Can a consumer contract waive or cut off the customer's Florida Deceptive and Unfair Trade Practices Act remedies?
What the Florida Supreme Court has decided is narrow: where a class-action waiver sits in an arbitration agreement, the Federal Arbitration Act preempts invalidating that waiver on the ground that it is void as against Florida public policy, in a case brought under FDUTPA and other remedial statutes (McKenzie Check Advance v. Betts). The Court held that, even if the waiver were void under state public policy, it was without authority to invalidate it on that basis; it quashed the Fourth District's decision and declined to answer the certified question as moot. Four justices joined the opinion with the author and two more concurred in the result only.
The trap
The Fourth District had held the class-action waiver void as against Florida public policy on a record that included attorney testimony that lawyers would not take such small consumer claims individually. After McKenzie that argument is foreclosed for arbitration agreements, because Concepcion rejected it. Do not over-read the row the other way: McKenzie is an arbitration/FAA preemption holding. It does not decide whether FDUTPA rights may be waived outside an arbitration agreement. A search of the Florida Deceptive and Unfair Trade Practices Act part turned up no section forbidding waiver of FDUTPA rights; a section nobody could find is a gap in the published text, not a Florida rule that the rights are waivable.
5 authorities
- case112 So. 3d 1176McKenzie Check Advance of Florida, LLC v. BettsFla.decided 2013-04-11read it at the source ↗
The words that state the rule
We conclude that the basis for invalidating the class action waiver propounded by Kelly based on the facts of this case is foreclosed by Concepcion. CONCLUSION In light of the United States Supreme Court’s recent decision in Concepcion, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of the waiver being void as against public policy. Accordingly, we quash the Fourth District’s decision below and decline to answer the certified question as it is now moot. It is so ordered. QUINCE, CANADY, LABARGA, and PERRY, JJ., concur. POLSTON, C.J, and LEWIS, J., concur in result.
- case112 So. 3d 1176McKenzie Check Advance of Florida, LLC v. BettsFla.decided 2013-04-11read it at the source ↗
The words that state the rule
The plaintiffs asserted claims based on the Florida lending practices statute (chapter 687), Florida Consumer Finance Act (chapter 516), Florida Deceptive and Unfair Trade Practices Act (chapter 501) (FDUTPA), and the Florida Civil Remedies for Criminal Practices Act (chapter 772) (FCRCPA).
- case112 So. 3d 1176McKenzie Check Advance of Florida, LLC v. BettsFla.decided 2013-04-11read it at the source ↗
The words that state the rule
In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.
- case112 So. 3d 1176McKenzie Check Advance of Florida, LLC v. BettsFla.decided 2013-04-11read it at the source ↗
The words that state the rule
The Fourth District recognized that the contract “preserved [Kelly’s] substantive rights,” id. at 619 , but reasoned that the class action waiver violated the public policy of FDUTPA and FCRCPA because the inability to bring a class action suit against MCA would “eviscerate the remedial purposes of the relied-upon statutes. Only with the availability of class representation would consumers’ rights in these payday loan transactions be vindicated.” Id. at 623 .
- case112 So. 3d 1176McKenzie Check Advance of Florida, LLC v. BettsFla.decided 2013-04-11read it at the source ↗
The words that state the rule
The rule suggested by Kelly and the Fourth District would encompass all cases in which a plaintiff presented expert testimony from attorneys that they “would not represent consumers in individual small claims suits.” McKenzie, 55 So.3d at 623 . This would be, in effect, based on whether the claims were too small for attorneys to accept on an individual basis — an argument squarely rejected in Concepcion as a basis on which to require class procedures.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.