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Taubert v. State, Office of Atty. Gen.

Florida Court of Appeal, First District

December 30, 2011

Bernd TAUBERT, Appellant,

Rehearing Denied Feb. 10, 2012.

Page 78

[Copyrighted Material Omitted]

Page 79

Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for Appellant.

Pamela Jo Bondi, Attorney General, and Allison Finn, Assistant Attorney General, Tallahassee, for Appellee.


Appellant challenges a judgment that found him in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) for receiving payments based on phony invoices his company sent to over 1,000 corporations. The order on appeal directed appellant to repay each of the defrauded consumers, totaling $2,587,771.29, and to pay civil penalties in the amount of $2,116,500. In addition, the order directed appellant to repatriate all foreign assets and to provide an accounting within 90 days of all assets located outside the country. On appeal, appellant raises two issues. We affirm, but write to address each issue.

First, appellant argues the trial court erred in denying his motion to dismiss the underlying complaint, asserting the Office of the Attorney General (OAG) erroneously failed to provide the names of the defrauded consumers. However, there exists no procedural rule, statutory provision, or controlling case requiring the OAG to name consumers on whose behalf it is litigating a FDUTPA action.

Section 501.207(1)(c), Florida Statutes (2006), authorizes the OAG to bring an action " on behalf of one or more consumers or governmental entities for the actual damages caused by an act or practice in violation of this part." In addition, section 501.207(3) authorizes a trial court to " make appropriate orders ... to reimburse consumers or governmental entities found to have been damaged." There is no requirement in chapter 501 that the OAG list each allegedly affected consumer. Further, the only civil pleading requirements state the complaint must (1) provide an allegation of ultimate facts which state a cause of action and (2) provide well-pled facts upon which a damage award is based. See Fla. R. Civ. P. 1.110(b) (2006); see also Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231, 1233 (Fla. 1st DCA 1995) (stating a defendant may only be ordered to provide relief for which it specifically prayed) (citing Freeman v. Freeman, 447 So.2d 963, 964 (Fla. 1st DCA 1984)). Here, the complaint meets both of these pleading requirements.

Moreover, none of the legislative notes on the statute evidence that such a requirement was contemplated when the statute was created. Fla. H.R. Comm. on Governmental Operations, HB 1915 (1973) Staff Analysis 1 (final May 3, 1973) (on file with State Archives). There is, however, a stated intent that state enforcement of FDUTPA be consistent with federal enforcement. ยง 501.202(3), Fla. Stat. (2006). The federal government does not require that consumers be named in federal deceptive trade actions. See Maryland v. Universal Elections, 787 F.Supp.2d 408, 418 (D.Md.2011) (holding the federal Telephone Consumer Protection Act does not require the attorney general " include individual names of persons who received calls" ).

The only cited support for appellant's position comes from State ex rel. Reno v. Barquet, 358 So.2d 230 (Fla. 3d DCA 1978). In Barquet, the Third District reversed a motion to dismiss for failure to state a cause of action in a very short opinion. Id. The underlying case arose from the OAG's filing of a FDUTPA complaint alleging defendants had engaged in the unlawful practice of medicine by performing abortions. Id. at 231. The OAG's

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complaint was not included in the opinion; however, the opinion noted that the question before the court was " whether the State Attorney may obtain damages on behalf of the State" pursuant to FDUTPA. Id. In concluding the OAG could not, the court stated in pertinent part:

501.207(1)(c) explicitly provides all actions for actual damages shall be brought on behalf of an aggrieved consumer. The first Complaint was dismissed for failure to name aggrieved consumers and the Amended Complaint does not remedy this omission. The State, in its memorandum to this Court at page 42, states it is not seeking any damages in its own name yet that is what their Complaint expressly requests. It is not possible for both the State and aggrieved ...

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