I have published numerous articles in legal journals, primarily in the area of deceptive and unfair trade practices and Antitrust. While many are focused on Maryland’s and Florida’s statutes prohibiting such practices, their content is also applicable in large part to other states’ analogous laws. I have also been appointed to a term as Chairman of the Editorial Board of The Florida Bar Journal. For the full text of the article, please click on the title.
“The Unexplored Territory of Unfairness in Florida’s Deceptive and Unfair Trade Practices Act,” The Florida Bar Journal, May 1999.
This article discusses the types of practices covered by, and legal criteria for determining, whether a commercial practice is unfair under Florida’s “little FTC act.” That statute protects both individual and business consumers, but its unfairness prong has been infrequently used. The criteria include substantial consumer injury, lack of greater offsetting benefits to consumers or competition, and inability of consumers reasonably to avoid the injury. They are derived from analogous criteria employed in construing the Federal Trade Commission Act (“FTC Act”), upon which the Florida law is modeled. Relevant decisions under the FTC Act and other state little FTC acts are reviewed.
The article was cited by Florida’s Court of Appeals for the Third District in Millenium Communications, et al. v. Office of the Attorney General, 761 So. 2d 1256 (Fla. App. 3 Dist. 2000).
“Little FTC Act Claims Are Some Big Deal,” The National Law Journal, July 5, 1999 (In Focus: Health Care section).
This article discusses how the “little FTC acts,” i.e., consumer protection acts, of the various states have been employed successfully in litigation by patients and other health care consumers against health care providers. In some cases, though, physicians and even insurers have been permitted to seek relief under the acts. The article also discusses the limits on the use of those statutes in the health care field.
“The Unclear Scope of Unconscionability in FDUTPA,” The Florida Bar Journal, July-August 2000.
This article analyzes the Florida little FTC act’s prohibition on “unconscionable” acts and practices. It concludes that, aside from reference to other independent Florida statutes that label practices as “unconscionable,” the term is excessively vague and the legislative history too unclear to permit a court to determine what the legislature meant to prohibit by its use.
This article has also been cited in Millennium Communications, et al. v. Office of the Attorney General, as well as in two legal treatises: Singer, Statutes and Statutory Construction (Sutherland), 2002 Rev. and 2002 Cum. Supp. to 2001 Rev., and Florida Jurisprudence 2d, 1979, 2001 Cum. Supp.
“Florida and Federal Protection of Privacy in E-Commerce,” The Florida Bar Business Law Section Quarterly Report, February 2001.
This article discusses federal statutory protection of personal information under the federal Computer Fraud and Abuse Act, the Financial Privacy Act, the Electronic Communications Privacy Act and the Children’s Online Privacy Protection Act. It also reviews how the FTC has used the FTC Act to attack deceptive and unfair trade practices by website operators and others in obtaining, handling, disclosing and using personal financial and other private information furnished by consumers. It analyzes the applicability of that federal precedent to potential actions by individuals under the state’s little FTC act, as well as the limits of privacy protection available under other state statutes and state common law.
“Halting Unauthorized Access to Personal Data,” The National Law Journal, March 5, 2001 (In Focus: Computer Law section).
This article covers similar ground on privacy in e-commerce, and discusses reported court decisions under the federal communications privacy and computer abuse statues, as well as administrative actions in the area taken by the FTC.
“Obtaining Relief for Deceptive Practices Under FDUTPA,” The Florida Bar Journal, November 2001.
This article discusses the standards for proving that a practice is deceptive under Florida’s little FTC act, and for consumers to obtain monetary recovery for damages caused by violations. It reviews reported Florida court decisions applying the law, and presents prominent decisions under the federal FTC Act, whose precedent serves as guidance for court interpretation of the state law. It also argues, based on FTC Act precedent, that class action plaintiffs should be entitled to a rebuttable presumption that they relied on challenged misrepresentations and omissions, rather than have the burden of proving them as part of their affirmative case. The article also discusses instances in which non-consumers may be able to sue for non-monetary, injunctive relief under the statute.
This article was cited in an opinion by a federal district court in Louisiana in Determination Corporation d/b/a “Foresite” v. Eltec Instruments, Inc. Case No. 02-405-D (M.D. La., Feb. 24, 2005) and in an opinion by a federal court in Florida, Elizabeth Bohlke, et al. v. Shearer’s Foods, LLC, Case No.9:14-CV-80727 (Jan. 20, 2015).
“FDUTPA for Civil Antitrust: Additional Conduct, Party, and Geographic Coverage; State Actions for Consumer Restitution,” The Florida Bar Journal, December 2002.
This article discusses how Florida’s little FTC act is also designed to prohibit and provide remedies for “unfair methods of competition,” again based on analogous provisions of the FTC Act. It analyzes the extent to which the law’s substantive coverage goes beyond that of the federal Sherman and Clayton Acts and the state Antitrust statute; how it gives indirect purchasers (i.e., remote buyers in the distribution chain), suing individually or in a class action, legal “standing” to obtain damages whereas under other federal and state Antitrust statutes they may not sue; how the statute permits competitors to obtain injunctive relief in state court against anticompetitive practices; and how the statute applies to out-of-state conduct and out-of-state plaintiffs and defendants. The article also explores the State’s ability to seek restitution on behalf of injured individual and business consumers.
This article was cited in the Committee on Rules’ Bill Analysis and Fiscal Impact Statement for Florida Senate Bill SB 1620 (amending FDUTPA), April 11, 2017, at n. 3.
“Rebuttable Presumption of Reliance in Class Actions,” The Maryland Bar Journal, July/August 2003.
This article advocates that the statutory purposes of Maryland’s Consumer Protection (“little FTC”) Act will justifiably be promoted by application, in consumer class actions, of a rebuttable presumption of reliance by consumers on allegedly deceptive representations or omissions by defendants. The article discusses supporting case law precedent under federal securities fraud law, other state little FTC acts, and the Federal Trade Commission Act. It also analyzes Maryland case law bearing upon this interpretation, including a recent Court of Appeals tobacco litigation decision and a recent Court of Special Appeals decision under a statute addressing imbalance of economic power between gasoline distributors and dealers.
“Entitlement to Attorney’s Fees Under FDUTPA,” The Florida Bar Journal, January 2004.
This article seeks to determine the standards which should be applicable to FDUTPA’s provision permitting the court to award reasonable attorney’s fees to the prevailing party. It concludes, through examination of related but non-FDUTPA federal and state precedent, that the provision’s public policy enforcement purpose requires that such fees ordinarily be awarded to prevailing plaintiffs. They should be awarded to prevailing defendants only when the action was frivolous or groundless in fact or law.
This article was cited by Florida’s Court of Appeals for the Fourth District in The Humane Society of Broward County, Inc. v. The Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007).
“Damages Under FDUTPA,” The Florida Bar Journal, May 2004.
This article examines sources of Florida court decisions limiting the compensatory damages recoverable for violations of FDUTPA. It concludes that recent decisions depart from the statute’s purpose and recognized judicial principles, which militate in favor of recovery of those common law categories and measures of damages as are appropriate to the particular case.
The article was cited by the United States District Court for the Southern District of Florida in Bohlke v. Shearer’s Food, LLC, 2015 WL 249418 (Jan. 20, 2015).