A recent decision from the Fourth District Court of Appeals marks one of the first Florida appellate opinions holding that non-consumers may maintain a cause of action under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Given the broad—and almost limitless—scope of “unfair or deceptive acts or practices in the conduct of any trade or business” prohibited by the act, some could foresee this decision as a precursor to FDUPTA claims being asserted by nearly every commercial litigant. Fortunately, the 4th DCA clarified the parameters on FDUPTA claims: while a claimant need not be a consumer to bring a FDUPTA claim, the claimant must still prove an injury or detriment to consumers to establish liability.
In Carribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., — So. 3d — 2015 WL 3480114 (Fla. 4th DCA 2015), Caribbean Cruise Lines sued the Better Business Bureau (“BBB”) after receiving an “F” rating, which was published on the BBB website. Caribbean Cruise Lines brought a FDUPTA claim against BBB, asserting that the “BBB is deceptive in their practices, including its representation that it has an unbiased rating system and conducts an adequate investigation into the businesses for which it rates, when, in fact, it does not.”
BBB moved to dismiss the FDUTPA claim on grounds that the Act only protects consumers and Caribbean was not in a consumer relationship with BBB. Finding no allegation that Caribbean Cruise was a consumer, the trial court granted BBB’s motion to dismiss. The 4th DCA reversed, holding that an entity does not have to be a consumer in order to have standing to bring a FDUTPA claim. The court reasoned that the 2001 amendment to the § 501.211(2) of the Act, which replaced the word “consumer” with the word “person” as to who may qualify as a potential claimant. Additionally, the legislature amended the definition of “consumer” to include a “business” and “any commercial entity however denominated”. Fla. Stat. § 501.203(7).
The 4th DCA recognized a dearth of Florida case law on the topic and further acknowledged a split of authority in Florida’s federal courts. The Court agreed with the reasoning from the Southern District of Florida, affording significant meaning to the legislative changes regarding the claimants able to recover under FDUTPA from “consumer” to a “person”. According to the Court, the legislative changes to FDUPTA signaled an intent to apply FDUPTA to not only consumers, but to other entities able to prove the remaining elements of the claims as well.
But not all “unscrupulous” commercial activity is proscribed by the seemingly amorphous scope of the Act. The Court cited to the Florida Supreme Court’s definitions of “unfair practice” and “deception” for the proposition that such prohibited activity must be harmful to consumers to be actionable under FDUTPA. In sum, while the claimant would have to prove there was an injury or detriment to consumers to establish liability under FDUTPA, the claimant does not have to be a consumer to bring the claim.