FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT – BRINGING TRUTH AND ACCOUNTABILITY TO THE MARKETP

Posted about 2 years ago. Applies to Florida, 2 helpful votes

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Buyer beware; this maxim encourages personal responsibility and also gives free reign for the marketplace to embody chaos. The Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Florida Statute §501.201 et seq., is an attempt to enforce a certain minimum of honesty and fair dealing in commercial dealings, and harmonize the legislation with similar federal statutes. F.S. §501.202(2)-(3). The statute expressly declares unconscionable acts and acts described in the short title to be unlawful under Florida Statute §501.204(1). The terms themselves are vague; while F.S. §501.203 provides some guidance, the potential claimant is given definitions that simply repeat the short title or direct the claimant to 15 U.S.C. § 41, et seq. and local ordinances that generally use the same vague terminology. A claimant would be lucky to find a specific ordinance or related statute, the language of which is clearly being violated. An example of this would be Florida Statute §681.10, et seq., colloquially the “Lemon Law," relating to the lease or sale of defective motor vehicles that cross references with FDUTPA. Barring the application of a law that does not have exacting guidelines, the claimant will need to rely on a facts and circumstances examination unique to each case’s fact pattern. An obvious advantage to utilizing FDUTPA is that F.S. §501.213 expressly provides that remedies from FDUTPA are in addition to whatever remedy might be available if the claimed conduct violates another law or ordinance. An award of damages is an additional form of recovery beyond the declaratory judgments and injunctions available under F.S. §501.211(1). Of course, if the actual damages sustained under a violation of FDUTPA and another law, the damages awarded will still be limited to the singular amount, and not double for the two violations. Actual damages within the statute have previously been ruled as the amount of the market value as an object or service was defined by contract less the market value as delivered or performed. Collins v. DaimlerChrysler Corp., 894 So.2d 988 (Fla. 5th DCA 2004). Moreover, and more importantly to counsel, F.S. §501.211(2) allows for the recovery of reasonable attorney’s fees and costs. Should the plaintiff so desire, FDUTPA actions have the potential to be brought as class actions. Fonte v. AT&T Wireless Services, Inc., 903 So.2d 1019 (Fla. 4th DCA 2005). Plaintiff’s counsel would be well advised to avoid casually including a claim for violating the FDUTPA when contemplating litigation. First, the plaintiff should make sure that the defendant is not amongst a lengthy list of those whose actions are excluded from suit under FDUTPA including a good faith retailer unknowingly violating the act on wholesaler instructions and all those covered under F.S. §501.212. Real estate agents and brokers are regulated under chapter 475. The plaintiff must enumerate facts sufficient to show actual aggrievement. Huan v. Don Mealy Imports, Inc., 285 F.Supp. 2d 1297 (M.D. Fla. 2003). Mere expression of disappointment is not enough. One can find that even though there is an underlying action, such as for fraud, the FDUTPA claim fails. Rogers v. Cisco Sys. Inc., 268 F.Supp.2d 1305 (N.D. Fla. 2003). Additionally, as provided in F.S. §501.211(3), defending counsel may file a motion alleging the FDUTPA complaint to be frivolous or harassment that if granted will require the plaintiff to post a bond equal to a court determined amount of defendant’s expected fees and costs. This interim motion does not consider another section of the statute, F.S. §501.2105, where attorney’s fee and costs may be awarded to the winner, including similar expenses incurred after all appeals are exhausted. A person or entity may find itself defending against actions brought by the state in addition to those actions from the private sector under chapter 501. The Department of Legal Affairs acts as an enforcing authority with the power to bring an action as provided in F.S. §501.205 - §501.2101. The state may bring an investigation after being alerted by a member of the private sector or through its own investigative efforts. The state may file subpoenas to further investigations that may only be disputed to set aside or modify within five days of receiving the subpoena; failure to act as directed by the subpoena can cause the impositions of fines up to $5,000 plus fees and costs. Here, the state is restricted by a statute of limitations running four years from the date of occurrence or two years from the date of last payment, whichever is later. A representative of the state does not actually need for the conclusion of a trial to impose upon those suspected of violating the FDUTPA. The state can arrange for a hearing to occur at least 30 days after filing a cease and desist order. The order becomes effective 10 days after administrative actions conclude or, if appealed, upon the issuance of a final order by the court. The cease and desist order does not strip others of their rights to file suits under the FDUTPA for the same violations. Those who violate the cease and desist order face penalties amounting to no more than $5,000 per violation. The state has much the same method and requirements for bringing an action as a member of the private sector. However, one benefit for the state is that hearsay with circumstantial guarantees of trustworthiness can still be used as evidence at trial provided the statement is offered as a material fact, is highly probative, and the interests of justice are best served. This beneficial provision is limited by an advance disclosure requirement. The same potential relief is available to the state as an individual or other entity, declaratory judgments, injunctions, and actual damages. The award may include an award for costs and fees as if the state were a private plaintiff. Money awarded in this fashion goes into the Legal Affairs Revolving Trust Fund if brought by the Department of Legal Affairs, otherwise if brought by the state attorney, the money is deposited in the Consumer Frauds Trust Fund. Imposition of civil penalties is another possible outcome of trial. The penalty is limited to $10,000 per violation, unless the violation was committed against the handicapped or person(s) over 59 years old in which case the maximum penalty increases to $15,000 per violation.

Additional Resources

Key Cases - FDUTPA 1. PNR, Inc. v. Beacon Prop. Mgmt., 842 So. 2d 773 (Fla. 2003). The Florida Deceptive and Unfair Trade Practices Act was applicable to a private cause of action arising from unfair or deceptive acts by a building owner and property management company against a tenant arising from the parties' lease. 2. Collins v. DaimlerChrysler Corp., 894 So.2d 988 (Fla. 5th DCA 2004).The trial court held that the consumer's second amended complaint failed to demonstrate that she had suffered a loss compensable under the Act. On appeal, the manufacturer alleged that dismissal was proper because the consumer did not incur any out of pocket damages on account of the alleged defects in her car's seat belt buckles, and, as such, the complaint failed to state a cause of action. The appeals court disagreed, as there was no requirement in the Act that a defect manifest itself by failing to operate in an emergency or by causing injury. Under the facts stated herein, the consumer alleged more than a possible injury. She claimed an actual injury in the form of insufficient product value. In other words, she contended that she did not get what she bargained for. Whether her allegations had merit remained to be decided. As to damages, the case turned on a relatively simple question: whether a car with defective seat belt buckles was worth less than a car with operational seat belt buckles? Thus, the consumer was entitled to go forward with her case. 3. Fonte v. AT&T Wireless Servs., 903 So. 2d 1019 (Fla. 4th DCA 2005). Arbitration clause in wireless services provider's contract that barred award of attorney's fees was void as it defeated a remedial purpose of the FDUTPA, but void clause was severable, and contract's bar on class action suits was enforceable as it did not defeat any remedial purposes of FDUTPA. 4. Presidential Leasing, Inc. v. Krout, 896 So. 2d 938 (Fla. 5th DCA 2005). Trial court properly declined to enforce an arbitration scheme contained in a purchase order for a used vehicle as the scheme contravened the prevailing party attorney's fee provisions of the Florida Deceptive and Unfair Trade Practices Act under Fla. Stat. '' 501.211 and 501.2105. 5. Beacon Prop. Mgmt. v. PNR, Inc., 890 So. 2d 274 (Fla. 4th DCA. 2004). Jury verdict in favor of commercial lessee on statutory deceptive practices claim was proper; lessee was a consumer of the leasing services a management company provided and the company's actions regarding maintenance were deceptive and unfair. 6. Huan v. Don Mealy Imports, Inc., 285 F.Supp. 2d 1297 (M.D. Fla. 2003). Because the buyer did not sufficiently allege actual damages, he failed to state a claim as to that matter. Next, because TILA's statutory damages provision did not provide for statutory damages for a failure to itemize in accordance with ' 1638(a)(2)(B), the court accordingly dismissed that matter. The buyer, inter alia, also failed to state a claim for violation of the itemization requirements of ' 1638(a)(2)(B)(iii) of TILA and 12 C.F.R. ' 226.18(c)(1)(iii). Overall, all federal questions were dismissed or decided on summary judgment, and the court declined to exercise supplemental jurisdiction over remaining state law claims. 7. Rogers v. Cisco Sys. Inc., 268 F.Supp. 2d 1305 (N.D. Fla. 2003). Plaintiffs alleged that defendants fraudulently misrepresented the corporation's earnings in such a manner that caused plaintiffs to retain the stock after the value of the stock suddenly collapsed upon disclosure of the allegedly fraudulent practices. The court granted the motion to dismiss the fraud and negligent misrepresentation counts with leave for plaintiffs to amend their complaint to plead reliance with more specificity. While plaintiffs sufficiently pled fraud to satisfy Fed. R. Civ. P. 9(b), the court held that plaintiffs were required to specifically allege how many shares they would have sold and when they would have sold them. The court granted the motion to dismiss the FDUTPA count with prejudice. Because Fla. Stat. '501.204(2) specifically instructed that great weight should be given to the interpretations of ' 5 of the FTC Act, the court concluded that the Supreme Court of Florida would hold that the FDUTPA did not apply to "holding claims" arising from the retention of securities. 8. Office of the AG, Dep't of Legal Affairs v. Wyndham Int'l, 869 So. 2d 592 (Fla. 1st DCA 2004). Florida courts had personal jurisdiction over a senior vice-president and a vice-president where they initiated and implemented a plan to charge an energy surcharge in a corporation's Florida hotels. The corporate shield doctrine was inapplicable was inapplicable to bar a FDUTPA claim against the foreign corporation=s officers. 9. America Online, Inc. v. Pasieka, 870 So. 2d 170 (Fla. 1st DCA 2004). The ISP challenged the judgment entered. In seeking dismissal, it alleged that a forum selection clause in its contract required that the instant lawsuit be brought in Virginia. However, the complaint contained allegations detailing the consumer's difficulty in cancelling such services, and the ISP's continued billing for the services after cancellation. In addition, the complaint described methods employed by the ISP with regard to subscription efforts and customer retention procedures, with particular allegations as to deceptive and unfair acts or practices. Various other courts had declined to enforce this same forum selection clause in these circumstances, involving class action lawsuits under consumer protection statutes where a similar action and comparable remedy could not be pursued in the foreign state. The purpose and effectiveness of the Florida Deceptive and Unfair Trade Practices Act and the Florida Free Gift Advertising Law would thus be seriously undermined if the claims herein were required to be brought in Virginia. The trial court thus correctly denied the motion to dismiss. 10. Philip Morris USA Inc. v. Hines, 883 So. 2d 292 (Fla. 4th DCA 2003).Class certification was improperly granted to consumers of "light" cigarettes in suit against a tobacco company; an individual's smoking behavior would be relevant, and common questions of law and fact would not predominate over individual issues. 11. Fendrich v. RBF, L.L.C., 842 So. 2d 1076 (Fla. 4th DCA 2003). Prospective home buyer stated a cause of action against a real estate developer under the Florida Deceptive and Unfair Trade Practices Act, as the reservation form the developer used was likely to mislead.

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