The FTC's 1980 Definition Of Unfair Trade Practice Applies To FDUTPA Actions

The Third District Court of Appeals recently held, on a matter of first impression, that the Federal Trade Commission's ("FTC") definition of "unfairness" contained in the 1980 Policy Statement on Unfairness applies to actions brought under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). In Porsche Cars North America, Inc. v. Diamond, 140 So. 3d 1090 (Fla. 3d DCA 2014), the plaintiffs brought a putative class action alleging the distributor of "high intensity discharge headlights" acted unfairly under the FDUTPA by profiting from distributing a product that was highly susceptible to theft without taking remedial steps and failing to notify owners of the potential risk of theft. The trial court certified the class using the definition of "unfair" from the 1964 FTC Policy Statement which defined an "unfair trade practice" as one that "offends established policy" and "is immoral, unethical, oppressive, unscrupulous or substantially injurious to customers." On appeal...