59 So. 3d 353
Fla. Dist. Ct. App.2011Background
- AG issued civil investigative subpoena to Shapiro & Fishman under FDUTPA to investigate foreclosure-related conduct; subpoena sought broad documents on firm affiliations, servicing relationships, non-disclosure agreements, payments, and compensation.
- Subpoena framed as investigating unfair or deceptive trade practices in advertising/marketing, but did not request information specifically about advertising practices.
- Trial court quashed the subpoena, finding lack of authority under FDUTPA and overbreadth; AG appealed.
- Court reviewed de novo to determine FDUTPA's applicability and whether the subpoena had a nexus to 'trade or commerce.'
- Florida Fourth District held the subpoena lacked connection to 'trade or commerce' and affirmed the quashment; noted alternative statutory avenues could have been used.
- Affirmed quashment; emphasized FDUTPA requires nexus to 'trade or commerce' and that gathering evidence must be moored to the statute used.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does FDUTPA authorize a civil investigative subpoena to a law firm? | Shapiro | Shapiro | No; FDUTPA authority required and not satisfied. |
| Is the subpoena connected to 'trade or commerce' under FDUTPA? | AG relied on FDUTPA's purpose to combat unfair practices in trade or commerce | Conduct here is foreclosure processing, not 'trade or commerce' | No; lacks nexus to 'trade or commerce'. |
Key Cases Cited
- Trent v. Mortgage Electronic Registration Systems, Inc., 618 F. Supp. 2d 1356 (M.D. Fla. 2007) (FDUTPA 'trade or commerce' requirement not satisfied; MERS actions not within statute's scope)
- Kelly v. Palmer, Reifler, & Associates, P.A., 681 F. Supp. 2d 1356 (S.D. Fla. 2010) (pursuit of civil remedies not within 'trade or commerce' scope of FDUTPA)
- Anderson v. Wilson, 289 U.S. 20 (U.S. 1933) (statutory construction: take the statute as written)
- Dalesandro v. Longs Drug Stores Cal., Inc., 383 F. Supp. 2d 1244 (D. Haw. 2005) (settlement/litigation context not 'business context' for trade rules)
- Begelfer v. Najarian, 381 Mass. 177 (Mass. 1980) (pursuit of contractual/legal remedies not 'trade or commerce')