Florida’s Deceptive and Unfair Trade Practices Act

It is common for litigants to allege violation of Florida’s Deceptive and Unfair Trade Practices Act, colloquially referred to as “FDUTPA,” to seek damages for unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.  See Section 501.204 of the Florida Statutes. 

There are several advantages for plaintiffs in suing under FDUTPA.  One advantage is the statute’s broad scope.  For example, as numerous cases recite, the “unfair” prong is met where the practice offends established public policy or is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.  Likewise, the terms “consumer” and “trade or commerce” are broadly defined, permitting a broad array of actions to qualify as potential FDUTPA violations. 

A second benefit of suing under FDUTPA is that the prevailing party is entitled to request an award of attorneys’ fees and costs from the non-prevailing party.  See Section 501.2105 of the Florida Statutes.  Because, in the ordinary course, the so-called “American Rule” is that each side in a litigation bears his or her fees and costs, FDUPTA can provide a valuable cost-shifting mechanism.

However, plaintiffs must beware, because what is good for the goose is good for the gander: defendants who prevail against FDUPTA claims also can seek their fees and costs from plaintiffs.   In a recent case, Daniel Rosenthal and his colleagues successfully defended at trial against plaintiffs’ FDUTPA claim, giving their client the right to seek hundreds of thousands of dollars in fees and costs from the plaintiffs.  With that leverage, Daniel negotiated a prompt settlement that led the plaintiffs to abandon their appeals and provide other valuable concessions to his client.

Before filing a FDUTPA claim, each plaintiff and his or her counsel need to assess whether “upping the ante” is a winning gambit.

Do you have questions about this content? Please contact the DBR Law Office at daniel@dbrlawfirm.com or (561) 853-0991.