Occasionally, product manufacturers find themselves defending the often overly-pleaded and rarely-proven fraud-based claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). FDUTPA claims are typically pleaded in an effort to leverage exposure to attorneys’ fees. With the right tools, FDUTPA claims may be disposed of in the product manufacturers’ favor. Under FDUTPA, “discretionary” attorneys’ fees are available to the defendant when the plaintiff is unsuccessful. When you are presented with an FDUTPA claim, consider the following:

(1) What constitutes an FDUTPA violation?

FDUTPA provides an avenue to punish a wrongdoer for “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204, Fla. Stat. An FDUTPA violation may be based on any law or statute that “proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.” § 501.203(3)(c), Fla. Stat. In order to establish a consumer claim under FDUTPA, a plaintiff must plead and prove: “(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” See Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1140 (Fla. 3d DCA 2008).

(2) FDUTPA violations are measured objectively

Florida courts use an objective test to determine whether the purported act is deceptive. The plaintiff must show that the “alleged practice was likely to deceive a consumer acting reasonably in the same circumstances.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983-84 (11th Cir. 2016) (quoting State, Office of Att’y Gen. v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253, 1258 (Fla. 1st DCA 2007)). Next, the plaintiff must establish that the purported act is “one that ‘offends established public policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (quoting Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001)). This is obviously a tough standard for a plaintiff to meet, and a product that lives up to its warranty or intended purpose as designed would likely fall short of this rigorous objective standard.

(3) No Damages = No FDUTPA Claim

Failure to plead actual damages precludes an FDUTPA claim from going forward. See, e.g., Rollins, Inc. v. Butland, 951 So. 2d 860, 873 (Fla. 2d DCA 2006) (“The members of the putative class who experienced no actual loss have no claim for damages under FDUTPA.”). Similarly, FDUTPA “does not provide for the recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment.” City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th DCA 2008) (quoting Butland, 951 So. 2d at 873).

(4) The safe harbor provision likely covers most construction products

The safe harbor provision provides that FDUTPA does not apply to “[a]n act or practice required or specifically permitted by federal or state law.” Marrache v. Bacardi, U.S.A., Inc., 17 F.4th 1084, 1098-99 (11th Cir. 2021) (quoting § 501.212, Fla. Stat.). In a construction context, it appears unfathomable that a scenario would exist where a building product would not trigger the safe harbor provision. It’s doubtful that a mechanical pump, stucco mix, HVAC system, or the like would fall into any category other than specifically permitted under state or federal law.

(5) A defendant may move to require plaintiff to obtain a bond

When a defendant believes the FDUTPA action brought against it lacks legal or factual merit or is harassing in nature, it may move to require plaintiff to obtain a bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorneys’ fees. See § 501.211(3), Fla. Stat. “The purpose of requiring a bond is to provide defendants an opportunity for redress for harassment rather than to discourage plaintiffs from seeking access to the courts.” Hamilton v. Palm Chevrolet-Oldsmobile, Inc., 366 So. 2d 1233, 1234 (Fla. 2d DCA 1979). Oftentimes in the construction context, a plaintiff’s FDUTPA claim is nothing more than a leverage play, and moving for a bond may keep the parties honest and make the plaintiff think twice about further pursuing a frivolous claim.

(6) Factors to consider in determining the prevailing party’s attorneys’ fees entitlement

Florida’s Fourth District Court of Appeal recently clarified the issue of entitlement to a prevailing party’s attorneys’ fees under FDUTPA. The trial court has the discretion to award or not award attorneys’ fees to the prevailing party. In order for the trial court to exercise its discretion, an evidentiary hearing on fees must be conducted. See Forte v. All Cty. Towing Inc., 336 So. 3d 316, 319 (Fla. 4th DCA 2022). At the fee hearing, the trial court will consider various factors which may include, but are not limited to: (1) the scope and history of litigation; (2) the ability of the opposing party to satisfy a fee award; (3) whether a fee award would deter others from acting in similar circumstances; (4) the merits of the respective positions, including the degree of the opposing party’s culpability or bad faith; (5) whether the claim brought was frivolous, unreasonable, or groundless; (6) whether the defense raised a defense mainly to frustrate or stall; and (7) whether the claim was brought to resolve a significant legal question under FDUTPA.