Enforcement of FDUTPA by Competitors: Did the Florida Legislature Create a Right Without A Remedy?

In 2001, a law in Florida was changed to allow businesses to sue their competitors for unfair competition. Before that, the law was mainly used by consumers to get their money back from bad sellers. Now, it’s unclear what “actual damages” means for business competitors, and the courts are divided on the issue. So, it’s uncertain if businesses can actually get money from their competitors under this law. If someone wants to sue under FDUTPA for money, they have to show that they were hurt by a deceptive or unfair act, that the act caused their damage, and that they actually lost money. In the past, courts measured the actual damages by comparing what a person got to what they should have gotten. But after a change in the law, businesses can also sue and their damages might be lost sales, profits, reputation, or customer goodwill. Some courts say businesses can’t sue for these types of damages, but others think they should be allowed to. The 2001 change to a law in Florida was meant to include business competitors as plaintiffs in certain cases. A recent court decision confirmed that competitors can sue for damages under this law, but it did not explain how they can do that. This makes it difficult for non-consumer plaintiffs to recover their lost profits in lawsuits. In Florida, courts are starting to allow businesses to claim damages for lost profits caused by unfair competition, even though lost profits are usually considered not recoverable. This means that if a business can show that they lost money because a competitor did something unfair, they might be able to get that money back in court. Some recent court cases have allowed businesses to seek damages for things like having to fix problems caused by the competitor, losing customers or contracts, losing out on a benefit from a contract, and missing out on potential future sales. This is a big change in the law, and it’s making it easier for businesses to recover money when they’ve been harmed by unfair competition. In Marco Island, the cable company sued its competitor Comcast for unfair business practices. The court found that Comcast’s actions, like overcharging customers and misleading them, caused harm to the cable company’s business. The court awarded the company $800,000 in damages, and the decision was upheld on appeal. This case shows that a business can recover for lost future profits due to unfair competition. The court in Diversified Management Solutions v. Control Systems Research said that lost profits are not considered “actual” damages under FDUTPA, a law that protects against unfair business practices. The court relied on older cases and didn’t consider a newer amendment to the law. But there are other cases that say lost profits can be recovered under the law. The court’s decision may not be supported by Florida state law or by previous court decisions. The 2001 amendment to FDUTPA was meant to help business competitors, like companies and employers, by allowing them to get compensation for the harm caused by unfair business practices. But there’s still some uncertainty about what types of compensation they can get. Some courts have said they can get compensation for lost profits, while others haven’t. This needs to be cleared up by the Florida Supreme Court or the Florida Legislature so that businesses have a clear understanding of their rights. FDUTPA allows anyone who has been hurt by a violation to take legal action to stop the violation and get a court ruling that it breaks the law. You don’t have to show actual damages to get this kind of legal help. This is shown in cases like Bailey and Factory Direct. The court can also award lost business and profits to a competitor who was harmed by the violation, as seen in the case of ADT. This is a legal case where the court dismissed a claim by a business competitor for lost profits. The court said the competitor didn’t have enough evidence to prove their claim. The court cited other similar cases to support its decision. Lawyers Tracey K. Jaensch and Viktoryia Johnson from the law firm FordHarrison LLP wrote a column for the Labor and Employment Law Section. They discussed various court cases related to business disputes, but the details are pretty complicated. The Florida Bar wants its members to understand the importance of doing their job well and helping the public. They also want to make sure the legal system is fair and constantly improving.

Source: https://www.floridabar.org/the-florida-bar-journal/enforcement-of-fdutpa-by-competitors-did-the-florida-legislature-create-a-right-without-a-remedy/