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How Are Lost Profits Calculated Under The FDUTPA?


The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) is a state law that grants parties a private right of action to hold a business or organization legally liable for damages caused by a misleading, unjust, or otherwise unlawful commercial practice. Notably, individual consumers, business consumers, and competing businesses all have the right to sue under the FDUTPA.

The FDUPTA largely limits plaintiffs to recovering for their “actual damages.” In cases initiated by competitors, Florida courts have ruled that “lost profits” are a valid metric that must be considered as part of actual damages. Here, our Miami deceptive & unfair trade practices lawyer explains how lost profits are calculated as a damage under the statute.

Background: Corporate-Competitors Have a Clear Right to Sue Under the FDUTPA 

The FDUTPA is one of Florida’s main consumer protection laws. It was constructed primarily to be consistent with the Federal Trade Commission (FTC) Act. However, unlike with the FTC Act, private parties have the right to file a lawsuit under the FDUTPA. You do not have to wait for state regulators to take action to hold a business liable for deceptive or unfair commercial conduct.

In recent years, courts have clarified that you also do not have to be a consumer (individual or business) to file an FDUTPA claim. Competing businesses—generally called corporate-competitors in court proceedings—have the right to file an FDUTPA lawsuit. Through this type of legal action, a corporate-competitor can seek a remedy for its damages. 

Calculating Lost Profits Under the Florida Deceptive and Unfair Trade Practices Act 

Calculating damages in an FDUTPA claim can be complicated—especially if the case involves a corporate-competitor as a plaintiff. The primary damage sustained by businesses when a competitor engages in deceptive and unfair practices is the loss of profits. Florida courts have ruled that lost profits are recoverable as “actual damages” through a successful FDUTPA lawsuit. While lost profits are often viewed as a “consequential damage”, they can still be recovered as an actual damage in an FDUTPA lawsuit due to amendments made by the Florida legislature.

Only relatively broad guidance has been given for how “lost profits” should be calculated as a damage in an FDUTPA claim. Lost profits are the difference between what a company would have likely earned and what it actually earned due to the competitor’s deceptive and unfair commercial practices. Corporate-competitor plaintiffs seeking to recover lost profits in an FDUTPA claim should be prepared to provide comprehensive evidence connecting their diminished earnings with the defendant’s improper commercial practices.

 Schedule a Confidential Case Evaluation With an Experienced FDUTPA Lawyer

At Pike & Lustig, LLP, we have the skills, legal knowledge, and tenacity to handle all types of deceptive and unfair trade practices cases. If you are a corporate-competitor preparing to file an FDUTPA claim for lost profits, our attorneys are here as a resource. You can rely on our legal team for solutions-focused guidance. From our law offices in Miami, West Palm Beach, and Wellington, we represent clients throughout Southeastern Florida.



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