Having practiced law for 35 years, Doug Brown, a partner in the Orlando office of RumbergerKirk, continues to enjoy the challenges of litigation.

Doug, Can you tell us a little bit about how you approach a case?

The first issue is to determine what the client’s objectives are in the case.  Does this case involve some important principle or is it simply a case that will be decided upon issues of economic expediency?  Clients (and insurance companies) have a interest in developing and preserving a reputation of not being viewed as a “target” that will pay the cost of defense regardless of merit.  Most of our clients put a significant value on vigorously defending meritless claims.  But you have to objectively evaluate the claim and if you made a mistake – own up to it.

I like to do a “quick look” evaluation and consider an early mediation to test the reasonableness of the other side.  It is important to give as much attention to damage issues as liability when you do that evaluation.  Settling a case might seem the best route, but that approach can also lead to more lawsuits. At the same time, it can be even worse to try the case, lose and attract even more claims.  Some lawyers representing plaintiffs will “specialize” in suing one industry or even one large corporate defendant and “spread” its cost from one case to many cases.  A bad deposition from a corporate officer can be used by a plaintiff in subsequent cases pretty much until the end of time.

What kinds of cases to you most enjoy?

My favorite cases have been large consumer class actions.  We have been fortunate to “partner” with some of the best law firms around the country to defend our clients. Some of the most rewarding experiences I have ever had have come from working with some of the best attorneys in the country on these type of cases.  The stakes are large enough that you can spend the time to do your best work.  You also learn a lot.

What is it About the Florida Little FTC Act that you Find so Compelling?

Historically, the FTC decided cases by administrative proceedings, although since the 1970s the agency has also had authority to bring enforcement in Federal District Courts.  However, the process of defining what conduct is “unfair” or “deceptive” has been largely confined to administrative adversarial hearings conducted by the FTC or rule making by the Commission.

Private Plaintiffs under state Little FTC Acts can sue for damages under state statutes like Florida’s Act (“called FDUTPA”) and recover actual damages, attorney’s fees and can obtain injunctive relief.  The problem is that juries are deciding not only what happened – who said what or who did what, but often define what conduct is deceptive or unfair with no objective standards.  This “rule making” by random juries creates unpredictability as to what is considered to be “deceptive” or “unfair” by a jury when that type of conduct has never been considered unlawful under federal and FTC cases interpreting the Federal Trade Commission Act.

It is not suppose to work that way.  The Florida Little FTC Act itself and the Florida Supreme Court requires that the terms “deceptive” and “unfair” be interpreted under the state law to prohibit the same conduct as defined by federal law.  The difficulty is that Courts have not vigorously “screened” cases and dismissed claims that do not fall within the federal standards of deception or unfairness.  Courts often fail to do so reasoning that questions of “materiality” are in “fact” questions for the jury.

These issues are not simply theoretical.  Recently, in a nationwide class action against Porsche, a federal lower court ruled that Porsche’s four year warranty as it applied to the exhaust system, might be “unconscionable” under some state Little FTC Acts.  This was the holding, even though there was no example of any failure before the four year warranty period expired.  How does a court decide that a warranty should be six or eight years, instead of four years?  Certainly, consumers can shop for a car with a longer warranty or buy an extended warranty for almost any car they chose.  State Little FTC Acts are being applied in ways inconsistent with the FTC’s interpretation of the federal statute, creating uncertainty and a lack of a uniform standard.

Why did you decide to practice law?

My father was a lawyer and growing up, I would talk to him about his work.  I was struck how interesting issues came up even in tax cases, and my father’s attitude that his work really helped his clients.  I actually began my education with a degree in American studies with the intention of teaching history.  The economic realities led me to go to law school. After earning my law degree, I worked for the Florida Attorney General’s office and the FTC, and then went on to earn a Masters in Law degree in litigation from Emory.  For some unknown reason, the graduate litigation program was terminated not too long after I graduated.

Tell us a little bit about what you do outside of the office.

I have three grown daughters, who somehow ended up with a bizarre sense of humor and are a bit sarcastic.  My wife Sue, to whom I’ve been married for 31 years, teaches math and science to third graders at an Episcopal School in Seminole County.  When I’m not working, most of my time is spent sending tuition checks to the kids and reading history, a favorite pastime.  I compulsively read history.  My current favorite author is Robert Caro who wrote four books on Lyndon Johnson and a 1200 page book on Robert Moses who controlled most of the public work projects in New York for over forty years.  Caro is a guy who needs some outside interests.

I’m very proud of our daughters – the oldest is an assistant state attorney in West Palm Beach working in the “combat” division.  (I am sure it is not as bad as it sounds.) Our middle daughter is just completing her masters in museum studies and is a photographer. She has interned at the Smithsonian and hopes to land a job in the D.C. area working for a museum.  Her younger sister just graduated from Florida State with a history degree and has also moved to D.C.  She is working as a waitress with her middle sister and has vague ambitions to study for the Law School Admission Test (LSAT), at some indefinite time in the future.