Yes! Competitors Have Standing to Sue in FDUTPA Cases

Background

Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201-213, can be a powerful weapon against unfair business practices. The statute broadly prohibits any, “Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Think about that for a second. While most causes of action require plaintiffs to meet a much more specific standard, plaintiffs in FDUTPA claims can simply assert that the defendant has engaged in unfair or deceptive conduct. Additionally, FDUTPA’s broad attorneys’ fees provision generally allows the prevailing party to recover all of its fees for the entire action – not just the FDUTPA portion – making it an attractive option for many plaintiffs with unfair competition claims.

Legislative History

For years there’s been confusion over whether competitors have standing to sue under FDUTPA. In 2001, the Florida legislature amended the FDUTPA statute, changing the word “consumer” to “person,” opening the door for businesses to sue. However, many defendants in FDUTPA cases still try to assert the “not a consumer” defense, claiming that competitors don’t have standing to bring a FDUTPA claim despite this change in the language of the statute nearly two decades ago.

There’s a reason for that – it’s because some Florida state trial court judges still get it wrong. To put this issue to rest, let’s be clear: Competitors do, in fact, have standing to sue each other under the FDUTPA statute and can recover actual damages. Since we’ve established that competitors have standing to bring a FDUTPA claim, the real question becomes: What are “actual damages” in a FDUTPA action?

What Must You Prove to Assert a Claim?

To state a claim for damages under FDUTPA, the plaintiff must prove: (1) that it was subject to an unfair or deceptive trade practice, (2) causation, and (3) actual damages. While there’s some case law to the contrary, the weight of authority suggests that FDUTPA plaintiffs in the competitor context can recover – at a minimum – past lost profits. See Factory Direct Tires Inc. v. Cooper Tire & Rubber Co., 2011 WL 13117118 (N.D. Fla. Oct. 24, 2011). Additionally, some cases have gone even further, awarding plaintiffs damages for anticipated sales/future lost profits. See Marco Island Cable v. Comcast Cablevision of South, Inc., 312 F. Appx. 211 (11th Cir. 2009).

Key Takeaways:

1. Competitors have standing to sue under FDUTPA.

2. FDUTPA allows the prevailing party to recover its attorneys’ fees for the entire action.

3. Competitors can recover actual damages which almost always include past lost profits and can sometimes include future lost profits.

4. Plaintiffs in in any case involving unfair competition – especially matters involving antitrust, trademark infringement, theft of intellectual property, or false advertising – should also consider bringing a FDUTPA claim.

Rick Duarte is the owner of The Duarte Firm, P.A., where he focuses his practice on business law. He received his law degree from the Emory University School of Law and has been named a “Rising Star” in Business Litigation by Florida Super Lawyers for 2016 – 2019. Rick also serves as general counsel to emerging and medium-sized businesses, guiding clients through corporate governance, risk management issues, and strategic decisions where business and law intersect.