DO YOU HAVE A FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT CLAIM

In previous articles, I discussed Florida’s Deceptive and Unfair Trade Practices Act referred to as “FDUTPA”…but, it has been awhile.  (For more information on FDUTPA, check here and here.)  Now is as good of a time as any to discuss it again because FDUTPA provides a private cause of action and, perhaps, there may be a consideration as to whether such claim can be (or is) properly asserted in the context of your circumstances.

FDUTPA is a statutory scheme designed, “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.”  Fla. Stat. s. 501.201(2).   In doing so, FDUTPA authorizes three avenues of legal recourse against an offending party:  “(1) declaratory relief; (2) injunctive relief; and (3) [monetary] damages.”   Webber v. Bactes Imaging Solutions, Inc., 45 Fla. L. Weekly D125a (Fla. 2d DCA 2020);Fla. Stat. s. 501.211.

An unfair practice is ‘one that “offends established public policy” and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’”  Webber, supra, (citation omitted).

A deceptive practice is one that is ‘likely to mislead’ consumers.” Webber, supra, n.6 (citation omitted).

By way of example, even though this is not a construction dispute, in Webber, the plaintiff pursued a FDUTPA claim seeking declaratory relief, injunctive relief, and damages — the three avenues of relief the statute provides.  The plaintiff claimed that the defendant overcharged for copies of medical records when the request for records was made by a patient’s lawyer versus the patient directly.  The defendant charged for copies $1 per page after the first 25 pages when the request for medical records was made by the patient’s lawyer.  The plaintiff claimed this violated law that set the maximum rate at $.25 per page for patients who request such records.  The defendant countered that it was able to charge higher because the request was made by a lawyer, an “other entity,”  instead of the patient directly.  The trial court found no FDUTPA violation occurred.   The Second District Court of Appeal reversed finding differently:

We conclude that [defendant’s] conduct in charging the “other entities” rate when a lawyer submits a request for copies of medical records on behalf of his or her client, the patient, is an unfair act or practice…. The only way the patient — who is being represented by legal counsel — can obtain his or her records is to either pay the “other entities” rate merely because the medical records request was submitted by his or her lawyer or for the patient to submit a separate medical records request directly to the practitioner. But [defendant] has already been instructed by the trial court that its policy of charging the “other entities” [higher] rate in such circumstances violates rule 64B8-10.003. And requiring a patient to jump over an additional hurdle to obtain his or her own medical records — where that patient has already signed a release indicating that the patient gives express permission for the records to be released to the lawyer — is a practice that we construe to be offensive to public policy. We likewise conclude that it is “oppressive, unscrupulous or substantially injurious to consumers” where a party frustrates patient access to medical records by charging higher than permissible rates for copies despite already being instructed that it was not permitted to do so.

Webber, supra.

Clearly, the actual facts here are not construction-related.  But do the facts, or the finding that the facts constituted an “unfair trade practice” under FDUTPA, give you a basis that a FDUTPA claim applies to the facts in your case, or conversely, should not apply?  Although the Second District did not need to decide whether the facts also constituted a deceptive practice, it footnoted that the facts likely did rise up to a deceptive practice.  Webber, supra, n.6.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

YOU DON’T HAVE TO BE A CONSUMER TO ASSERT A FDUTPA CLAIM

shutterstock_519663268A few years ago, the Fourth District Court of Florida rendered an opinion in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., 169 So.3d 164 (Fla. 4th DCA 2015) regarding Florida’s Deceptive and Unfair Trade Practices Act (referred as to “FDUTPA”) (Florida Statute s. 501.201 et seq.).   This case held that a party can assert a FDUTPA claim even though the party is NOT a consumer.  The party still has to prove there was an injury to consumers in filing such claim, but again, the party can bring the claim even though it is NOT a consumerCaribbean Cruise Line, 169 So.3d at 169 (“[W]hile the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to be a consumer to bring the claim.”).  See also Cemex Construction Materials Florida, LLC v. Armstrong World Industries, Inc., 2018 WL 905752, *15 (M.D.Fla 2018) (relying on Caribbean Cruise Line to find that even though the plaintiff does not need to be a consumer, the plaintiff still must prove an injury to consumers to satisfy elements of a FDUTPA claim).

 

To state a claim under FDUTPA, a party must allege (1) a deceptive or unfair trade practice; (2) causation; and (3) actual damages.”  Cemex Construction Materials Florida, LLC v. Armstrong World Industries, Inc., 2018 WL 905752, *14 (M.D.Fla 2018).  

 

An unfair practice is one that is unethical, immoral, oppressive, unscrupulous, or substantially injurious to consumersCaribbean Cruise Line, 169 So.3d at 169 quoting PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla. 2003). 

 

A deceptive practice is an omission or representation that is likely to mislead a consumer acting reasonably under the circumstances to the consumer’s detrimentId.   

 

Naturally, both definitions have fairly expansive scopes and applications. And, with the Caribbean Cruise Line’s confirmation that a plaintiff does not actually need to be a consumer to initiate such a claim renders FDUTPA  a powerful vehicle when it comes to unfair or deceptive trade practices.  

 

If you have questions or issues regarding the breadth and application of FDUTPA, and unfair and deceptive trade practices, consult a lawyer that understands the nuances of such claims.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

ATTORNEY’S FEES UNDER (A) FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT AND (B) OFFERS OF JUDGMENT

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In Florida, a party can recover attorney’s fees if it has a contractual or statutory basis. If a party has neither a contractual or statutory basis to recover attorney’s fees, another vehicle is to serve an Offer of Judgment (also known as a Proposal for Settlement).  Whether there is an argument to recover attorney’s fees is an important consideration.

 

A. Attorney’s Fees Under The Florida Deceptive and Unfair Trade Practices Act

 

The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) is a consumer-protection related law designed to allow parties to sue other parties for deceptive and unfair trade or business practices. FDUTPA is discussed in more detail in http://www.floridaconstructionlegalupdates.com/actual-damages-under-floridas-deceptive-and-unfair-trade-practices-act/. There are certain circumstances when asserting a FDUTPA claim is worthwhile and should be explored such as when a party is looking for a statutory basis to recover attorney’s fees.

 

FDUTPA contains a statutory basis to recover attorney’s fees. Section 501.2105 of FDUTPA provides in relevant part:

 

 “(1) In any civil litigation resulting from an act or practice involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.”

 

 

The reason the word “may” is highlighted is because this is permissive, not mandatory, language. In other words, it is not automatic or mandatory that attorney’s have to be awarded to the prevailing party, but they could (i.e., may) be awarded. This is an important distinction. However, recently, Florida decisions have indicated that attorney fees should be mandatorily awarded to the prevailing party in a FDUTPA action.

 

Recently, in Bull Motors, LLC v. Alicia Borders, 39 Fla. L. Weekly D28a (Fla. 3d DCA 2013), the Third District stated:

 

FDUTPA’s attorneys’ fees provision recognizes the policy of protecting consumers from unfair and deceptive trade practices and the need to attract private attorneys to take such cases by assuring them of a legal fee proportionate to their effects if their clients prevail. Such an award requires that the client prevail by recovering a judgment and, if there are counterclaims, by recovering a net judgment in the entire case. There is no express requirement of proportionality between the amount of the FDUTPA judgment and the attorney’s fees and costs incurred in obtaining the judgment.”

Bull Motors, supra (internal quotations omitted).

 

 

Bull Motors relied on the Florida Supreme Court’s decision in Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013).  In Diamond Aircraft, a plaintiff asserted a FDUTPA claim against a defendant. However, it was determined that FDUTPA did not apply because Arizona law, not Florida law, governed the case. Thus, the defendant prevailed under the plaintiff’s FDUTPA claim. A question certified to the Florida Supreme Court to answer was whether FDUTPA entitled a prevailing party to attorney’s fees if the court determines that FDUTPA does not apply to the case because the substantive law of another state (in this case, Arizona) applied. The Court stated that it did (or answered the question in the affirmative) holding that by a plaintiff asserting a FDUTPA claim, it exposes itself to both the benefits and potential consequences of the statute. Further, the Court expressed: “Under FDUTPA, a prevailing party is entitled to reasonable attorney’s fees and costs in civil litigation arising from a violation of that act ‘after judgment in the trial court and exhaustion of all appeals.’” Diamond Aircraft, supra, at 370 quoting Fla.Stat. s. 501.2105.

 

Hence, even though the statute contains permissive language, there is strong legal authority that would mandatorily entitle a prevailing party to recover attorney’s fees. This cuts both ways. This means that a plaintiff could expose itself to attorney’s fees by improperly asserting a FDUTPA claim without facts to support a deceptive or unfair trade practice or without evidence to support actual damages as provided under the statute.  Plaintiffs need to be cognizant of this before asserting a FDUTPA claim.

 

B. Attorney’s Fees By Serving Offers of Judgment

 

 

 

Moreover, Bull Motors discussed the vehicle to create an argument for the recoverability of attorney’s fees known as offers of judgment or proposals for settlement (“Offer of Judgment”). The Offer for Judgment statute in Florida Statute 768.79 provides in material portion:

 

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer….If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.

 

 

In a nutshell, a defendant can recover its attorney’s fees if it serves an Offer of Judgment and the plaintiff gets a $0 judgment against the defendant or the plaintiff gets a judgment of at least 25% less than the offer. For example, and using simple math, let’s say the defendant serves an Offer of Judgment for $100,000 and the plaintiff obtains a net judgment against the defendant for $50,000. In this situation, the defendant could be entitled to its attorney’s fees from the date of the Offer of Judgment and forward since the plaintiff obtained a judgment of at least 25% less than its $100,000 Offer.

 

And, if a plaintiff serves an Offer of Judgment, it can recover its attorney’s fees if gets a net judgment of at least 25% greater than the Offer. Let’s say the plaintiff serves a $100,000 Offer of Judgment and recovers a net judgment against the defendant for $150,000. In this situation, the plaintiff could be entitled to its attorney’s fees from the date of the Offer of Judgment and forward since the plaintiff obtained a judgment of at least 25% greater than its $100,000 Offer.

 

However, serving Offers of Judgment are not sure-things under Florida law that will guarantee a party to attorney’s fees even if the math (shown above) works. There are numerous Florida decisions that find defects in Offers of Judgment (including technical defects) that ultimately prevent a party from recovering its attorney’s fees. Both Bulls Motor and Diamond Aircraft are examples of decisions whereby the Courts found flaws in the Offers of Judgment. Offers of Judgment do not apply to claims for equitable relief, only claims for damages. Thus, parties need to be crystal clear that the Offers only apply to claims for damages. But it is unfortunately not that simple. The Florida Supreme Court in Diamond Aircraft stated:

 

Courts have also held that when a plaintiff seeks both monetary and nonmonetary relief, and a party makes a general offer of settlement, section 768.79 is not applicable. The reasoning adopted in those decisions is that strict construction of the phrase “any civil action for damages” in the offer of judgment statute does not include a claim for equitable relief, or one that involves claims for both monetary and nonmonetary relief.
***
We hold that section 768.79 does not apply to an action in which a plaintiff seeks both damages and equitable relief, and in which the defendant has served a general offer of judgment that seeks release of all claims.”
Diamond Aircraft, 107 So.3d at 373-74 (internal citations omitted); accord Bull Motors, supra (“The offer of judgment statute, section 768.79…does not apply to cases that, as here, involve a general offer seeking release of all claims in the case, both equitable and monetary.”).

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

“ACTUAL DAMAGES” UNDER FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

u dec prUnder Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), a party can only recover in principal what the statute refers to as “actual damages.” See Fla. Stat. s. 501.211(2) (“In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney’s fees and court costs….”) However, the statute does not define the term actual damages and, thus, parties need to analyze Florida caselaw to understand the meaning of actual damages. This is important so parties know the damages covered under FDUTPA. A claim under FDUTPA is sometimes asserted in a construction-related dispute. Sometimes, it is asserted if a party is seeking an avenue to potentially recover attorneys’ fees.

 
Florida courts (or federal courts interpreting Florida law) have maintained that “actual damages” refer to the “difference in the market value of the product or service in the condition it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties. A notable exception to the rule may exist when the product is rendered valueless as a result of the defect-then the purchase price is the appropriate measure of damages.Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006) quoting Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984).

 
This is similar to benefit of the bargain damages – the market value of the product represented minus the market value of the product delivered. See Gastaldi v. Sunvest Resort Communities, LC, 709 F. Supp. 2d 1299, 1304 (S.D.Fla. 2010).
Based on the way Florida cases define actual damages under FDUTPA, a party needs to prove its damages in accordance with this definition by analyzing the market value of the product represented versus the market value of the product actually received / delivered.

 

Examples of cases discussing the measure of actual damages under FDUTPA are as follows:

 

Rollins v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984) – measure of damages would be the market value of the alarm system and the services alarm company agreed to provide [as represented] minus the market value of the alarm system and services actually provided [as delivered];

 

Ft. Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 315 (Fla. 4th DCA 1998) –measure of damages would be the market value of the used BMW that was never in an accident and with a remote infrared opener [as represented] minus the market value of the BMW which had been in an accident and without remote infrared opener [as delivered];

 

– H&J Paving of Fla., Inc. v. Nextel, Inc., 849 So.2d 1099, 1102 (Fla. 3d DCA 2003) –measure of damages “would be the value of the product at the time of the sale based upon a useful life of approximately eight years [as represented] and [minus] the value of the product which would become obsolete within a few years [as delivered];”

 

– Gastaldi v. Sunvest Resort Communities, LC, 709 F. Supp. 2d 1299, 1307 (S.D.Fla. 2010)– measure of damages would be the difference in the market value of the condominium units with the condominium having a luxury sports club in 2009 [as represented] minus the market value of the condominium units without the condominium having a luxury sports club in 2009 [as delivered].

 

Notably, actual damages under FDUTPA does not include consequential-type damages (or damages other than those established by the measure provided above). See Dorestin v. Hollywood Imports, Inc., 45 So.3d 819, 824-25 (Fla. 4th DCA 2010) (FDUTPA does not allow for consequential damages or any other damages outside of actual damages); Orkin Exterminating Co., Inc. v. DelGuidice, 790 So.2d 1158, 1162 (Fla. 5th 2001) (actual damages do not include actual consequential damages). For example, lost profits or interest on payments would not be a recoverable consequential damage. See Rodriguez v. Recovery Performance & Marine, LLC, 38 So.3d 178 (Fla. 3d DCA 2010) and Siever v. BWGaskets, Inc., 669 F.Supp.2d 1286, 1294 (M.D.Fla. 2009).

 

Understanding actual damages in a FDUTPA claim is important prior to asserting a claim so that a party knows what is recoverable and what is not recoverable under FDUTPA. It is also important so that a party knows how to prove actual damages.

 

 

For more information on FDUTPA, please see:

http://www.floridaconstructionlegalupdates.com/attorneys-fees-under-a-floridas-deceptive-and-unfair-trade-practices-act-and-b-offers-of-judgment/

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.