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We have changed the format of this post to allow the reader to get a feel for what it is important to retain or at least consult with an attorney before bringing not only a claim under Florida’s Deceptive and Unfair Trade Practices Act but also for that matter any claim. Whether you are a plaintiff or defendant the legal requirements of a cause of action, such as a claim under FDUTPA need to be fully understood and applied appropriately. It is not that easy as the below discussion demonstrates. Consequently, as we have urged our readers, please consult a qualified professional before considering bring any type of legal action or before you attempt to defend the same yourself.
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201-.213, Florida Statutes is intended 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.” § 501.202(2). See also Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So.2d 602, 605-06 (Fla. 2d DCA 1997) (discussing the purpose of FDUTPA in light of its legislative history). 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 Boca Raton, 782 So.2d 489, 499 (Fla. 4th DCA 2001) (quoting Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 293 (7th Cir.1976)).
FDUTPA affords civil private causes of action for both declaratory and injunctive relief and for damages. With respect to the recovery of damages, FDUTPA provides:
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 as provided in s. 501.2105. However, damages, fees, or costs are not recoverable under this section against a retailer who has, in good faith, engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this section. § 501.211(2). Thus a consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. See Chicken Unlimited, Inc. v. Bockover, 374 So.2d 96, 97 (Fla. 2d DCA 1979); Gen. Motors Acceptance Corp. v. Laesser, 718 So.2d 276, 277 (Fla. 4th DCA 1998); Macias v. HBC of Fla., Inc., 694 So.2d 88, 90 (Fla. 3d DCA 1997). The standard for determining the actual damages recoverable under FDUTPA is well-defined in the case law:
“The measure of actual damages is 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. 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 actual damages.” Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984) (quoting from Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983)).
For purposes of recovery under FDUTPA, “actual damages” do not include consequential damages. See Boca Raton Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 314 (Fla. 4th DCA 1998). FDUTPA’s bar on the recovery of consequential damages precludes the recovery of, for example, the costs to repair a building resulting from a deficient inspection for termites. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 263 (Fla. 2d DCA 2004); Urling v. Helms Exterminators, Inc., 468 So.2d 451, 454 (Fla. 1st DCA 1985). Similarly, the recovery afforded under FDUTPA does not include diminution in value or stigma damages caused by termite damage. See Orkin Exterminating Co. v. DelGuidice, 790 So.2d 1158, 1162 (Fla. 5th DCA 2001).
FDUTPA is a remedial statute designed to protect consumers. See Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So.2d 274, 279 (Fla. 4th DCA 2004). One of those remedial purposes is to provide for the possibility of an attorney’s fee award. § 501.2105, Fla. Stat.
The Florida Deceptive and Unfair Trade Practices Act depends for enforcement on its “enforcing authority” and the injured consumers. If, because of the small sums involved, consumers cannot recover in full their attorney fees, they will quickly determine it is too costly and too great a hassle to file suit, and individual enforcement of this act will fail. The obvious purpose of the “little FTC Act” is to make consumers whole for losses caused by fraudulent consumer practices. These aims are not served if attorney fees are not included in the protection. LaFerney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534, 536 (Fla. 5th DCA 1982). Accordingly, the contractual clause’s bar on an award of attorney’s fees defeats a remedial purpose of FDUTPA. Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1024 (Fla. Dist. Ct. App. 2005).
Finally, the Florida Supreme Court has held that FDUTPA applies to private causes of action arising from single unfair or deceptive acts in the conduct of any trade or commerce, even if it involves only a single party, a single transaction, or a single contract. An unfair practice is “one that ‘offends established public policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’ ” Samuels, 782 So.2d at 499 (quoting Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 293 (7th Cir.1976)); see Millennium Communications & Fulfillment, Inc. v. Office of the Attorney Gen., 761 So.2d 1256, 1263 (Fla. 3d DCA 2000) (stating that deception occurs if there is a ” ‘representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.’ “) (quoting Southwest Sunsites, Inc. v. Fed. Trade Comm’n, 785 F.2d 1431, 1435 (9th Cir.1986)).Contact Us
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