169 So. 3d 164
Fla. Dist. Ct. App.2015Background
- Caribbean Cruise challenged BBB's dismissal of its FDUTPA and defamation claims after BBB gave it an F rating.
- BBB argued the FDUTPA claim was protected by the First Amendment as pure opinion and that Caribbean Cruise lacked consumer status to sue.
- Caribbean Cruise alleged BBB misrepresented its investigative rigor, relied on sixteen factors, and conditioned accreditation on fees, misleading the public.
- Trial court dismissed both counts, ruling First Amendment protected BBB's statements and Caribbean Cruise wasn’t a FDUTPA consumer.
- Appellate court reversed on the FDUTPA standing issue but upheld dismissal on defamation; remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does First Amendment protection bar FDUTPA claim here? | Caribbean Cruise: BBB's representations, not opinions, violate FDUTPA. | BBB: statements are pure opinion protected by the First Amendment. | First Amendment protection does not bar the FDUTPA claim based on allegations. |
| May a non-consumer entity sue under FDUTPA after 2001 amendment? | Caribbean Cruise may sue; statute expanded to ‘person’ and business entities. | BBB: only consumers may sue; Caribbean Cruise not a consumer. | Entity may sue under FDUTPA; standing extends beyond consumers. |
| What is the appellate disposition regarding FDUTPA and defamation claims? | Caribbean Cruise seeks relief on both claims; FDUTPA standing supports reversal. | BBB seeks dismissal of FDUTPA on multiple grounds; defamation dismissal valid. | Affirmed in part (defamation), reversed in part (FDUTPA standing) and remanded. |
Key Cases Cited
- Beacon Property Mgmt., Inc. v. PNR, Inc., 842 So.2d 773 (Fla. 2003) (definitions of unfair practice and deception in FDUTPA context)
- Kelly v. Palmer, Reifler, & Assocs., P.A., 681 F.Supp.2d 1356 (S.D. Fla. 2010) (allows non-consumers to sue under FDUTPA after 2001 amendment)
- Niles Audio Corp. v. OEM Sys. Co., Inc., 174 F.Supp.2d 1315 (S.D. Fla. 2001) (illustrates broadstanding post-2001 amendment)
- Kertesz v. Net Transactions, Ltd., 635 F.Supp.2d 1339 (S.D. Fla. 2009) (discusses FDUTPA standing concepts in southern district)
- North Amer. Clearing, Inc. v. Brokerage Computer Sys., Inc., 666 F.Supp.2d 1299 (M.D. Fla. 2009) (considers broader plaintiff base under FDUTPA)