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