FDUTPA: What Is “Exempt Conduct”?

The Florida Deceptive and Unfair Trade Practices Act or ‘FDUTPA’ is a powerful statute that protects consumers and businesses against fraud and other illegitimate commercial practices. To bring a successful FDUTPA claim, a plaintiff must prove that the defendant engaged in a deceptive and/or unfair trade practice under the act.

Florida law clearly states that an act cannot be considered “deceptive” or “unfair” under the FDUTPA if it falls under the statute’s ‘exempt conduct’ provision. Below, our Miami deceptive & unfair trade practices attorneys explain the most important things you should know about ‘exempt conduct’ under the FDUTPA.

Florida Deceptive and Unfair Trade Practices Act (FDUTPA): Exempt Conduct 

Under Florida law (Fla. Stat. § 501.212(1)), the FDUTPA does not cover “an act or practice required or specifically permitted by federal or state law.” In other words, any commercial act or commercial practice that is explicitly allowed under either federal law or state law cannot be considered an FDUTPA violation in Florida. As long as federal or state law expressly permits certain commercial practices, those practices—even if arguably deceptive or unfair—cannot serve as the basis of an FDUTPA claim in Florida. 

What Constitutes FDUTPA is Not Always So Clear 

The FDUTPA provides considerable protection for consumers, businesses, and organizations in Florida. At the same time, the statute itself does not offer clear definitions for the terms “deceptive” and “unfair.” As a consequence, there are some questions over precisely what constitutes a violation of the statute. The exempt conduct provision found in Fla. Stat. § 501.212(1) ensures that businesses are not liable for specifically permitted activities—but the law is much less clear on what constitutes a violation.

A 2007 decision by the federal United States Court of Appeals for the Eleventh Circuit provides a useful explanation. In the case of Zlotnick v. Premier Sales Group, a man filed an FDUTPA claim related to a dispute over a condo unit set to be built in Boynton Beach, Florida. He alleged that the defendant—a Florida-based real estate company—used deceptive and unfair agreements. In denying the claim, the Eleventh Circuit court emphasized that a plaintiff who files an FDUTPA claim must prove “probable, not possible, deception.”

That a business presents a certain product, service, or transaction in a manner most favorable to itself is not enough to prove a deceptive or unfair practice under Florida law. Instead, an FDUTPA violation occurs when a conduct occurs that is likely to deceive and cause injury to a reasonable consumer. 

Call Our Miami-Dade County, FL Business and Consumer Fraud Lawyers Today

At Pike & Lustig, LLP, our Florida business and consumer fraud attorneys have deep experience handling cases arising under the FDUTPA. If you have questions about the exempt conduct provisions of the law, we are prepared to help. Call us now or get in touch with us through our online contact form for a confidential consultation. We have offices in Miami and West Palm Beach, and our FDUTPA lawyers are more than ready to get started working on your case.