The Ins and Outs of Florida’s Deceptive Trade Practices Act

Florida’s Deceptive and Unfair Trade Practices Act or FDUTPA, can be a blessing or a curse, depending on whether you are a business trying to avoid getting into legal trouble, or a consumer trying to get redress for being wronged by an unscrupulous business. Either way, FDUTPA is a strong law that businesses should be aware of.

Who Can Sue Under FDUTPA?

FDUTPA allows both aggrieved consumers to sue for damages, but also the government. The Florida Attorney General’s office often sued businesses that break the law, or which defraud consumers, under FDUTPA.

Note that while consumers can sue under FDUTPA, businesses generally can’t. In other words, commercial relations that are between businesses, are usually not covered by FDUTPA.

What Behavior is Prohibited?

This is where things get difficult for businesses trying to avoid running afoul of the law.

Any behavior that is unfair or deceptive is prohibited. That doesn’t help much, and there is the confusion: there is no one definitive definition of what deceptive or unfair actually is or what it means. It certainly can be fraudulent behavior, but it doesn’t have to be.

Courts have also said that any behavior which is against public policy, or which would be considered to be unethical or immoral, would violate the law.

Courts have given some language to help, although not much.

Behavior that is likely to mislead people, may violate the statute, which means that even accidental misrepresentations can give rise to liability. Whether something is misleading is based on an objective standard, i.e, whether a reasonable consumer would have been misled in the same or similar situation.

Tactics like false advertising, bait and switch, or misrepresentation of the quality of goods or the nature of services, can violate the law.

What are the Damages?

The damages largely depend on who is suing under FDUTPA.

The government can get damages on behalf of the state, or all aggrieved consumers, and thus, can sue for what could be millions of dollars, in some situations.

Consumers also can bring class actions lawsuits under FDUTPA, which again can lead to significant and costly litigation.

An individual consumer can only sue for his or her actual damages, and the consumer will have to show that he or she was injured financially in some way. However, the law does provide the consumer his or her attorney’s fees, so getting an attorney to represent the consumer is often easier, and a consumer can in some cases sue even if damages are not significant.

Losses that are speculative or emotional, such as disappointment, cannot be recovered by consumers under FDUTPA. Additionally, any action that is required by law, cannot be the subject of a FDUPTA claim, such as a legally required disclaimer, or a legally required notice of default or notice of a lawsuit.

Call the West Palm Beach business litigation attorneys at Pike & Lustig today for help with your business’ legal needs.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0501/0501PARTIIContentsIndex.html

floridabar.org/the-florida-bar-journal/the-unclear-scope-of-unconscionability-in-fdutpa/