What is the Florida Deceptive and Unfair Trade Practices Act?
The Florida Deceptive and Unfair Trade Practices Act (the “FDUTPA”) was passed by the Florida Legislature in 1973 and has been amended several times since. The law was intended to protect consumers from suppliers who commit deceptive and unfair trade practices. The FDUTPA does this by making it unlawful to engage in “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce ….” Fla. Stat. § 501.204.
The Florida Legislature identified three goals in passing the FDUTPA:
(1) To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices.
(2) 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.
(3) To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.
Fla. Stat. § 501.202.
The FDUTPA was intended to complement the Federal Trade Commission Act, 15 U.S.C. § 45 (the “FTC Act”). For this reason, the FDUTPA is sometimes referred to as the “Little FTC Act.” A major difference between the two laws is that the FTC Act does not authorize a private cause of action, whereas the FDUTPA permits private citizens to file a lawsuit for violations of the law.
The private remedies under FDUTPA entitle individuals to bring a lawsuit:
- to recover actual damages, plus attorney’s fees and court costs;
- to obtain a declaratory judgment that an act or practice violates the FDUPTA; and
- to enjoin a person who has violated, is violating, or is otherwise likely to violate the FDUPTA.
Fla. Stat. § 501.211.
Who is Protected by the FDUTPA?
The FDUTPA broadly defines the term “consumer” to include “individuals, children, business, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, any commercial entity, or any other group or combination.” Fla. Stat. § 501.203(7). As explained in Davis v. Powertel, Inc., 776 So. 2d 971, 975 (Fla. 1st DCA 2000), the FDUTPA “is designed to protect not only the rights of litigants, but also the rights of the consuming public at large.”
While the FDUTPA defines “consumer” broadly, the consumer must suffer an injury while participating in either “trade or commerce.” The FDUTPA defines “trade or commerce” to include advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. Fla. Stat. § 501.203(8).
As long as a consumer transaction occurs, an individual is afforded protection under the FDUTPA. Conversely, in In re Maxxim Medical Group, Inc., 434 B.R. 660, 693 (Bankr. M.D. Fla. 2010), the court stated that the “FDUTPA has no application to entities complaining of tortious conduct which is not the result of a consumer transaction.”
What are the Elements of a Claim Under the FDUPTA?
“[A] consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006).
- The Consumer was Subjected to a Deceptive or Unfair Practice
A deceptive practice is one that is “likely to mislead” consumers. Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. 1st 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.” Samuels v. King Motor Co. of Ft. Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001) (quotation omitted).
- The Deceptive or Unfair Practice Caused the Consumer’s Damages
To prove the causation element of a FDUTPA claim, “a plaintiff need not prove reliance on the allegedly false statement … but rather a plaintiff must simply prove that an objectively reasonable person would have been deceived.” Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir. 2011). Still, causation is a necessary element of the FDUTPA claim, and “causation must be direct, rather than remote or speculative.” Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354, 1361 (S.D. Fla. 2012).
- The Consumer Suffered “Actual” Damages
The standard for determining the “actual” damages recoverable under FDUTPA has been defined by the courts as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.” Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178, 180 (Fla. 3d DCA 2010) (quotation omitted). “This is because ‘[t]he act is intended to protect a consumer from unfair or deceptive acts or practices which diminish the value or worth of the goods or services purchased by the consumer.’” Id.
In other words, the FDUPTA allows recovery for “actual” damages but does not allow for recovery of consequential or special damages. An example of consequential damages would be the costs to repair a building resulting from a deficient inspection for termites and an example of special damages would be pain and suffering. This makes sense because consumers buy products, so their “actual damage” is the money they spent on the product.
However, attorney fees and costs are recoverable under the FDUTPA. In short, the FDUPTA is an additional remedy aimed toward making consumers whole for losses caused by fraudulent consumer practices. More often than not, a plaintiff with a FDUTPA claim would have separate causes of action, such as break of contract or fraud, that would enable recovery of either consequential or special damages.
Conclusion
The FDUTPA had long been used by consumers to “get their money back” from unscrupulous sellers. The FDUTPA protects consumers from unfair, deceptive, and unconscionable acts or practices and provides consumers with private remedies for violations of its provisions. By enacting the FDUTPA, the legislature clearly intended to establish a new cause of action for the benefit and protection of the consuming public.