Often regarded as a mirror of the Federal Trade Commission Act, the Florida Deceptive & Unfair Trade Practices Act (FDUTPA) is a critical piece of Florida law which is designed to protect both consumers and competitor businesses.
The FDUTPA draws heavily from the FTC Act, but it is distinguishable in certain key respects. In this post, we will provide a basic overview of the FDUTPA by examining its basic definitions, and then go over how a potential litigant might make a claim.
As we will discuss further, readers should keep in mind that Florida courts only allow for “actual damages” to be recovered under the FDUTPA, as opposed to “speculative” or “future” damages.
Basic Purpose of the Law
According to the language of the FDUTPA, the purposes of this law are to simplify and improve Florida’s modern law on consumer protection by specifically addressing unfair and deceptive trade practices, and to better protect individual consumers and competitor businesses from the impact of unfair and deceptive trade practices.
What are “Deceptive & Unfair Trade Practices?
The FDUTPA provides numerous definitions. For instance, under this statute, a “consumer” is defined as any of the following things: an individual, a business, an association, a firm, a joint venture, a partnership, an estate, a trust, a syndicate, a fiduciary, a corporation, a minor through its legal guardian, or any other commercial entity. Clearly, this definition is meant to cast a wide net and give as many people as possible an opportunity to bring a claim under the FDUTPA.
In its section on “Unlawful acts and practices,” the statutory language indicates that the Florida legislature intended to give substantial weight to the Federal Trade Commission and federal courts in understanding and interpreting unfair and deceptive trade practices. Hence, deceptive and unfair trade practices are, to some degree, the same practices and behaviors which have already been identified by the federal courts.
However, Florida courts have also added and refined their own definitions. Florida courts basically define an unfair or deceptive act as an omission, behavior, or representation that could mislead a consumer who acted reasonably under the existing conditions. Further, if a behavior violates a public policy of the State of Florida, then that behavior may also qualify as an unfair or deceptive trade practice, as it may be viewed as unethical or oppressive.
Proving a Claim under the FDUTPA
Anyone can bring a suit under the FDUTPA, but only those who can prove that a violation actually occurred (and was suffered by them) will be able to recover damages.
To prove an allegation under the FDUTPA, a claimant needs to do the following things: (1) the claimant needs to show that an individual or business committed an unfair or deceptive act against him or her, (2) the claimant needs to show a direct link, or causality, between the alleged unfair or deceptive behavior and the damages suffered, and (3) the claimant must have suffered real, quantifiable damages, the damages cannot be imagined, speculative or hypothetical.
In other words, the FDUTPA doesn’t provide “prior restraint” to fearful consumers or competitor businesses; you can only bring a suit if you have actual damages.
FDUTPA Claims Are Available to Businesses
Florida courts have resolved any uncertainties regarding the potential for businesses or organizations to have legal standing to bring a suit under the FDUTPA. Businesses or organizations are able to initiate lawsuits under the FDUTPA, but only if actual damages are suffered. For individual consumers, damages are usually not too difficult to quantify. An individual consumer typically purchases a product, and the cost of that product is the extent of the damages in most cases.
For competitor businesses, the situation is usually quite a bit murkier. However, Florida courts have also assisted in this area by determining that, in some cases, lost profits in the past may be recoverable. A business cannot sue to recover future projected losses, but they may recover past lost profits, as long as those past lost profits can be adequately quantified and substantiated with evidence.
Contact The Frazer Firm for More Information
The business attorneys at The Frazer Firm have experience litigating and advising businesses on FDUTPA claims. If you or your business has been sued for FDUTPA violations, or has been harmed by deceptive or unfair trade practices, contact the business attorneys at The Frazer Firm today by scheduling a consultation or calling our office at 561-295-1551.
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