In 2001, the Florida legislature amended FDUTPA and changed the word “consumer” to “person”. This is what opened the door for businesses to sue. But in spite of that change more than 15 years ago, defendants in FDUPTA cases – and their lawyers – still push the “not a consumer” defense. There’s a reason for that. Because, even to this day, some Florida state trial courts still get it wrong. See, e.g., Bailey v. St. Louis, 196 So. 3d 375 (Fla. 2d DCA 2016) (reversing trial court dismissal of FDUTPA claim and holding competitors have standing). So let’s put this issue to rest: Competitors do, indeed, have standing to sue each other under FDUTPA and can recover actual damages. The bigger question is this: What constitutes “actual damages”?
This is an area rife with confusion and conflicting decisions. Some of the federal trial courts in Florida have opened the door for possible recovery of certain limited types of lost profits under FDUTPA. But case law out of the state appellate courts (which is binding) suggests otherwise. FDUTPA case law prohibits recovery of lost profits and FDUTPA requires actual damages. FDUTPA does not allow for recovery of “consequential damages”. Rodriguez v. Recovery Performance, 38 So.3d 178 (3d DCA 2010). Lost profits are the most common form of consequential damages. damages. See Hardwick Props., Inc. v. Newbern, 711 So. 2d 35, 40-41 (Fla. 1st DCA 1998).
Upshot: Yes, competitors have standing to sue under FDUTPA. Whether or not they should do so depends on the exact nature of the damages at issue.
Pollard PLLC is a litigation boutique based in Fort Lauderdale, Florida and focused on competition law. The firm has experience litigating complex non-compete, trade secret, trademark, and unfair competition claims. The firm’s founder Jonathan Pollard has been quoted on related matters in the New York Times, the Wall Street Journal, Bloomberg, FundFire, Digital Guardian, PBS News Hour and more. For more information, call 954-332-2380.
