In Continental 332 Fund, LLC, et al. v. Albertelli Construction Inc., et al., the Middle District of Florida analyzed Albertelli Construction, Inc.’s (“Albertelli”) claims against third-party defendant Continental Properties Company, Inc. (“Continental”) 2019 WL 2009369 (M.D. Fla. 2019). General contractor Albertelli filed third-party claims against Continental, one of which alleged a violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Continental then filed a motion to dismiss, arguing that that Albertelli, a business, did not have standing to bring a claim under the FDUTPA.

In the underlying case, the Owners of several apartment construction projects sued some of the contractors and subcontractors, which included Albertelli, alleging they conducted a fraudulent scheme for the purpose of siphoning off millions of dollars. Some of those contractors and subcontractors countersued for nonpayment, after which Defendant Albertelli filed its third-party claims.

Continental owned and managed sub-entities that own the apartment complexes. Albertelli was the general contractor for each of the apartment complexes.

In its Third-Party Complaint, Albertelli alleged that Continental violated the FDUTPA by duping it into performing extra work by surreptitiously replacing part of a contract. Albertelli alleged it did not discover any deception until after it executed the contract.

Continental argued that a non-consumer can bring a claim only if it alleges injury to consumers. Albertelli responded that the Florida legislature eliminated the “consumer” requirement when it replaced “consumer” with “person” in the provision.

Federal district courts in Florida are split between a conservative view and a permissive view of interpreting amended statutes. The conservative view extends FDUTPA protection only to persons who were deceived when buying or selling goods and services. The permissive view extends FDUTPA protection to any person injured by a deceptive or unfair practice, regardless of whether she sustained the injury in a sale or purchase.

In ruling on the Motion, the Middle District of Florida upheld the permissive view, following statutory instruction to construe the provision liberally and promote its policy goals, which include protecting “the consuming public and legitimate business enterprises” from deceptive acts. The Court concluded the provision is clear that the Florida legislature did not intend to protect only those who purchase something. Continental’s Motion to Dismiss was denied.

This case supports liberal interpretation of FDUTPA in the Eleventh Circuit, despite the limited interpretation of Florida Law. While traditionally these acts only protected consumers, courts seem to be moving towards broader applicability that will support deceptive trade claims by businesses.