Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., d/b/a Better Business Bureau of Southeast Florida And The Caribbean and Council of Better Business Bureaus, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

CARIBBEAN CRUISE LINE, INC.,
Appellant,

v.

BETTER BUSINESS BUREAU OF PALM BEACH COUNTY, INC., d/b/a
BETTER BUSINESS BUREAU OF SOUTHEAST FLORIDA AND THE
CARIBBEAN; and COUNCIL OF BETTER BUSINESS BUREAUS, INC.,
Appellees.

No. 4D13-3916

[June 3, 2015]

SECOND CORRECTED OPINION

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lucy Chernow Brown, Judge; L.T. Case No.
502012CA010670XXXXMB.

John H. Pelzer, Richard W. Epstein, Jeffrey A. Backman and Eric R.
Feld of Greenspoon Marder, P.A., Fort Lauderdale, for appellant.

Tracy T. Segal, Wesley A. Lauer and Richard S. Kozell of Akerman LLP,
West Palm Beach, for appellees.

CONNER, J.

Caribbean Cruise appeals the trial court’s order granting the Better
Business Bureau of Palm Beach County’s1 (“BBB”) motion to dismiss.
After receiving an “F” grade from BBB, Caribbean Cruise filed a complaint
against BBB seeking damages and injunctive relief for defamation and
violation of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”). On appeal, Caribbean Cruise argues that the trial court erred
in granting BBB’s motions to dismiss both counts. We affirm the trial
court’s order dismissing Caribbean Cruise’s defamation count without

1The parent organization for the local chapter was also part of the underlying
suit; however, this appeal concerns only the trial court’s order granting BBB’s
motion to dismiss.
discussion. However, because the trial court erred in determining that (1)
the First Amendment protects against Caribbean Cruise’s FDUTPA claim
and (2) Caribbean Cruise must be a “consumer” in order to have standing
to bring a FDUTPA claim, we reverse the trial court’s order as to that count.

Factual Background and Trial Proceedings Regarding FDUTPA Claim

In its complaint, Caribbean Cruise explained that members of the
public could access BBB’s website, where they would find information
about businesses, including Caribbean Cruise. The public would find (1)
a “BBB rating,” the rating that BBB gave to a business, (2) whether the
business has been “accredited” by BBB, and (3) other background
information regarding the business. Caribbean Cruise alleged that the
BBB website was “often considered the ‘go-to’ source for consumers
seeking to investigate businesses,” and that BBB portrayed itself “as [an]
unbiased, public-interest organization[], that the consuming public relies
on . . . in selecting businesses to utilize and employ.”

Specifically in regard to its FDUTPA claim, Caribbean Cruise alleged
that BBB is deceptive in their practices, including its representation that
it has an unbiased rating system and conducts an adequate investigation
into the businesses for which it rates, when, in fact, it does not. Caribbean
Cruise also alleged that BBB falsely represents that it bases its grade on
sixteen specifically-enumerated factors, and that BBB does not inform the
public that it partially relies on whether a business is “accredited” in
grading that business. A business must pay a sum of money to BBB to
become accredited.

In its motion to dismiss, BBB responded that (1) the fact that BBB’s
statements reflect a pure opinion guarantees First Amendment protection
of the statements from a FDUTPA claim, and (2) FDUTPA is inapplicable
to Caribbean Cruise’s relationship with BBB, since FDUTPA claims protect
consumers and Caribbean Cruise was not in a consumer relationship with
BBB. The trial court agreed, granting BBB’s motion to dismiss, finding
that the First Amendment protects pure opinion from a FDUTPA claim,
and there was no allegation that Caribbean Cruise was a consumer under
FDUTPA.

Appellate Analysis

“[T]he ruling on a motion to dismiss for failure to state a cause of action
is subject to de novo standard of review.” Samuels v. King Motor Co. of Fort
Lauderdale, 782 So. 2d 489, 495 (Fla. 4th DCA 2001) (citation omitted)

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(internal quotation marks omitted). In viewing a cause of action under
FDUTPA,

[t]o state a claim for injunctive and declaratory relief, Plaintiff
must allege that Defendants engaged in a deceptive act or
practice in trade and that Plaintiff is a person “aggrieved” by
the deceptive act or practice. A claim for damages under
FDUTPA has three elements: (1) a deceptive act or unfair
practice; (2) causation; and (3) actual damages.

Kertesz v. Net Transactions, Ltd., 635 F. Supp. 2d 1339, 1348 (S.D. Fla.
2009) (citations omitted) (internal quotation marks omitted). Since the
trial court granted BBB’s motion to dismiss on two grounds, protection
under the First Amendment and Caribbean Cruise’s lack of status as a
consumer, we will discuss each ground.

First Amendment Protection

BBB argued, and the trial court agreed, that its statements were
protected as pure opinion under the First Amendment in regards to the
FDUTPA claim. However, Caribbean Cruise’s argument in support of its
FDUTPA claim is based on representations made by BBB, not the opinions
it issues. Caribbean Cruise alleged that BBB represents it conducts an
investigation into the businesses it grades, but does not; it uses sixteen
factors to determine a grade, but does not; and the complaints it uses are
from customers, when some are not. Caribbean Cruise also alleged that
BBB hides information from the public, in the form of not disclosing how
BBB’s accreditation process affects the grades of businesses. These are
not disputes with opinions issued by BBB, but instead, are disputes with
the representations that BBB makes, and the methods it employs, in
conducting its own business.

Therefore, since Caribbean Cruise’s allegations do not challenge
statements of BBB’s opinions, the First Amendment did not protect BBB
from Caribbean Cruise’s FDUTPA claim, based on the facts as alleged in
the complaint. From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla.
1st DCA 1981). Thus, we reverse as to that ground.

Caribbean Cruise as a Consumer

BBB argued, and the trial court agreed, that since Caribbean Cruise
was not a consumer of BBB’s services, it did not have standing to bring a
FDUTPA claim. Courts are split as to whether an individual or business
must be a consumer in order to bring a valid FDUTPA claim.

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 The main focus on the consumer inquiry, and whether an entity must
be a consumer in order to have standing to bring a FDUTPA claim, involves
the 2001 amendment to section 501.211(2), Florida Statutes. Prior to
2001, section 501.211(2) read:

In any individual action brought by a consumer who has
suffered a loss as a result of a violation of this part, such
consumer may recover actual damages, plus attorney’s fees
and court costs as provided in s. 501.2105; however, no
damages, fees, or costs shall be recoverable under this section
against a retailer who has, in good faith, engaged in the
dissemination of claims of a manufacturer or wholesaler
without actual knowledge that it violated this part.

§ 501.211(2), Fla. Stat. (2000) (emphasis added). After 2001, the section
reads:

In any action brought by a person who has suffered a loss as
a result of a violation of this part, such person may recover
actual damages, plus attorney’s fees and court costs as
provided in s. 501.2105. However, damages, fees, or costs are
not recoverable under this section against a retailer who has,
in good faith, engaged in the dissemination of claims of a
manufacturer or wholesaler without actual knowledge that it
violated this part.

§ 501.211(2), Fla. Stat. (2001) (emphasis added). As can be seen, the
amendment changed who could bring an action from “a consumer” to “a
person.” Additionally, during the same session, the Legislature also
amended section 501.203(7), Florida Statutes, to change the definition of
“consumer” to include a “business” and “commercial entity.” Compare §
501.203(7), Fla. Stat. (2000) (“‘Consumer’ means an individual; child, by
and through its parent or legal guardian; firm; association; joint venture;
partnership; estate; trust; business trust; syndicate; fiduciary;
corporation; or any other group or combination.”), with § 501.203(7), Fla.
Stat. (2001) (“‘Consumer’ means an individual; child, by and through its
parent or legal guardian; business; firm; association; joint venture;
partnership; estate; trust; business trust; syndicate; fiduciary;
corporation; any commercial entity, however denominated; or any other
group or combination.”) (emphasis added).

Since state court decisions regarding FDUTPA claims are rare, see
Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA

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2004), it is instructive to look at the decisions of the United States District
Court analyzing FDUTPA claims.

Holdings from the District Courts are outwardly mixed when it comes
to whether courts require a plaintiff to be a consumer in order to bring a
FDUTPA claim. In looking at post-2001 cases, the Southern District of
Florida described this split in decisions:

There are several cases that support the firm’s argument that
only consumers may sue for damages under FDUTPA. See,
e.g., Kertesz v. Net Transactions, Ltd., 635 F.Supp.2d 1339,
1349-50 (S.D.Fla.2009) (holding that plaintiff, as a non-
consumer, was not entitled to bring a claim for monetary
damages under FDUTPA); Cannova v. Breckenridge Pharm.,
Inc., No. 08-81145-CIV, 2009 WL 64337, at *3 (S.D.Fla. Jan.
9, 2009) (dismissing FDUTPA claim because plaintiff failed to
allege he acted as a consumer in the conduct of trade or
commerce); Goodbys Creek, LLC v. Arch Ins. Co., No.3:07-
cv947-J-33HTS, 2008 WL 2950112, at *8-*9 (M.D.Fla. July
31, 2008) (“Only consumers may bring private suit under
FDUTPA.”).

However, other cases hold that non-consumers may sue under
FDUTPA. . . . Several courts have reasoned that this
amendment [the 2001 amendment] “demonstrates an intent
to allow a broader base of complainants . . . to seek damages”
under FDUTPA. Niles Audio Corp. v. OEM Sys. Co., Inc., 174
F.Supp.2d 1315, 1320 (S.D.Fla.2001) (competitor could seek
damages under newly amended § 501.211(2)); see also North
Amer. Clearing, Inc. v. Brokerage Computer Sys., 666
F.Supp.2d 1299, 1309–10 (M.D.Fla.2009) (declining to grant
summary judgment merely because the plaintiff was not a
consumer); James D. Hinson Elec. Contracting Co., Inc. v.
Bellsouth Telecomms., Inc., No. 3:07–cv–598–J–32MCR, 2008
WL 360803, at *2–*3 (M.D.Fla. Feb. 8, 2008) (“Courts in this
district have held that [the 2001 amendment replacing
“consumer” with “person”] demonstrates a clear legislative
intent to allow a broader base of complainants who have been
injured by violations of FDUTPA to seek damages, not just
injunctive relief.”); True Title, Inc. v. Blanchard, No. 6:06–cv–
1871–Orl–19DAB, 2007 WL 430659, at *3–*4 (M.D.Fla. Feb.
5, 2007); Advanced Protection Technologies, Inc. v. Square D.
Co., 390 F.Supp.2d 1155, 1164 (M.D.Fla.2005); Gritzke v.

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 M.R.A. Holding, LLC, No. 4:01CV495–RH, 2002 WL 32107540,
at *4 (N.D.Fla. March 15, 2002).

Kelly v. Palmer, Reifler, & Assocs., P.A., 681 F. Supp. 2d 1356, 1372-73
(S.D. Fla. 2010) (footnote omitted). In Kelly, the court aligned itself with
the group of cases which held that an entity was not required to be a
consumer in order to have standing to bring a FDUTPA claim. Id. at 1373-
74. This was because the court agreed that the 2001 amendment “served
to broaden the reach of the statute so that more than just consumers could
avail themselves of the protection of this statute.” Id. at 1374.

We agree with the reasoning in Kelly. “It is a well-established
presumption that the legislature intends to change the law when it amends
a statute.” Hill v. State, 143 So. 3d 981, 986 (Fla. 4th DCA 2014).
Therefore, the legislative change regarding the claimant able to recover
under FDUTPA from a “consumer” to a “person” must be afforded
significant meaning. This change indicates that the legislature no longer
intended FDUTPA to apply to only consumers, but to other entities able to
prove the remaining elements of the claim as well.

BBB makes two points in support of its argument that an entity must
be a consumer in order to have standing to bring a FDUTPA claim. First,
is this court’s decision in Beacon Property, and second is our supreme
court’s definitions of terms for the elements of a FDUTPA claim.

First, BBB largely relied upon, and seemingly, so did the trial court, our
holding in Beacon Property. In Beacon Property, we stated that “[a]t least
two state court decisions-rare events in FDUTPA litigation-have held that
business entities may not use FDUTPA for damages actions unless they
involve transactions in which the business entity was itself acting as a
consumer.” 890 So. 2d at 278 (emphasis added). However, although the
decision issued in 2004, the analysis in the case was as to the 1993 version
of section 501.211(2), and the two cases we mentioned were both decisions
issued prior to the 2001 amendment of the statute. Id. Since this holding
was based on the state of the law prior to the 2001 amendment to section
501.211(2), the basis of that holding is no longer applicable based on our
analysis of the statute as amended.

Second, is our supreme court’s definitions of “unfair practice” and
“deception” in conjunction with the first element of a FDUTPA claim. Our
supreme court has defined an “unfair practice” as “one that offends
established public policy and one that is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers.” PNR, Inc. v.
Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (emphasis added)

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(citations omitted) (internal quotation marks omitted). Additionally, it has
defined “deception” as “a representation, omission, or practice that is likely
to mislead the consumer acting reasonably in the circumstances, to the
consumer’s detriment.” Id. (emphasis added) (citation omitted) (internal
quotation marks omitted).

Although these definitions discuss harm in the context of consumers,
neither definition requires that the entity has to be a consumer to have
standing to bring a FDUTPA claim. Therefore, while the claimant would
have to prove that there was an injury or detriment to consumers in order
to satisfy all of the elements of a FDUTPA claim, the claimant does not
have to be a consumer to bring the claim.

We therefore align ourselves with the courts which have held that an
entity does not have to be a consumer in order to have standing to bring a
FDUTPA claim, and we reverse as to the second ground for dismissal used
by the trial court. In support of this holding, we rely on the legislature’s
2001 amendment to section 501.211(2), defining who may bring the claim.

Having reversed the trial court’s order dismissing Caribbean Cruise’s
motion to dismiss on both grounds, we remand the case for proceedings
consistent with this opinion.

Affirmed in part, reversed in part, remanded.

DAMOORGIAN, C.J., and FORST, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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