Florida Deceptive and Unfair Trade Practices Act (FDUTPA)

Florida Deceptive and Unfair Trade Practices Act (FDUPTA)

What is FDUPTA?

In Florida, unfair and deceptive trade practices are those practices that are considered unethical, unscrupulous, and dishonest. Further, these practices seek to deceive or take advantage of consumers. These practices include false advertising, a misleading sales pitch, or failing to disclose important information about a product or service. The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) prohibits such practices.

FDUTPA defines unfair trade practices as those that “cause substantial injury to consumers or other businesses and cannot be reasonably avoided by the consumer or the other business.” FDUTPA is also a “gap filler” to questions of federal law because it provides consumers with a private right of action to sue for unfair or deceptive trade practices. A consumer can be anyone from a child to a business, firm, association, partnership, trust, estate, or any group or commercial entity.

Here are a few more examples of unfair and deceptive trade practices prohibited in Florida under the FDUTPA.

• False advertising: Making false or misleading statements in advertising or promotional materials about the product or service, including false claims about the benefits or performance of a product, using deceptive photos or graphics, or failing to disclose important information.
• Bait-and-switch: Advertising a product or service at a low price to get customers in the door but then attempting to sell them a more expensive product or service.
• Pyramid schemes: A type of multi-level marketing scheme where participants make money primarily by recruiting other participants rather than selling products or services.
• Warranty Misrepresentation: Misrepresenting the terms or coverage of a warranty for a product or service or failing to honor the terms of a warranty.

Need help with an FDUPTA claim? Schedule your consultation today with a top bet the company litigation attorney.

What legal issues typically arise related to FDUPTA?

The following disputes are among the most common to FDUPTA:

• Deception: Florida courts have adopted the FTC’s standard for deception. Any material representation, omission, or practice that misleads or is likely to mislead a consumer acting reasonably under the circumstances. In other words, to determine what deception is the standard, would a reasonable consumer be misled? Parties must wrestle with this precise standard when litigating a claim under FDUPTA.
• Standing: Florida courts have not always been consistent when deciding who may bring a claim under FDUPTA despite the otherwise broad statutory definition of consumer. Some courts have decided FDUPTA only includes people who were deceived when buying or selling goods or services. On the other hand, some courts allowed FDUPTA claims when any person was injured by a deceptive or unfair practice, regardless of whether goods or services were bought or sold.
• Breach of contract: Sometimes, a breach of contract claim may convert into an FDUPTA claim if the breach itself is an unfair or deceptive trade practice.
• Consumer fraud claims: Consumers who have been deceived or taken advantage of by a business may be able to file a consumer fraud claim under FDUTPA, including claims for damages, injunctions to stop unfair or deceptive practices, and attorney’s fees.
• Class action lawsuits: When a business engages in widespread unfair or deceptive practices that affect many consumers, the plaintiff could file a class action on behalf of all affected consumers, allowing consumers to pool their resources to pursue legal action against the business.
• Administrative actions: The Florida Attorney General’s Office can bring administrative actions against businesses that engage in unfair or deceptive practices, such as fines, cease and desist orders, and other penalties.
• Regulatory issues: Businesses that engage in unfair or deceptive practices may face regulatory matters with state and federal regulatory agencies. Regulatory agencies may impose fines, penalties, and other consequences depending on the circumstances.
• Defamation claims: If a business engages in false or misleading advertising that harms the reputation of a competitor, the competitor may be able to bring a defamation claim.
• Suing an individual: To bring an FDUPTA claim against an individual instead of a corporation, the plaintiff must show that the individual was a direct participant in the dealings. In addition, the individual must know of the violations to be a direct participant under Florida law.

What is bet-the-company litigation, and how does it apply to FDUPTA?

When a company faces legal action that seriously threatens its future, its survival often depends on winning a single, cost-effective verdict. By necessity, such a company needs counsel experienced in bet-the-company litigation. Bet-the-company cases are often highly confidential, involve multiple parties, and entail complex discovery. High-stakes circumstances like these require risk-reward analysis and comprehensive day-to-day strategizing well above the requirements of traditional business litigation because the company’s existence depends on victory.

While the legal requirements to prove or defend against a case under FDUPTA remain the same, the issues are complex and implicate much more money. For example, mergers and acquisitions, accounting irregularities, changing regulatory interpretations, and antitrust matters may all implicate issues related to FDUPTA.

What are relevant laws related to FDUPTA claims in Florida?

• Florida Statutes Chapter 501: The entirety of the FDUPTA composes this Chapter.
• Florida Statutes Section 203: Sets out the relevant definitions for terms in consumer protection law. Consult this provision of Florida law to determine who or what qualifies as a consumer or what might be trade or commerce for purposes of FDUPTA
• Federal Trade Commission Act, 15 USC § 45: FDUPTA is considered a state law complement to the Federal Trade Commission or “FTC Act.” FDUPTA is sometimes called the “Little FTC Act” and closely mirrors the federal definitions of unfair or deceptive acts or practices.
• Florida Statutes Section 2105: This provision of Florida law outlines attorneys’ fees for litigation related to FDUPTA.

It’s important to note that much of Florida law related to an FDTUPA claim is also common law, emanating from the decisions of courts in previous cases. For example, regarding the standard of deception, standing, and other related issues not covered by the statute, Florida courts will often decide the law for these particular issues.

What is required to prove a case under FDUPTA in Florida?

To prove a case of unfair and deceptive trade practices in Florida, a plaintiff must generally show the following elements:

• A deceptive act or unfair practice: The plaintiff must demonstrate that the defendant engaged in a deceptive or unfair act or practice in the conduct of trade or commerce;
• Causation: The plaintiff must show that the deceptive or unfair act caused the plaintiff to suffer some type of harm. This harm can be economic, such as a loss of money or property, or non-economic, such as emotional distress; and
• Actual damages: The plaintiff must prove that they suffered actual damages due to the defendant’s deceptive or unfair act, such as out-of-pocket expenses, lost profits, and other economic losses.

It is important to note that the specific requirements for proving a case of unfair and deceptive trade practices in Florida vary depending on the facts of the case. In some cases, the plaintiff may need to show that the defendant acted with intent or knowledge of their actions’ deceptive or unfair nature. For example, the plaintiff may need to prove that the defendant knew their advertising was false or misleading.

In other cases, the plaintiff may need to show that the defendant’s conduct was unconscionable, meaning the defendant’s actions were so unfair or one-sided that they shocked the conscience.

When a set of facts is appropriate to meet the requirements of FDUPTA, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path forward to seek appropriate remedies, such as:

• Actual Damages: Generally, this is limited to the difference between the service or good’s price under the contract or sale and the market value of the good or service.
• Attorneys’ Fees & Court Costs

To see what actions may be available for your unique situation, please contact our office to set up your initial consultation.

What are common defenses to FDUPTA in Florida?

The primary defenses to FDUPTA in Florida include the following:

• Deterrent: A sales contract with a valid arbitration clause and class action waiver can significantly deter individual and class action FDUPTA claims, so long as the parties correctly drafted the document.
• Lack of intent: If the defendant can show that they did not intend to engage in unfair or deceptive practices, this can be a defense to a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).
• No actual damages: If the plaintiff cannot show that they suffered damages due to the defendant’s conduct, this can be a defense to a claim under FDUTPA. For example, if the plaintiff was not actually deceived or did not suffer any economic harm, they may not be able to bring a successful claim.
• Truthful advertising: If the defendant can show that their advertising was genuine and not deceptive, this can be a defense to a claim under FDUTPA. However, even truthful advertising can still be considered unfair if misleading or likely to deceive consumers.
• Good faith: If the defendant acted in good faith and believed their conduct was not unfair or deceptive, this can be a defense to a claim under FDUTPA. However, good faith alone may not be enough to avoid liability if the defendant’s conduct is deceptive or unfair.
• Preemption: In some cases, federal laws or regulations may preempt state laws related to unfair and deceptive trade practices. If the defendant can show that their conduct complied with applicable federal laws or regulations, this can be a defense to a claim under FDUTPA.

The availability and success of these defenses will depend on each case’s specific facts and circumstances. One core strategy for defending against an FDUPTA claim is to disprove elements of the plaintiff’s case. For example, by demonstrating a lack of intent or no actual damages, a defendant can show that the plaintiff was not deceived or did not suffer any economic harm and make the plaintiff’s FDUPTA claim a failure.

To see what defenses may be available for your unique situation, please contact our office to set up your initial consultation.

Have more questions about an FDUPTA-related situation?

Crucially, this overview of FDUPTA does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain a tireless advocate every step of the way. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to set up a consultation.