Fraud and Deceptive Practices
Fierce competition and focus on profit growth is to be expected in a free enterprise market. However, sometimes in the course of business it becomes clear a company is not “playing fair.”
Jacobs Keeley Trial Lawyers know there are many business relationships or deals initiated under false pretenses or through fraud may entitle the affected party to void the deal and possibly recover additional monetary damages. Plaintiffs could be consumers or other companies negatively impacted by fraud or deception.
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) seeks to enforce honesty and fairness in commercial dealings.
Pursuant to F.S. 501.204, unlawful acts and practices include:
- Unfair methods of competition
- Unconscionable acts and practices
- Unfair or deceptive acts
More specifically, these might involve:
- False advertising
- Failure to disclose loan conditions
- Passing off one’s goods or services as those of another
- “Bait-and-switch” advertising
- Interference with another’s contract
- Libel or slander of another company’s products or services
These provisions were modeled on the guidelines set by the Federal Trade Commission (FTC), which polices wrongdoing by corporations. In determining whether a practice is unfair, the FTC relies heavily on the criteria set forth in the 1972 U.S. Supreme Court case of FTC v. Sperry & Hutchinson Co. The criteria includes:
- Unjustified consumer injury. This is injury that is substantial, outweighs consumer benefits and was reasonably unavoidable by consumer.
- Violation of public policy. These can be breaches of actual statutes or common laws.
- Unethical conduct. Generally, conduct is unethical if it is immoral, unscrupulous or oppressive or if it violates general standards of business ethics.
The agency will also determine whether the business acted unfairly with high-pressure or coercive sales tactics, took advantage of vulnerable groups, took advantage of emergency situations, provided unfair provisions in contracts or engaged in any illegal conduct.
The FTC also sets the criteria for what is deemed “deceptive practices.” Those consider whether the action is:
- Misleading or likely to mislead.
- Material, meaning it’s likely to influence consumer choice.
- Consumer perspective, meaning it would be materially misleading to the average consumer, rather than just a few.
Commercial fraud may fall into any of these categories, but it could also involve deception or violation of the law by corporate executives, including the misuse of company funds, false public statements intended to raise stock process or other illegal acts, such as accepting or offering kickbacks or insider trading. Individuals accused of commercial fraud could face criminal charges, as well as civil litigation.
In addition to the Federal Trade Commission Act, there are two other laws that enforce antitrust actions. Those are:
- The Sherman Antitrust Act, which bars competitor agreements that fix prices. It also prohibits monopolization of markets and suppression of competitor goods.
- The Clayton Act, which disallows mergers for the purpose of decreasing competition.
Fraudulent and deceptive business practices might also be actionable under insurance code violations, breach of warranties, pyramid schemes and unfair debt collection.
Even with all this guidance, there is often difficulty in defining unfair and deceptive trade practices. Mere expressions of disappointment aren’t enough to bring a claim. Business practices are sometimes subject to vague or broad interpretations, so the specific circumstances of each case need to be weighed carefully to determine whether the lawsuit is viable.
Disputes brought by individual consumers or companies might be handled either in court or in arbitration. Our experienced commercial litigation attorneys provide deft representation of our clients in both arenas, and are dedicating to fighting for the best possible results in your case.
A successful claimant will be able to recover actual damages, as well as attorney’s fees, compensation for mental anguish and “treble damages” (triple) for deceptive or fraudulent conduct that was carried out knowingly or intentionally. Plaintiffs should only trust their case to an attorney familiar with the law, and who has a proven record of success.
A defendant in fraud or deceptive trade practices action must seek immediate legal counsel from an experienced team of professionals. Without qualified legal advice, an allegation can have the result of ruining one’s career, even if the charges are later dismissed or the individual is found not guilty.
Contact the Miami Business and Consumer Rights Attorneys at Jacobs Keeley Trial Lawyers for a confidential appointment to discuss your rights.
Call us at (305) 358-7991.