Florida's Deceptive and Unfair Trade Practices Act, known as FDUTPA, is the primary consumer protection statute in Florida. The purpose of FDUTPA is to protect consumers and businesses from those who engage in:
- Unfair methods of competition. Unfair methods of competition are those acts and practices that can give a company a competitive advantage over rivals that do not resort to the same conduct.
- Unconscionable acts or practices in the conduct of any trade or commerce.
- Deceptive acts or practices in the conduct of any trade or commerce. "Actual" deception is not required. However, the representation, omission, or practice at issue must be one that is (1) likely to mislead the consumer, viewed from the perspective of a consumer acting reasonably under the circumstances, and (2) material enough to affect the consumer's conduct or decision, even though actual reliance on the representation, omission or practice is not required.
- Unfair acts or practices in the conduct of any trade or commerce. An "unfair" act or practice has been defined as one that "offends established public policy'" and one that is "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers."
- Acts or practices that violate rules promulgated pursuant to the Federal Trade Commission (FTC) Act.
The elements of a FDUTPA claim are (a) one of the foregoing prohibited acts or practices that (b) caused (c) actual damages. A claimant need not prove actual reliance on the one prohibited acts or practices to state a claim for violation of FDUTPA.
Consequential and special damages are not recoverable under FDUTPA. However, in addition to seeking actual damages, a claimant may seek an injunction to prevent violations of FDUTPA. The prevailing party in a FDUTPA claim may also receive reasonable attorney's fees and costs from the non-prevailing party.
FDUTPA does not apply to various categories of persons and activities. The act or practice at issue must be examined in light of the statutory exemptions. For example, a FDUTPA claim may not be asserted against persons regulated by the Office of Insurance Regulation or Financial Regulation of the Financial Services Commission, or brought for claims for personal injury or death.
Individuals may be liable for corporate acts or practices that violate FDUTPA, but it must be shown that the individual actively participated in or had some measure of control over the corporation's acts or practices at issue.
Over the past 16 years, Joel Ewusiak has litigated and arbitrated numerous individual, business, and class action cases involving alleged violations of FDUTPA. Please contact Joel for assistance with your particular matter.