Tuesday, November 17, 2015

FYI: Fla App Ct (1st Dist) Allows "Picking Off" Putative Class Plaintiff, But Holds Injunctive Relief Claims Survived

The District Court of Appeal of the State of Florida, First District, recently held that providing a putative class representative with complete monetary relief mooted his individual and putative class claims for damages and attorney's fees, but did not moot his individual or putative class claims for declaratory and injunctive relief under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).


A copy of the opinion is available at:  https://edca.1dca.org/DCADocs/2014/4256/144256_DC08_11062015_091520_i.pdf


The plaintiff received emergency medical treatment from a hospital in September 2013. Lacking health insurance for the medical care, he received a bill for $5,953.26. After paying $330 of the bill, the plaintiff found fault with the charges and launched a class action alleging the amounts charged by the hospital to him and other uncovered patients was unreasonable in light of the services provided and the rates charged to patients who had appropriate health insurance coverage for the same services.


Before the plaintiff requested class certification, the hospital moved for summary judgment and advised that it had waived the plaintiff's remaining balance, and also offered to have the court assess appropriate attorney's fees and costs against it.  The trial court granted summary judgment and dismissed the complaint.  This appeal followed.


The Appellate Court agreed that the plaintiff's claims for breach of contract, breach of implied covenant of good faith, and monetary damages under § 501.211(2) of the FDUTPA were mooted by the hospital's waiver of the balance due and offer to pay the plaintiff's attorney's fees and costs.  It also rejected the plaintiff's argument that, although these claims are moot, he continued to have standing as a class representative.


The Court commented that, although a majority of federal courts hold that a defendant cannot "pick off" a class representative prior to class certification by mooting a claim, as a Florida state court interpreting state law, the Appellate Court was compelled to follow Florida Supreme Court precedent established in Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011).


In Sosa, the Florida Supreme Court held that before a class can be certified, the class representative must have standing -- meaning the plaintiff must show that an actual controversy exists between him or her and the defendant that will continue throughout the existence of the litigation.


The Appellate Court here held that the hospital's debt waiver and offer to pay attorney's fees and costs left no actual controversy on the breach of contract and breach of implied covenant claims, such that the plaintiff could not satisfy this burden and lacked standing on behalf of the class.


Moving on to the plaintiff's claim for monetary damages under the FDUTPA, the Appellate Court noted that § 501.211(2) of the FDUTPA entitles an aggrieved party who has "suffered a loss as a result of a violation of this part" to recover "actual damages, plus attorney's fees and court costs."  Reasoning that the plaintiff's entitlement to actual damages was satisfied by the waiver of his balance and by the hospital's agreement to pay attorney's fees and costs, the Court agreed with the trial court that his claims were mooted in this regard and thus the plaintiff lacked standing on behalf of a class.


However, the Appellate Court held that the plaintiff continued to have a claim for declaratory and injunctive relief under § 501.211(1) of the FDUTPA. This section provides that "without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part."


The hospital argued that the plaintiff was not "aggrieved" as required by this section because, having waived the balance and agreed to pay his attorney's fees and costs, the plaintiff suffered no loss and had no actual damages.


The Appellate Court disagreed. The term "aggrieved," the Court reasoned, indicated an intentional legislative distinction and it would not read it as the equivalent of having "suffered a loss."


Citing its prior decision in Davis v. Powertel, Inc., 776 So. 2d 971, 975 (Fla. 1st DCA 2000), the Court reasoned that the plaintiff may pursue his claims as "an aggrieved party" even if the relief would only be to protect "consumers who have not yet been harmed by the unlawful trade practice."


In concluding that a party is not required to have suffered "actual damages" to obtain FDUTPA injunctive relief, the Court pointed out that for someone to be aggrieved under the FDUTPA "the injury claimed to have been suffered cannot be merely speculative." The Court further determined that due to the language of § 501.211(1) governing declaratory and injunctive relief, the offending conduct need not be continuing to create a cause of action, rather there must be a demonstration of a specific past, present or future grievance.


Although the plaintiff's individual and putative class claims for FDUTPA injunctive relief remained viable, the issue of whether the plaintiff had been "aggrieved" was not resolved. The Appellate Court sent this question back to the trial court.





Ralph T. Wutscher
Maurice Wutscher LLP
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