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1. Misrepresentation of a material fact;
2. The person knew or should have known that the fact was being misrepresented;
3. The person intended to induce the other reliance; and
4. The other’s justifiable reliance caused him to suffer damages.

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1. Misrepresentation of a material fact;
2. The person knew or should have known that the fact was being misrepresented;
3. The person intended to induce the other reliance; and
4. The other’s justifiable reliance caused him to suffer damages.

Florida Statutes: §817.40, Fla. Stat. (2023) (False, misleading and deceptive advertising and sales; definitions); §817.41, Fla. Stat. (2023)(Misleading advertising prohibited).

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FLORIDA STATE COURTS

Fifth District: Joseph v. Liberty Nat. Bank, 873 So. 2d 384, 388 (Fla. 5th DCA 2004).

FLORIDA FEDERAL COURTS

Southern District: Burton v. Carnival Corp., No. 23-CV-24604, 2024 WL 3829964, at *3 (S.D. Fla. Aug. 15, 2024); Colonial Van Lines, Inc. v. Colonial Moving & Storage, LLC, 2020 WL 6700449, *4 (S.D. Fla. Oct. 20, 2020); Storm v. Carnival Corp., 2020 WL 6293346, *3 (S.D. Fla. Sept. 10, 2020); Adams v. Carnival Corp., 482 F. Supp. 3d 1256, 1264 (S.D. Fla. 2020).

Middle District: Era Organics, Inc. v. Erbaviva, LLC, 2019 WL 13063471, *1 (M.D. Fla. Mar. 8, 2019); Westgate Resorts, Ltd. v. Reed Hein & Associates, LLC, 2018 WL 5279156, *8 (M.D. Fla. Oct. 24, 2018); Arthrex, Inc. v. W. Coast Med. Res., LLC, 2015 WL 12844946, *6 (M.D. Fla. Nov. 25, 2015); Argentine v. Bank of Am. Corp., 2015 WL 3547141, *3 (M.D. Fla. June 8, 2015).

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2 Defenses to Claim for Misleading Advertisement

(1) R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: 95.11(3)(f), Fla. Stat. (four years); Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1093 (Fla. 5th DCA 2011).

(3) “[O]ne who seeks by civil suit to vindicate a violation of the statute as a private wrong must show that the wrong was the proximate cause of his injury or damage, and proof of reliance is necessary in order to prove the causal connection.” Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1370 (Fla. 4th DCA 1981)(emphasis added).

(4) “[T]he existence a merger clause does not prevent a cause of action for fraud.” Hahamovitch v. Delray Prop. Investments, Inc., 165 So. 3d 676, 682 (Fla. 4th DCA 2015)(emphasis added).

(5) A Plaintiff must prove that the advertisement was the cause of the plaintiff’s damage. Plaintiff must show that he or she relied on the advertisement. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1370 (Fla. 4th DCA 1981).

(6) “A misleading advertisement claim is subject to the heightened pleading standard defined by Federal Rule of Civil Procedure 9(b), requiring a plaintiff to establish the ‘who, what, when, where, and how’ of the fraud.” Burton v. Carnival Corp., No. 23-CV-24604, 2024 WL 3829964, at *3 (S.D. Fla. Aug. 15, 2024)(citing Barham v. Royal Caribbean Cruises Ltd., 556 F. Supp. 3d 1318, 1325-26 (S.D. Fla. 2021)); see also Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006).

(7) “If a complaint alleges that a business made an allegedly misleading advertisement by making an offer or promise which the advertiser did not intend to keep, the complaint properly alleges claims for violations of FDUTPA.” Hirsh v. Silversea Cruises Ltd. (Inc.), 2015 WL 12780626, *8 (S.D. Fla. Mar. 5, 2015)(citing Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1322 (M.D. Fla. 2002))(emphasis added).

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