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.