes a violation of FDUTPA’ or (2) if the law, statute, rule, regulation, or ordinance ‘proscribes unconscionable, deceptive, or unfair acts or practices and therefore operates as an implied FDUTPA predicate.’” STEVEN MICHAEL COX, individually & on behalf of those similarly situated, Plaintiff, v. PORSCHE FINANCIAL SERVICES, INC., Defendant. , 16-23409-CIV, 2020 WL 837167 (S.D. Fla. Feb. 19, 2020); see § 501.203(c), Florida Statutes.

A law need not explicitly state that it proscribes “unfair” or “deceptive” conduct as long as the law proscribes conduct which qualifies as unfair or deceptive. State Farm Mut. Auto. Ins. Co. v. Performance Orthapaedics & Neurosurgery, LLC , 315 F. Supp. 3d 1291 (S.D. Fla. 2018) (violations of the Florida Health Care Clinic Act and the Florida Anti-Rebate Statute could serve as statutory predicates for per se FDUTPA violations where the statutes proscribed the conduct that FDUTPA was designed to protect against even though they did not explicitly reference FDUTPA or use the terms “unfair or deceptive”); Trotta v. Lighthouse Point Land Co., 551 F. Supp. 2d 1359 (S.D. Fla. 2008) rev'd on other grounds, 319 F. App'x 803 (11th Cir. 2009) (violation of Interstate Land Sales Full Disclosure Act is a per se violation of FDUTPA where provisions of the law expressly prohibited certain actions even though the terms “unfair or deceptive trade practices” were not used).

In Webber v. Bactes Imaging Sols., Inc., 45 Fla. L. Weekly D125 (Fla. 2d DCA 2020), patients sued a medical imaging company under FDUTPA because of discriminatory pricing based upon whether the person requesting medical records was the patient or the patient’s lawyer. The company charged 25 cents per page for medical records requested by the patient and $1.00 per page if requested by the patients’ attorney. The patients contended that the company violated Florida Administrative Code Rule 64B8-10.003 (2) (the “Rule”), which requires that patients be charged no more than 25 cents per page for each page after the 25th page.

Weber found that the medical imaging company’s violation of the Rule was a violation of FDUTPA, but not because the Rule regulated “unfair” or “deceptive” conduct. Weber declined to determine whether a violation of the Rule was a per se violation of FDUTPA (though Weber acknowledged there were good arguments on either side that it was a per se violation). Weber instead held that it was an unfair practice and offensive to public policy to require a patient jump over an additional hurdle to obtain his or her own medical records, when the patient already signed a release for the records to be released to her lawyer. “An unfair practice is ‘one that “offends established public policy” and one that is “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”’” Webber v. Bactes Imaging Sols., Inc. supra. Weber was decided on relatively narrow grounds, but the decision opens the possibility that litigants may claim that violations of law qualify as violations of FDUTPA, even that law does not proscribe unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.

For over 27 years, Peter Mavrick has successfully represented clients in unfair competition and deceptive practices litigation and has substantial trial and arbitration experience, obtaining favorable jury trial, bench trial, and arbitration verdicts.