Consumer Litigation Defense
Florida’s Deceptive Unfair Trade Practices Act
Consumer Litigation Florida’s Deceptive Unfair Trade Practices Act (“FDUTPA”), also known as the “Florida Little FTC Act”, presents unique challenges in consumer litigation. Rumberger, Kirk & Caldwell attorneys have written and lectured in the areas of the FDUTPA, and have formerly worked for federal and state consumer protection agencies. When assigned a consumer case, RKC strives to clearly understand the business objectives of the client and develop a cost effective plan tailored to meet those objectives.
FDUTPA allows claimants to recover “actual damages” and attorney’s fees and costs for even a single act or practice which is “deceptive,” “unfair,” “unconscionable,” or an unfair method of competition. Unlike many states, the Little FTC Act does not restrict itself to claims brought by consumers. Instead, it applies to virtually all commercial relationships, unless specifically exempted. The attorney fee provision applies to the prevailing party (not Plaintiff); courts award fees only after judgment and the exhaustion of all appeals. The cases can be extraordinarily risky because of the attraction of the fee provision and the opportunity for “copy cat” cases and a Plaintiff lawyer may attempt to create a cottage industry based upon a type of case, often targeting an entire industry or a specific defendant. Early and realistic evaluations of the risk involved and potential modifications of the challenged business decisions need to be considered in a pragmatic manner. RKC typically considers potential recommendations to minimize risk in appropriate cases such as modification of contracts or business practices in a manner that does not inhibit legitimate business practices, but reduces risk. When appropriate, potential regulatory or administrative avenues are considered as solutions.
As a result, litigants often attempt to re-characterize straightforward contract-based claims into FDUTPA actions simply by characterizing conduct as “unfair” or “deceptive.” This theoretically enables parties to avoid the terms of certain contracts or warranties and obtain the leverage of the prevailing party fee provision. Litigants accomplish this by claiming non-disclosure of “material facts” or complaints about post-contract representations or performance. Additionally, the statute incorporates as a violation of the Act, any violation of FTC rules, or certain FTC policy statements, as well as, any other statutes or ordinances that proscribe unfair or deceptive conduct. Unlike tort claims, the economic loss doctrine does not bar a Little FTC Act claim, and claimants may not have to prove intent or “reliance” as an element.
RKC has extensive experience in defending such claims, including trial. Our experience in this area includes nearly every imaginable type of matter in which a FDUTPA claim might arise. As noted, many consumer actions involve what amounts to a contractual dispute that are transparent attempts to avoid the terms of the contract by asserting vague claims of unfairness or deception regarding conduct that has never previously been proscribed by controlling case law. Our clients also frequently encounter FDUTPA claims in cases involving breaches of warranty in the automotive and recreational product industries, pest control, and construction industries.
RKC has also had success in “capping” potential FDUTPA damage claims to the amount of the “diminished value” of goods or services. This includes overturning “stigma” damage awards on appeal. An advantage of such rulings is that the damages often occur at the time of sale, this triggers the statute of limitations, even if the Plaintiff was unaware of any violation. This measure of damages excludes all consequential damages.
- RKC successfully defended class actions brought under FDUTPA, resulting in decisions which reject “bad act,” and “pattern and practice” evidence as a basis to certify class actions and emphasizing the Defendants’ due process rights to contest most allegations on a transaction by transaction basis.
- In the maritime context, RKC successfully defended FDUTPA claims by establishing that repairs made to a "vessel" are essentially maritime contracts. In that regard, the courts will apply general federal maritime law to the dispute. Traditionally, claimants pair claims under the Magnuson Moss Warranty Act with counts under FDUTPA. Both acts provide for an award of attorneys' fees to the plaintiff if plaintiff prevails against the manufacturer. RKC has established that general federal maritime law preempts claims for breach of warranty brought pursuant to the Magnuson Moss and Florida Deceptive and Unfair Trade Practices Act because they conflict with the award of attorneys' fees under general federal maritime law.
- RKC has also successfully handled FDUTPA actions in connection with lawsuits brought by Florida’s Attorney General.
- RKC also has substantial experience in enforcing arbitration clauses, as well as enforcing the non-joinder provision of arbitration clauses. We have successfully defeated efforts to attack arbitration agreements on a wide range of grounds, including unconscionability and alleged inconsistency with statutory remedies.
- RKC also has substantial experience in other forms of consumer litigation, including false advertising claims, federal and state versions of debt collection statutes, as well as virtually every other consumer statute.
In addition to FDUTPA, RKC helps clients resolve conflicts under consumer protection laws including the Federal Trade Commission Act (FTC Act) and other consumer statutes from other states. Actions under these laws can pose special problems for clients, because often the civil claims under these acts implicate potential criminal violations as well as violations potentially subjecting the client to severe civil penalties. RKC is experienced in coordinating with criminal counsel in the defense of the civil related cases, while developing a strategy to resolve the civil issues as quickly as possible.
- RKC has represented clients in actions involving the Federal Trade Commission, the Florida Department of Legal Affairs, the Securities and Exchange Commission (SEC), as well as enforcement agencies from other states.
- We represented owners of a small business, which suddenly found themselves subjected to a Temporary Restraining Order and Asset Freeze imposed by the FTC in federal court. We were able to aggressively fight the actions of the FTC and push a practical resolution of the case, while coordinating with the clients’ criminal counsel to insure that the civil action did not create any additional issues on the criminal front.
- RKC has also represented a large national family of businesses in actions brought by the Florida attorney general under FDUTPA. RKC successfully obtained dismissal of the AG’s claims and through aggressive discovery and legal arguments, resulting in a quick and advantageous resolution.
- RKC also represents clients when they face civil actions by private litigants under these consumer statutes. RKC represented a national client with other leading firms in several putative class-action claims brought under various state consumer statutes.
RKC has an extensive class action practice in the areas of consumer litigation, product liability and insurance law. These type of claims often result in class actions which pose significant exposure and expense to our clients regardless of the merits. In the area of consumer litigation, RKC has had substantial responsibility on a number of leading class action cases in federal and state courts, and under the American Arbitration Association Class Action Rules. RKC has been successful in emphasizing due process considerations involved in class actions, as well as the difficulties of proof relating to causation and fact of injury. In our general litigation of consumer claims, the firm has been responsible for some of the more significant cases restricting the types of damages that are recoverable under the Florida Unfair and Deceptive Trade Practices Act, as well as imposing strict requirements of causation in order to establish violations.
The firm also represents major insurance companies in class actions involving important issues concerning the legality of certain insurance practices or the meaning of critical provisions of insurance policies. We have been successful in preemptively dismissing numerous class actions by prevailing on standing issues or establishing as a threshold matter that the class representative’s claims do not state a cause of action.
- RKC was successful in defeating class action certification in California for a national client by focusing the court’s attention on the untimeliness of Plaintiff’s motion to certify the putative class. In a related case, RKC was involved in defeating the class claim by forcing individualized arbitration.
- In Arkansas, RKC was involved in defeating a class claim by showing the class representative’s claims were barred by the statute of limitations, making the class-representative and insufficient representative of the class.
- RKC was also involved defeating a statewide class arbitration action by defeating the class-representative’s claims on the same ground, as well as showing that the individual issues associated with each class member’s claims would make the class process unmanageable. Once class certification is defeated many plaintiffs simply abandon their claims or reduce their demands to a reasonable amount. These claims have also included multi-million dollar claims under the AAA’s class action rules, Regardless, RKC is prepared to defend the client with creative strategies that challenge the Plaintiffs’ legal theories on every legitimate grounds while simultaneously aggressively developing a strong factual record to attack not only liability issues, but standing, causation and damages.
RKC attorneys have extensive experience advising and defending national and local clients on all aspects of consumer collection laws, including the federal Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act. We represent clients in both state and federal courts, including bankruptcy court and on appeal. RKC's successes have resulted in favorable opinions from both federal and state courts in Florida which have been instrumental in defining clients' rights and obligations. Our attorneys' knowledge and experience in this ever evolving area of the law combined with the firm's extensive litigation and appellate experience, make RKC uniquely qualified to guide its clients on all levels, including policy decisions, procedures and litigation strategy.
Florida is a debtor's haven, with homesteads and other devices for evading collections. RKC attorneys have experience tracking down and seizing assets to satisfy judgments. RKC provides services in commercial collections--collecting accounts receivable for businesses from their debtors. Much of this work is repetitive in nature, allowing RKC to collect accounts receivable in a cost-effective, efficient manner. While we try to resolve many cases through an enforceable payment plan filed with the court, when such resolution is not possible, RKC attorneys aggressively pursue judgments through litigation enforce those judgments through the use of garnishments and levies.