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Article Excerpt
This article identifies three categories of "per se" violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), F.S. Ch. 501, Part II, with respect to what the text of FDUTPA indicates may be a basis for a statutory violation. It also sets forth several advantages to finding and alleging per se violations of FDUTPA.
FDUTPA broadly declares in [section] 501.204(1) that "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. By design, FDUTPA does not contain a definition or "laundry list" of just which acts can be "deceptive," "unfair," or "unconscionable." No specific rule or regulation is required to find conduct unfair or deceptive under the statute. (1)
There is, however, an entire body of state and federal rules, ordinances, and statutes which serves to identify specific acts that constitute automatic violations of FDUTPA's broad proscription in [section] 501.204(1). These rules, ordinances, and statutes, if violated, constitute "per se" violations of FDUTPA, and could automatically expose parties to actual damages, injunctions, and civil penalties up to $15,000 per violation. An assessment of potential per se FDUTPA violations, therefore, should play a part in any commercial law practice, and is imperative for any lawyer bringing or defending against a claim for deceptive or unfair trade practices.
Approaches to FDUTPA Liability
There are two basic approaches to analyzing FDUTPA liability: one is to determine whether an act or practice in trade or commerce violates broadly worded standards relating to unfairness, deception, unconscionable acts or practices, or unfair methods of competition; a second is to assess whether conduct in trade or commerce constitutes a per se violation. (2)
* The Standards Approach
As a statute of reference, FDUTPA contains broad proscriptions and then points to interpretations and other bodies of law to give guidance on what may be considered in determining liability under the statute. Along these lines, FDUTPA tracks the broad language of the Federal Trade Commission Act (FTC act) (3) and declares "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce" to be unlawful. Subsection 501.204(2) of FDUTPA in turn provides that "due consideration and great weight" be given interpretations by federal courts and the Federal Trade Commission of what constitutes unfairness and deception. In interpreting the terms "unfair" and "deceptive," the FTC and federal courts have found violations of the FTC act with reference to certain broadly worded standards of unfairness and deception which apply across industries to differing fact patterns. Based on FTC interpretations and federal case law dating from the 1960s, Florida courts have adopted and applied in various contexts a broadly worded standard of unfairness under which a practice is unfair, "if it offends public policy and is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." (4)
* The Per Se Approach
Conceptually, the per se approach to FDUTPA liability embraces the notion that an act or practice in trade or commerce may be "unfair," "deceptive," or "unconscionable," because it violates a predetermined guideline embodying public policy or morality, or because it violates a predetermined guideline meant to protect consumers from injury. A per se violation occurs where conduct violates a specific guideline in the form of a statute, ordinance, or rule and a violation of that guideline in turn automatically or"per se" constitutes a violation of FDUTPA. The violation is said to be "automatic" or "per se" because the statute, ordinance, or rule constitutes a previously determined identification of specific unfair, deceptive, or unconscionable conduct, and, when violated, automatically states a FDUTPA violation, without the necessity of a full-blown analysis of the conduct in light of broader standards of unfairness or deception.
Legislative Acknowledgment
In 1993, the Florida Legislature formally acknowledged the per se approach in redefining the term, "violation of this part" in [section] 501.203(3) of FDUTPA, which now specifically refers to sources upon which a litigant may base an alleged FDUTPA violation. (5) Subsection 501.203(3)(b) acknowledges the federal standards of unfairness and deception as a basis for violations. Subsection 501.203(3) in turn addresses per se violations beginning with the lead-in phrase to [section] 501.203(3) which provides that "Violation of this part" means any violation of ... the rules adopted under this act." Subsections (a) and (c) of [section] 501.203(3) further state: Violation of this part ... may be based upon any of the following as of July 1, 2001: (6)
(a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15 U.S.C. ss. 41 et seq.
[or]
(c) Any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. (7)
Categories of Per Se Violations
The rules, regulations, ordinances, and statutes referenced in the above-quoted [section] 501.203(3) refer to sources which may...
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