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Unravelling the Florida Deceptive and Unfair Trade Practices Act (FDUTPA): A Comprehensive Analysis

by | Apr 6, 2024

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) is a consumer-protection statute designed to “protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.’”

In short, the FDUTPA allows individuals harmed by such actions to seek remedies, including damages, through legal action. In 2001, amendments expanded the scope of who could bring actions under FDUTPA, allowing both consumers and competitors to seek damages for actual harm caused by deceptive acts or unfair practices.

For Florida businesses that fear a competitor might have engaged in unfair practices like false advertising, price fixing, or misrepresenting product quality to gain an advantage, the FDUTPA serves as a protective measure. It ensures that businesses can seek recourse if they fall victim to deceptive tactics or unfair competition, thus maintaining a level playing field in the marketplace.

These damages claims require proof of three crucial elements:

  1. a deceptive act or unfair practice.
  2. causation.
  3. actual damages.

A business could use the FDUTPA to protect its interests if it believes a competitor is engaging in deceptive or unfair practices. For instance, if a competitor falsely claims the superiority of their product over others in the market, causing potential customers to choose their product over the business, resulting in loss of sales and damage to reputation, the business could potentially seek damages under FDUTPA. The business would need to provide evidence demonstrating how the competitor’s deceptive practices directly harmed their business, leading to quantifiable financial losses or other damages.

The Debate over “Actual Damages” under FDUTPA

However, there’s been ongoing debate among courts regarding the definition of “actual damages” under FDUTPA. Some courts have interpreted it narrowly, limiting recovery to the difference in the market value of a product or service as promised and as delivered. Others have allowed broader interpretations, permitting recovery for lost profits or harm to business reputation. To date, however, neither the Florida Supreme Court nor the Florida Legislature has weighed in on what “actual damages” means for recovery of damages in non-consumer cases.

Lost profits are typically considered consequential damages, which may not be recoverable under FDUTPA unless “actual damages” are proven as required by the law. Florida district courts have begun distinguishing between recoverable past lost profits and unrecoverable future lost profits, a distinction considered more commercially reasonable, particularly in cases where competitors suffer losses due to unfair trade practices.

Case Studies for Interpreting Recoverable Damages under FDUTPA

In the case of Factory Direct Tires Inc. v. Cooper Tire & Rubber Co., heard in the Northern District of Florida, the defendant, Cooper, was a tire manufacturer, while Factory Direct distributed and sold these tires through U.S. military base exchanges. The parties entered an agreement subject to automatic renewal every five years. Under this agreement, Cooper agreed to offer competitive pricing and sales support in exchange for Factory Direct’s commitment to accelerate tire sales.

Despite the success of the venture during the renewal term, Cooper insisted on shortening the five-year renewal period. When Factory Direct declined, Cooper began offering competitive pricing to other distributors, diverting opportunities from Factory Direct and leading to a decline in its tire sales. Cooper then claimed that Factory Direct breached the agreement. When Factory Direct filed a lawsuit, Cooper attempted to dismiss the FDUTPA claim by arguing that lost profits were unrecoverable consequential damages. However, the Northern District disagreed with Cooper’s argument. The court found that Cooper’s reliance on cases involving future lost profits was unfounded because Factory Direct was not seeking future lost profits but rather the lost profits it had already experienced. The court ruled that these damages constituted recoverable actual damages under FDUTPA.

Two years later, the Southern District reached a similar conclusion in the case of ADT LLC v. Alarm Protection Technology Florida. In ADT, a company specializing in electronic security services and equipment sued its industry rival, APT Florida, for engaging in tactics aimed at confusing the market. APT Florida’s practices included deceiving customers into believing they were dealing with ADT and persuading them to replace their supposedly outdated ADT security systems with upgraded APT alarms. As a consequence of these actions, ADT incurred significant expenses by sending technicians to reinstall the removed ADT equipment at the homes of customers who had been deceived. Additionally, some customers retained their APT systems and terminated their contracts with ADT. When ADT brought its claim under FDUTPA, APT Florida sought to dismiss it, arguing that ADT couldn’t recover consequential damages as opposed to actual damages.

However, the Southern District disagreed, ruling that ADT had indeed suffered actual lost profits as a result of having to rectify APT Florida’s unfair practices. The court explained that while the typical definition of “actual damages” in a consumer’s FDUTPA claim relates to the difference between the advertised product and its received value, this definition doesn’t apply in a competitor’s claim. Competitors don’t purchase products; instead, they experience losses in business and profits. Therefore, in an FDUTPA case involving a competitor, actual damages consist of the actual lost profits incurred due to unfair trade practices.

Case Studies Against Equating Lost Profits with Consequential Damages

Despite previous cases allowing competitors’ FDUTPA claims based on actual lost profits to withstand dismissal, some courts still equate lost profits with unrecoverable consequential damages. A recent example is the Southern District of Florida’s ruling in Diversified Management Solutions, Inc. v. Control Sys. Research, Inc. In this case, the plaintiff, DMS, and the defendant, CSR, provided contract services to the FAA.

When the FAA limited contract opportunities to small businesses for a renewal cycle, CSR allegedly conspired with its affiliates to secure contracts through “shell” small businesses, causing delays and revenue loss to DMS. DMS sued CSR and its affiliates under FDUTPA, but the court dismissed the claim, arguing that lost profits were akin to consequential damages and thus not recoverable under FDUTPA.

The court emphasized a consumer-case measure of actual damages without fully considering FDUTPA’s 2001 amendment, which allowed broader recovery. Despite DMS’s arguments and relevant authorities supporting the recovery of actual lost profits, the court rejected them, citing post-2001 cases aligning with its conclusion. However, the court failed to cite any case contradicting this stance. Thus, while Diversified dismissed DMS’s FDUTPA claim, the court’s reasoning neglected the legislative intent behind FDUTPA’s amendment and lacked sufficient support from relevant legal precedents.


The FDUTPA stands as a critical legal tool for protecting consumers and businesses from deceptive or unfair trade practices. However, its interpretation in court has led to ongoing discussions, particularly regarding the concept of “actual damages.” While some courts interpret this narrowly, others take a broader view, allowing for compensation beyond just the difference in promised and received value.

Recent cases, like Factory Direct Tires Inc. v. Cooper Tire & Rubber Co. and ADT LLC v. Alarm Protection Technology Florida, indicate a growing trend in Florida courts toward permitting competitors to recover both past and future lost profits due to unfair practices. Nevertheless, challenges persist, as seen in cases like Diversified Management Solutions, Inc. v. Control Sys. Research, Inc., where courts equated lost profits with unrecoverable consequential damages.

As the legal landscape continues to evolve, it remains essential for businesses and consumers alike to stay informed about their rights and options under FDUTPA.

The Campbell Law Group P.A. offers extensive experience in business and commercial litigation, prioritizing the resolution of conflicts without unnecessary legal battles whenever possible.

We proudly serve clients in the South Florida region, including Miami Beach, Coral Gables, Coconut Grove, South Miami, Pinecrest, Brickell, Edgewater, Doral, and Wynwood. We extend our services to Broward and Palm Beach County, as well as clients in Tampa, Orlando, and across the entirety of Florida.


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