Providing a putative class representative with complete relief did not moot his individual and class demand for declaratory and injunctive relief under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) according to a recent decision from a divided panel of Florida’s First District Court of Appeal.

In Ahearn v. Mayo Clinic, 2015 Fla. App. LEXIS 16716 (Fla. Dist. Ct. App. 1st Dist. Nov. 6, 2015), Shawn Ahearn received emergency medical treatment from the Mayo Clinic in September 2013. Lacking health insurance for the medical care, he received a bill for $5,953.26. After paying $330 of the bill, Ahearn found fault with the charges and launched a class action alleging the amounts charged by the Mayo Clinic to him and other uncovered patients was unreasonable in light of the services provided and the rates charged to patients who had appropriate health insurance coverage for the same services.

Before Ahearn requested class certification, the Mayo Clinic moved for summary judgment and advised that it had waived Ahearn’s remaining balance and also offered to have the court assess appropriate attorney’s fees and costs against it.  The trial court granted summary judgment and dismissed Ahearn’s complaint.

Contract and Statutory Monetary Relief Claims Mooted

On appeal, the Appeal Court agreed that Ahearn’s claims for breach of contract, breach of implied covenant of good faith and monetary damages under § 501.211(2) of the FDUTPA were mooted by the Mayo Clinic’s waiver of the balance due and offer to pay Ahearn’s attorney’s fees and costs. It also rejected Ahearn’s argument that although these claims are moot he continued to have standing as a class representative.

The Court commented that while a majority of federal decisions hold that a defendant cannot “pick off” a class representative prior to class certification by mooting a claim, as a Florida state court interpreting state law it was compelled to follow Florida Supreme Court precedent established in Sosa v. Safeway Premium Fin. Co.,  73 So. 3d 91, 116 (Fla. 2011). Sosa held that before a class can be certified the class representative must have standing, illustrated by demonstrating that an actual controversy exists between him or her and the defendant that will continue throughout the existence of the litigation. The Mayo Clinic’s debt waiver and offer to pay attorney’s fees and costs left no actual controversy on the breach of contract and breach of implied covenant claims, so Ahearn could not satisfy this burden and lacked standing on behalf of the class.

Moving on to Ahearn’s claim for monetary damages under the FDUTPA, the Court noted that § 501.211(2) of the Act entitles an aggrieved party who has “suffered a loss as a result of a violation of this part” to recover “actual damages, plus attorney’s fees and court costs.” Reasoning that Ahearn’s entitlement to actual damages was satisfied by the waiver of his balance and similarly since the Mayo Clinic agreed to pay attorney’s fees and costs, the Court agreed with the trial court that his claims were mooted in this regard and thus Ahearn lacked standing on behalf of a class.

FDUTPA Claim for Injunctive and Declaratory Relief Survive

The Court found that Ahearn continued to have a claim for declaratory and injunctive relief under § 501.211(1) of the FDUTPA. This section provides that “without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.”

The Mayo Clinic argued that Ahearn was not “aggrieved” as required by this section because having waived the balance and agreed to pay his attorney’s fees and costs, Ahearn had suffered no loss and had no actual damages.

The Court disagreed. The term “aggrieved,” the Court reasoned, indicated an intentional legislative distinction and it would not read it as the equivalent of having “suffered a loss.” The Appeals Court, citing its prior decision in Davis v. Powertel, Inc., 776 So. 2d 971, 975 (Fla. 1st DCA 2000), reasoned that Ahearn may pursue his claims as “an aggrieved party” even if the relief would only be to protect “consumers who have not yet been harmed by the unlawful trade practice.” In concluding that a party is not required to have suffered “actual damages” to obtain FDUTPA injunctive relief the Court pointed out that for someone to be aggrieved under the FDUTPA “the injury claimed to have been suffered cannot be merely speculative.” The Court further determined that due to the language of § 501.211(1) governing declaratory and injunctive relief, the offending conduct need not be continuing to create a cause of action, rather there must be a demonstration of a specific past, present or future grievance.

While Ahearn’s individual and putative class claims for FDUTPA injunctive relief remained viable, the issue of whether Ahearn had been “aggrieved” was not resolved. The Court sent this question back to the trial court.

Dissent Says Opinion Goes Too Far

The dissent disagreed that for one to be”aggrieved” and entitled to FDUTPA injunctive relief, a person must suffer some damage, even if it was not an out-of-pocket, actual loss. The distinction between “suffered a loss” and “aggrieved” simply allows persons who have no out-of-pocket, actual damage to seek an injunction where they have still suffered consequential damages, damages from loss of value or “stigma damages” which while still a damage, cannot be recovered as a monetary award under the FDUTPA.

The majority decision goes too far, the dissent argued, because it allows FDUTPA claims to proceed where no damages or loss can be identified and “need not demonstrate that they have been adversely affected or harmed.”