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Successfully suing a consumer rating bureau for the lost business that results from an erroneous or biased rating can be extremely challenging. Potential business-owner litigants and their attorneys quickly learn that in most jurisdictions, courts have developed case law shrouding consumer bureaus like the Better Business Bureau with broad constitutional protection. Specifically, in many places, courts find that statements made by a consumer bureau such as the Better Business Bureau are statements of pure opinion that receive absolute privilege under the First Amendment of the Constitution of the United States. As such, a plaintiff in a lawsuit against a consumer bureau may have a difficult time surviving the pleading phase of litigation.

Fortunately, for businesses in South Florida, the legal landscape has changed. Florida’s Fourth District Court of Appeal recently dealt a devastating blow to consumer bureaus, the Better Business Bureau in particular, in the case captioned Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916. In Caribbean, the plaintiff alleged claims against the Better Business Bureau under Florida Unfair and Deceptive Trade Practices Act on the basis that “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.” Further, the plaintiff alleged that “BBB falsely represents that it bases its grade on sixteen specifically-enumerated factors, and that BBB does not inform the public that it partially relies on whether a business is ‘accredited’ in grading that business.”

The trial court granted a motion to dismiss filed by the BBB finding that the BBB’s statements were protected by the First Amendment. Upon review, the Fourth District strongly disagreed and found that the plaintiff’s dispute was not with the opinions issued by the BBB, but rather was with the representations that the BBB makes, the methods that it employs, and the way it conducts its business. The Fourth District Court of Appeal held:

Since Caribbean Cruise’s allegations do not challenge statements of BBB’s opinions, the First Amendment did not protect BBB from Caribbean Cruise’s FDUTPA claim.

Therefore, the Fourth District reversed and remanded the case to the trial court.

While litigation against a consumer bureau still presents challenges for plaintiffs, the Fourth District’s ruling in Caribbean is great news for potential litigants considering a lawsuit against a consumer bureau such as the Better Business Bureau. However, a case against a consumer bureau will still require careful development of legal strategy and extremely well crafted pleading in advance of filing a lawsuit.

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W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus and various Better Business Bureau affiliates. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

In the US, it is almost universally established that BBB grades are opinion statements entitled to absolute privilege under the First Amendment of the Constitution. Some inroads on BBB liability have been made by attacking statements other than the rating. Specifically, in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916, a trial court found that the BBB’s representations regarding systems and practices could be defamatory if the Plaintiff could prove the falsity of the statements.

On the other hand, in Canada, ratings seem to be the fair subject of a defamation suit. In Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383 (Hoy A.C.J.O., Huscroft and Paciocco JJ.A.), April 19, 2018, a Canadian appeals court found that the plain and ordinary meaning of a D- grade issued by the BBB to a business could be legqally defamatory. While the BBB ultimately prevailed on one of the defenses it asserted in the litigation, the Canadian court, unlike US courts, found that the plain and ordinary meaning of a D- rating was actionable.

While the Canadian model has no impact on the status of US consumer bureau defamation law, the distinction between Canadian law and US law is interesting especially for US plaintiffs that have been frustrated by the BBB’s opinion statement defense.


W Mason is an Partner with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W has previously written on several issues pertaining to litigation involving consumer bureau defamation. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus and various Better Business Bureau affiliates. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

In a related post, I recently addressed Florida’s Fourth District Court of Appeal’s decision in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916. For those involved in consumer bureau litigation, the most exciting part of the Court’s opinion was obviously the Court’s holding that a local Better Business Bureau (“BBB”)  affiliate was not protected by First Amendment privilege when a claim concerns the BBB’s methods, business conduct, or representations. However, the Court also shed some new light on Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).

As a matter of background, the Florida legislature amended FDUTPA in 2001 by changing the definition of who could bring a FDUTPA action from a “consumer” to a “person.” While it may seem obvious that the amendment signaled an intention to expand access to FDUTPA actions, sparse Florida case law on FDUTPA created some confusion. Often times, trial courts, such as the one in Caribbean Cruise, erroneously continued to require consumer status for a claimant bringing a FDUTPA action based on the Fourth District’s opinion in Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA 2004).

Fortunately, the Fourth District has added some clarity to the issue. In the second portion of the Court’s opinion in Caribbean Cruise, the Court held that the 2001 amendment indicated that “the legislature no longer intended FDUTPA to apply only to consumers, but to other entities able to prove the remaining elements of the claim.” The Court stated:

[W]hile the claimant would have to prove that there was an injury or detriment to consumers in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to be a consumer to bring the claim.

After Caribbean Cruise, FDUTPA claims seem to be available to businesses in B2B transactions as long as the claimant can show some potential harm to consumers resulting from the unfair or deceptive trade practice. More specifically, however, the Court was unequivocally clear that FDUTPA claims are available to businesses in litigation against consumer bureaus like the BBB where the claimant alleges that the bureau is acting in a biased or partial way even though the bureau makes representations that it acts impartially or without bias. In this sense, the Fourth District opened the door to lawsuits in connection with representations that consumer bureaus make about themselves as opposed to their constitutionally protected opinions about a particular business.

Caribbean Cruise is certainly a sign of hope for practitioners and businesses aggrieved by a consumer bureau like a local BBB. However, in order take advantage of Caribbean Cruise and bring a claim against a consumer bureau like a local BBB, businesses and their attorneys will need to develop a sound strategy well in advance of filing suit and be extremely meticulous in pleading their causes of action so as to overcome defenses of constitutional protection in the bureau’s motion to dismiss.

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W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus including the Better Business Bureau. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

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