282 So.3d 911
Fla. Dist. Ct. App.2019Background
- Waste Pro charged an "environmental fee" (percentage-based) to Florida customers beginning in 2009; Vision Construction alleged the fee was deceptive because proceeds were retained by Waste Pro rather than used to offset regulatory environmental costs.
- Vision sued under FDUTPA and unjust enrichment and moved to certify two classes: customers who paid the fuel surcharge and customers who paid the environmental fee; the trial court certified only the environmental-fee class (2011 to notice date).
- Evidence showed uniform labeling of the charge as an "environmental fee," website language suggesting the fee supported environmental compliance, corporate witnesses could not tie the fee to discrete tracked environmental costs, and at least one fee increase tracked competitors rather than cost analysis.
- Waste Pro produced evidence that regional managers had discretion to waive/modify the fee and that some customers had been told different things or saw different contract language over time.
- The trial court found common questions predominated for the environmental-fee class, that Vision met Rule 1.220 requirements, and that damages could be measured class-wide as fees retained by Waste Pro; this appeal challenges certification and the court's "rigorous analysis."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance for class certification under Fla. R. Civ. P. 1.220(b)(3) | The label "environmental fee" is a uniform misrepresentation likely to deceive a reasonable consumer; common proof will establish liability class-wide. | Individualized inquiries into each customer's sophistication, negotiations, and differing disclosures predominate, defeating class treatment. | Affirmed: common questions predominate because Waste Pro made the same representation to all payors and did not inform class members the fee was not tied to environmental costs. |
| Damages methodology under FDUTPA | Damages are measurable class-wide as the amounts of environmental fees retained (misrepresented pass-through). | Damages will be individualized because each class member’s economic choices and alternatives vary. | Held: damages here are the fees retained and thus susceptible to generalized proof, not highly individualized. |
| Relevance of individualized disclosures and employee discretion | Vision: no evidence of disclosures that informed customers the fee was not for environmental regulatory costs; isolated discretion to waive/modify does not negate uniform misrepresentation. | Waste Pro: sales reps and regional VPs made varying disclosures and had autonomy, creating individualized issues about what each consumer understood. | Held: record did not show different representations that would defeat predominance; employee discretion on imposing the fee does not change the uniform deceptive label. |
| Rigorous analysis requirement for certification order | Vision: trial court held a three-day hearing, considered testimony/affidavits, and issued a reasoned 33-page order. | Waste Pro: court ignored key evidence and made conclusory findings, failing the required rigorous analysis. | Held: affirmed—the court conducted a thorough, reasoned analysis supported by the record; findings were not merely conclusory. |
Key Cases Cited
- Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011) (standard for class-certification review and requirement of rigorous analysis)
- Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006) (elements of FDUTPA damages and class-certification burdens)
- Carriuolo v. Gen. Motors, 823 F.3d 977 (11th Cir. 2016) (FDUTPA deception uses an objective test of likelihood to deceive a reasonable consumer)
- Pop's Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677 (S.D. Fla. 2008) (where varying prior disclosures and negotiations exist, individualized issues can defeat predominance)
- Egwuatu v. South Lubes, Inc., 976 So. 2d 50 (Fla. 1st DCA 2008) (class certification denied where varied company disclosures and customer knowledge required individualized inquiries)