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.