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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND
FOR MONROE COUNTY, FLORIDA
A BOAT 4 FUN, INC. d.b.a. Catamaran Boat Yard, a Florida
corporation, Petitioner, vs. Case No. 18-CA-24-P STATE OF FLORIDA,
OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS,
Respondent. __________________________________________/
THE ATTORNEY GENERAL’S RESPONSE TO THE PETITION TO QUASH THE
INVESTIGATIVE SUBPOENA DUCES TECUM OR, ALTERNATIVELY, MODIFYING
THE INVESTIGATIVE SUBPOENA, AND MOTION TO COMPEL PETITIONER’S
COMPLIANCE WITH THE INVESTIGATIVE SUBPOENA
Respondent, State of Florida, Office of the Attorney General,
Department of Legal Affairs
(the “Attorney General”), files this Response to A Boat 4 Fun,
Inc. d.b.a. Catamaran Boat Yard’s
(“Catamaran”) Petition to Quash the Investigative Subpoena Duces
Tecum Issued by the Office of
the Attorney General or, Alternatively, Modifying the Subpoena
(the “Petition”) and, pursuant to
Section 501.206(3), Florida Statutes, the Attorney General files
this Motion for Order Compelling
Catamaran’s Compliance with the Attorney General’s Investigative
Subpoena Duces Tecum (the
“Investigative Subpoena”).
Introduction
The Investigative Subpoena Catamaran seeks to quash stems from
Catamaran’s boat
storage and boat towing services provided to consumers in the
wake of Hurricane Irma. Prior to
Hurricane Irma, it appears Catamaran provided the boat storage
services to consumers at a flat rate
Filing # 68138342 E-Filed 02/19/2018 01:38:19 PM
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– generally at a fixed price per foot. Yet, immediately before
the impending landfall of Hurricane
Irma in Florida, it appears Catamaran increased its rates.1
Based on numerous consumer complaints2 received by the Attorney
General related to
Catamaran’s business practices, the Attorney General initiated
an investigation into any unfair or
deceptive acts and practices, or any unconscionable acts or
practices.
The Attorney General has reason to believe that Catamaran has
engaged in, or is engaging
in, acts or practices that violate the Florida Deceptive and
Unfair Trade Practices Act, Chapter
501, Part II, Florida Statutes (“FDUTPA”). The only question
properly before the Court is whether,
at the time it was issued, the Attorney General had a reasonable
basis for issuing the Investigative
Subpoena to Catamaran. As set forth herein, the answer is
clearly yes, despite Catamaran’s
apparent attempt to have this Court conduct a premature and
improper trial on the merits of its
potential defenses to an enforcement action – should the
Attorney General ultimately decide to
bring one. Because the Attorney General has met its burden on
the threshold question before this
Court, Catamaran should be compelled to respond to the
Investigative Subpoena, which is attached
hereto as Exhibit A.
Catamaran’s Petition reveals the lengths to which Catamaran is
willing to go in an effort
to avoid the Attorney General’s scrutiny. The Petition is yet
another attempt to circumvent the
Attorney General’s investigation. On December 5, 2017, the
Attorney General issued the
Investigative Subpoena, after Catamaran ignored all efforts by
the Attorney General to discuss the
consumer complaints. The Attorney General attempted several
times to establish lines of
communication with Catamaran and obtained no cooperation.
1 Catamaran admits to doubling its rates “during a hurricane
emergency event.” Petition at 15-18. 2 The Attorney General has
received several complaints from consumers complaining about
Catamaran’s business practices.
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To avoid compliance, Catamaran narrowly and erroneously
construes the Attorney
General’s current investigation in a self-serving and misleading
fashion. It is evident from the face
of the Investigative Subpoena that the Attorney General is
investigating potential violations under
Section 501.204, Florida Statutes, governing unlawful acts and
practices, including unfair methods
of competition, unconscionable acts and practices, and unfair or
deceptive acts and practices. The
Investigative Subpoena also references Section 501.160, Florida
Statutes (the “Price Gouging
Statute”), which provides that a violation of the Price Gouging
Statute constitutes a per se violation
of FDUTPA. FDUTPA is not limited to a violation of a specific
law, and one actionable claim is
not subsumed by another. See §501.203(3), Fla. Stat. (providing
a series of bases for violations of
FDUTPA); See §501.213, Fla. Stat. (providing that remedies under
FDUTPA are “in addition to
remedies otherwise available for the same conduct under state or
local law”). Catamaran points to
no authority, because there is none, providing that if the
Attorney General invokes the Price
Gouging Statute, it is foreclosed as a matter of law from
pursuing a broader investigation into
unfair, deceptive, or otherwise unconscionable acts or
practices. See §501.204, Fla. Stat. Further,
the Attorney General has the authority to investigate any
business or industry where there is a
reason to believe that a violation of FDUTPA has occurred or is
occurring.
The only question before the Court is whether the Attorney
General is authorized in issuing
the Investigative Subpoena. Because the Attorney General has
reason to believe that Catamaran
has engaged in, or is engaging in, an act or practice that
violates FDUTPA, the Investigative
Subpoena is valid. The Attorney General respectfully requests
this Court to compel Catamaran to
produce the documents requested.
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ARGUMENT I. The Investigative Subpoena is Valid as a Matter of
Law The Attorney General has reason to believe that Catamaran
engaged in unfair conduct by
increasing its boat storage rates during a declared state of
emergency. As discussed herein, Florida
law affords the Attorney General the power to issue
investigative subpoenas, along with other
tools, to investigate when it believes that a person has engaged
in, or is engaging in, unfair,
deceptive, and/or unconscionable conduct.
A. The Attorney General Had a Reasonable Basis to Issue the
Investigative Subpoena; Therefore, Catamaran Should be Compelled to
Comply Pursuant to Section 501.203(2), Florida Statutes, the
Attorney General is an “enforcing
authority” under FDUTPA. FDUTPA prohibits “[u]nfair methods of
competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in
the conduct of any trade or commerce.”
§501.204(1), Fla. Stat. Although often thought of as a
consumer-protection statute, it is not so
limited. FDUTPA applies to “any act or practice occurring ‘in
the conduct of any trade or
commerce.’” Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So. 2d
274, 278 (Fla. 4th DCA 2004)
(quoting §501.204(1), Fla. Stat.) (emphasis added). FDUTPA’s
prohibition on unfair, deceptive,
and unconscionable acts is “extremely broad.” Democratic
Republic of the Congo v. Air Capital
Grp., LLC, 614 F. App’x 460, 469 (11th Cir. 2015); PNR, Inc. v.
Beacon Prop. Mgmt., Inc., 842
So. 2d 773, 777, n.2 (Fla. 2003); Joyeria Paris, SRL v. Gus
& Eric Custom Servs., Inc., 2013 WL
6633175, at *4-5 (S.D. Fla. Dec. 17, 2013) (collecting
authority).
According to Section 501.206(1), Florida Statutes, “[i]f, by his
or her own inquiry or as a
result of complaints, the enforcing authority has reason to
believe that a person has engaged in, or
is engaging in, an act or practice that violates this part, he
or she may administer oaths and
affirmations, subpoena witnesses or matter, and collect
evidence.” (Emphasis added).
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The Attorney General had a reasonable basis to issue the
Investigative Subpoena based
upon complaints received from consumers regarding increased
rates, which Catamaran’s Petition
freely admits. Petition at 15-18. The Attorney General may use
its investigative powers to
subpoena records that will aid it in determining whether further
action is required. State, Dept. of
Legal Affairs v. Jackson, 576 So. 2d 864, 865 (Fla. 3d DCA
1991). The analysis in Jackson proves
instructive in this case. In Jackson, the Attorney General
issued subpoenas seeking “various
records to determine whether Jackson’s business practices were
in violation of [FDUTPA].” Id.
Jackson sought to set aside the subpoenas on the basis that a
certain provision of FDUTPA did not
apply to his activities. Id. Overturning the trial court’s
decision, the Third District Court of Appeal
determined that the Attorney General has a “right to a careful
review of the documents” sought
through an investigative subpoena. Id. “It may be the case that,
after a careful review of the
documents and records subpoenaed, the [Attorney General] might
choose not to pursue further
actions regarding Jackson’s activities. Id. (citing R.W. v.
Department of Professional Regulation,
Board of Osteopathic Medical Examiners, 566 So. 2d 26 (Fla. 3d
DCA 1990); Winfield v. Div. of
Pari-Mutuel Wagering, Department of Business Regulation, 477 So.
2d 544 (Fla. 1985)).
We need not render a final determination at this juncture as to
whether or not Jackson’s activities constitute “consumer
transactions” as contemplated by Section 501.203(1). We need only
consider whether the Department is entitled to investigate
Jackson’s activities for the purpose of making further
determinations. Accordingly, we find that the Department is
entitled to investigate the complaints that it has received and is
well within its right to issue the subpoenas to further this
purpose.
Jackson, 576 So. 2d at 865.
As in Jackson, the Attorney General is entitled to investigate
Catamaran’s activities for the purpose
of making further determinations.
Catamaran relies heavily on the courts’ decisions in Major
League Baseball and Check ‘n
Go for the proposition that an agency’s subpoena power does not
extend to “fishing expeditions.”
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See Petition at 7-13 (citing Major League Baseball v. Crist, 331
F.3d 1177 (11th Cir. 2001); Check
‘n Go of Florida, Inc. v. State, 790 So. 2d 454 (Fla. 5th DCA
2001)). In Check ‘n Go, the court
determined that the applicable test regarding the Attorney
General’s authority to issue an
investigative subpoena “is whether under the circumstances a
reasonably prudent person would be
warranted in the belief that a person or other enterprise who is
the subject of the subpoena has
engaged in, or is engaging in violation of the [law]” Check ‘n
Go at 458; see also Petition at 8
(quoting Check ‘n Go at 458) (emphasis added). Ultimately the
court determined that the materials
available to the Attorney General would lead a reasonable person
to conclude that the behavior
“might well constitute an activity” that violated the law. Id.
at 459. The Attorney General is
“accorded the flexibility to review” the transactions at issue
to determine whether the statutes in
question were violated. Id.
Here, the Attorney General has received ample information to
support its reasonable belief
that Catamaran has engaged in, or is engaging in, an act or
practice that violates FDUTPA.
§501.206(1), Fla. Stat.; see also Jackson, 576 So. 2d at 865.
Because the purpose of the Attorney
General is to “discover and procure evidence, and not to prove a
pending charge or
complaint…more latitude is allowed in considering the foundation
of the subpoena.” Check ‘n Go,
790 So. 2d at 458 (assessing an investigative subpoena issued by
the Attorney General).
The Attorney General had sufficient information to afford it a
reasonable basis to issue the
Investigative Subpoena, which is the only question before this
Court at this juncture. Catamaran
should be compelled to comply with the Investigative
Subpoena.
B. The Investigative Subpoena is Not Overbroad or Unreasonable
In addition to the Attorney General having a reasonable basis to
issue the Investigative
Subpoena, the Investigative Subpoena itself is also reasonable
because the information sough
through the subpoena is relevant to the investigation and
described with requisite particularity and
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definiteness. See Check ‘n Go, 790 So. 2d at 459-60. Under
Florida law, an investigative “subpoena
must be ‘properly limited in scope, relevant in purpose, and
specific in directive,’ in order to not
be unduly burdensome.” Id. at 460 (citing Dean v. State, 478 So.
2d 38, 40 (Fla. 1985)). Here, the
Attorney General has limited the materials sought to particular
transactions during a specific time
period. See Ex. A. Catamaran’s Petition mischaracterizes the
information sought in the
Investigative Subpoena as irrelevant, overbroad, and unduly
burdensome which is simply baffling
when the Investigative Subpoena is “limited in scope, relevant
in purpose, and specific in
directive.” Check ‘n Go at 460. The Investigative Subpoena is
valid and Catamaran should be
compelled to comply with it.
C. Catamaran Has No Excuse from Compliance with the
Investigative Subpoena The Investigative Subpoena states the
following:
THIS INVESTIGATIVE SUBPOENA DUCES TECUM is issued pursuant to
the Florida Deceptive and Unfair Trade Practices Act, Chapter 501,
Parts I and II, Florida Statutes, in the course and authority of an
official investigation. The general purpose and scope of this
investigation, pursuant to Chapter 501, Parts I and II, Florida
Statutes, extends to possible price gouging and the unfair and/or
deceptive trade practices, which involve the business practices of
A Boat 4 Fun, Inc. d.b.a Catamaran Boat Yard. Your attention is
directed to Sections 501.160, 501.204, and 501.206 (2017), Florida
Statutes, printed and attached hereto.
Catamaran makes several arguments in an attempt to circumvent
the Attorney General’s
investigation and avoid compliance with the Investigative
Subpoena. First, Catamaran cites
inapposite law to argue that the Attorney General lacks the
authority to issue the Investigative
Subpoena. Second, Catamaran seeks to constrain the Attorney
General’s investigation to price
gouging, ignoring the Attorney General’s broad authority under
FDUTPA and the fact that the
Investigative Subpoena was expressly issued pursuant to both
Section 501.204 and Section
501.160, Florida Statutes. Third, Catamaran mischaracterizes the
Attorney General’s investigation
as a converted breach of contract claim. Each of Catamaran’s
arguments fails.
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1. Catamaran’s Business Practices Fall Within the Scope of
FDUTPA.
As discussed above, the Attorney General clearly meets the
applicable test to authorize the
Investigative Subpoena. See §501.206(1), Fla. Stat. Catamaran
appears to argue that the Attorney
General lacks the statutory authority to issue the Investigative
Subpoena. Catamaran cites cases
wherein the scrutinized business could not be reached by the
statute at issue. Unlike in the
inapposite cases cited, no legal authority shields Catamaran
from compliance with the
Investigative Subpoena.
Catamaran cites Major League Baseball v. Crist, 331 F.3d 1177,
1179 (11th Cir. 2003) and
the baseball antitrust exemption, which provides that the
“business of baseball” enjoys an
exemption from federal antitrust laws. See Petition at 7-10. At
issue in Major League Baseball
were several civil investigations demands (“CIDs”)3 issued by
the Attorney General’s authority
under the Florida antitrust statute. Id. The court reasoned that
the vote to reduce the number of
teams fell within the “business of baseball,” and that the
antitrust exemption therefore applied. Id.
Thus, the court determined that it “makes no sense…to allow an
investigation into conduct that we
know is perfectly legal before the investigation commences.” Id.
at 1187. An investigative agency
is prohibited from conducting “fishing expeditions” premised
solely upon “legal activity.” Id. at
1188. Application of the baseball exemption caused the
investigated behavior to fall outside of the
antitrust statute. In other words, as a matter of law, no
actionable violation could have occurred
regardless of what the Attorney General’s investigation yielded.
No similar exemption exists here.
Aside from citing Major League Baseball for general,
uncontroversial principles, it is unclear how
Catamaran means to show that its behavior cannot be reached by
FDUTPA.
3 The Investigative Subpoena was issued by the Attorney
General’s Consumer Protection Division, which does not issue civil
investigation demands.
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Similarly misdirected, Catamaran cites two cases involving
mortgage foreclosure firms,
which stand for the proposition that an activity must fall
within the rubric of “trade or commerce”
for FDUTPA to apply. See Petition 11-12 (citing State, Office of
the Attorney General v. Shapiro
& Fishman, LLP, 59 So. 3d 353, 356 (Fla. 4th DCA 2011); Law
Office of David J. Stern, P.A. v.
State, 83 So. 3d 847, 849 (Fla. 4th DCA 2011)). Each of these
cases involves investigations into
law firms that attempted to collect debts on residential
mortgage loans through foreclosure
proceedings. Shapiro, 59 So. 3d at 355; Stern, 83 So. 3d at
848-49. In each case, the Fourth District
Court of Appeal relied upon Kelly v. Palmer, Reifler, &
Associates, P.A., 681 F. Supp. 2d 1356
(S.D. Fla. 2010) holding that a law firm’s acts “occurring
during the exercise of a legal remedy”
did not occur in “trade or commerce.” Shapiro, 59 So. 3d at 356;
Stern, 83 So. 3d at 850.
In the instant case, Catamaran does not, because it cannot,
argue that its acts fall outside of
trade or commerce. Indeed, the Petition itself establishes that
Catamaran engages in trade and
commerce. See, e.g., Petition at 2-4. “Since it opened business,
[Catamaran] has stored and
maintained and/or serviced thousands vessels for the consumers.”
See, Petition at 3.
As a matter of law, FDUTPA reaches Catamaran’s acts and
practices as framed by the
Investigative Subpoena. Catamaran has failed to offer any
convincing argument that would limit
the Attorney General’s statutory authority to issue the
Investigative Subpoena.
2. The Attorney General is Not Limited to Investigating Alleged
Price Gouging.
Catamaran purposely misconstrues the scope of the Investigative
Subpoena as seeking
documents “in an ill-conceived investigation” to determine
“whether [Catamaran’s] contract
calling for a specific rate per foot…violated the Price Gouging
law, and thus violated FDUTPA.
That is the only violation of FDUTPA which the Subpoena reflects
is being investigated by the
Attorney General.” Petition at 3-5. Catamaran’s presumption is
wrong on at least two fronts. First,
the Attorney General has not limited its investigation to a per
se violation, namely the Price
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Gouging Statute. Second, the Attorney General’s investigation is
not focused exclusively on
Catamaran’s “contract calling for a specific rate per foot.”
Id.
FDUTPA broadly makes “[u]nfair methods of competition,
unconscionable acts or
practices, and unfair or deceptive acts or practices in the
conduct of any trade or commerce”
unlawful. §501.204(1), Fla. Stat. (emphasis added); Millennium
Communications & Fulfillment,
Inc. v. Office of the Attorney General, 761 So. 2d 1256, 1260
(Fla. 3d DCA 2000); see also
§501.203(3)(b), Fla. Stat. (FDUTPA violations may be based on
“[t]he standards of unfairness and
deception set forth and interpreted by the Federal Trade
Commission or the federal courts”);
Millennium Communications & Fulfillment, Inc. at 1263; Dept.
of Legal Affairs v. Fathers and
Sons Moving and Storage, Inc., 643 So. 2d 22, 24 (Fla. 4th DCA
1994) (FDUTPA is liberally
construed to protect the consuming public from those who engage
in deceptive or unfair acts or
practices in trade or commerce); §501.211, Fla. Stat. (providing
for cumulative remedies with other
statutes).
While a FDUTPA violation may be based on a specific law or
statute that “proscribes unfair
methods of competition, or unfair, deceptive or unconscionable
acts or practices” (such as the Price
Gouging Statute), an act need not violate a specific law to
constitute a FDUTPA violation. See
§501.203(3), Fla. Stat. (providing a series of bases for
violations of FDUTPA), see also Fathers
and Sons, 643 So. 2d at 24 (holding that an act need not violate
a specific rule or regulation to
violate FDUTPA); Hap v. Toll Jupiter Ltd. P’ship, 07-81027-CIV,
2009 WL 187938, at *9 (S.D.
Fla. Jan. 27, 2009) (“FDUTPA can be violated in two ways: (1) a
per se violation premised on the
violation of another law proscribing unfair or deceptive
practice and (2) adopting an unfair or
deceptive practice”). The Investigative Subpoena references the
Price Gouging Statute as well as
Section 501.204, Florida Statutes, which governs violations
based on unfair or deceptive acts and
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practices. See Ex. A. The Attorney General may rely upon more
than one statute to ground its
investigation, and Catamaran can point to no law to the
contrary. See §501.203(3), Fla. Stat.
The Price Gouging Statute addresses the charging of
unconscionable prices during a
declared state of emergency and states:
Upon a declaration of state of emergency by the Governor, it is
unlawful and a violation of s. 501.204 for a person or her or his
agent or employee to rent or sell or offer to rent or sell at an
unconscionable price within the area for which the state of
emergency is declared, any essential commodity including, but not
limited to, supplies, services, provisions, or equipment that is
necessary for consumption or use as a direct result of the
emergency (emphasis added). It is unlawful and a violation of s.
501.204 for any person to impose unconscionable prices for the
rental or lease of any dwelling unit or self-storage facility
during a period of declared state of emergency.
§501.160(2)-(3), Fla. Stat.
Catamaran argues, in a self-serving manner, the Investigative
Subpoena must be quashed
because Catamaran has not violated the Price Gouging Statute – a
specific law – and the Attorney
General cannot avail itself of the more general provisions of
FDUTPA. In support of this
contention, Catamaran misconstrues statutory construction and
argues that “there can be no
violation of FDUTPA if a violation of the Price Gouging law does
not exist.” Petition at 14. Under
Florida law, a specific statute overrides a more general,
comprehensive statute that covers the same
subject matter only when a conflict between the statutes creates
ambiguity. DMB Inv. Trust v.
Islamorada, Village of Islands, 225 So. 3d 312, 317-18 (Fla. 3d
DCA 2017); see also Giamberini
v. Department of Financial Services, 162 So. 3d 1133, 1136 (Fla.
4th DCA 2015) (quoting Adams
v. Culver, 111 So. 2d 665, 667 (Fla. 1959)) (“When statutes
appear to conflict, however, a specific
statute ‘covering a particular subject matter is controlling
over a general statutory provision
covering the same and other subjects in general terms.”’). Thus,
a specific statute supersedes a
more general statute only to the extent provisions of the two
statutes clearly conflict. There is no
conflict between the Price Gouging Statute and FDUTPA. Indeed,
the Price Gouging Statute
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expressly references Section 501.204, proscribing unfair or
deceptive acts or practices. Nor is there
any support for the proposition that charging an unconscionable
price during a declared state of
emergency is a violation of the Price Gouging Statute (§501.160,
Fla. Stat.) to the exclusion of
FDUTPA (§§501.201-501.213, Fla. Stat.). In fact, the plain
meaning of the statutory text
demonstrates that the legislative intent was to subject conduct
under the Price Gouging Statute to
the provisions of FDUTPA. See §501.160(2)-(3), Fla. Stat.
(including provisions establishing the
jurisdiction of the Enforcing Authority (§501.206), affording
relief, (§501.207), and imposing civil
penalties, (§501.2075)).
The Attorney General is authorized to investigate potential
violations based on the Price
Gouging Statute, as well as any other violations as set forth in
FDUTPA. Catamaran must comply
with the Investigative Subpoena.
3. The Court is Not Presently Adjudicating Whether a Violation
Has Occurred.
Catamaran’s line of argument that it has not charged an
unconscionable price is misguided
and premature. Petition at 2-3 (“Far from seeking,
‘unconscionable’ prices from the residents and
visitors of Monroe County it serves, [Catamaran’s] prices are
consistent with market conditions
created by the impact of the disastrous Hurricane Irma.”) At
this juncture, the Court need not
determine whether a violation has occurred. Jackson, 576 So. 2d
at 865. Rather, the query is
whether the Attorney General has a reasonable belief that a
person has engaged in, or in engaging
in, a practice that violates FDUTPA. §501.206(1), Fla. Stat. The
Attorney General has reason to
believe that a violation has occurred, and the Investigative
Subpoena is thus valid.
4. The Attorney General is Not Pursuing a Breach of Contract
Claim.
Catamaran’s next effort in its attempt to circumvent the
Attorney General’s investigation
is to mischaracterize the Attorney General’s investigation as a
breach of contract issue. The
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Attorney General is investigating potentially unfair or
deceptive acts and practices, as it is entitled
to do.
In Florida, “[t]o the extent an action giving rise to a breach
of contract or breach of lease
may also constitute an unfair or deceptive act, such claim is
and has always been cognizable under
the FDUTPA.” PNR, Inc., 842 So. 2d 777 n.2. Thus, while a mere
breach of contract cannot be
converted into a FDUTPA claim, unfair or deceptive conduct that
gives rise to the breach is subject
to FDUTPA. Rebman v. Follett Higher Education Group, Inc., 575
F. Supp. 2d 1272 (M.D. Fla.
2008); see also Orkin Exterminating Co., Inc. v. F.T.C., 849
F.2d 1354, 1367 (11th Cir. 1988)
(upholding FTC order finding defendant’s unilateral breach of
200,000 consumer contracts to be
unfair).4
Catamaran admits it doubled its rates during a hurricane
emergency event. See Petition at
15-18. Further, Catamaran alleges the Attorney General’s
“investigation boils down to the
Attorney General’s suggestion that [Catamaran] cannot enter into
a contract with its customers
where the pricing or fees or charges are not acceptable to the
Attorney General.” Id.
Catamaran mischaracterizes the Attorney General’s investigation
as a breach of contract issue. The
Attorney General is not pursuing a breach of contract claim. As
FDUTPA’s enforcing authority,
the Attorney General is authorized to investigate the facts and
circumstances surrounding
Catamaran’s admitted conduct to determine if further action is
required.
D. Catamaran is Not Entitled to an Evidentiary Hearing
On the one hand, Catamaran argues throughout the Petition that
the Investigative Subpoena
must be quashed as a matter of law. Petition at 5, 6, 12, 15,
18, 23. On the other hand, Catamaran
demands an evidentiary hearing that would require the Attorney
General to produce the very
4 Under FDUTPA, due consideration and great weight is given to
interpretations of the Federal Trade Commission and the federal
courts as to whether an act or practice is unfair or deceptive.
§501.204(2), Fla. Stat.
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documents it seeks from Catamaran. Petition at 1-3, 6, 23, 24.
Catamaran’s request for a premature
evidentiary hearing is yet one more attempt in trying to avoid
the Attorney General’s scrutiny and
it will essentially mean trying the merits of this case
prematurely. The only issue for the Court to
decide is whether the Attorney General’s investigation is valid
pursuant to the conditions of
Section 501.206(1) of the Florida Statutes. The Attorney General
is under no obligation to present
evidence upon which to rest its reasonable belief that a
violation has occurred. Nevertheless, the
information provided herein established a record sufficient to
show a reasonable basis to pursue
an investigation.
Unable to provide any statutory support for its request for an
evidentiary hearing,
Catamaran cites a single, unreported case wherein a judge in
Leon County held an evidentiary
hearing to establish the Attorney General’s foundation to pursue
information by investigative
subpoena. See Petition at 19-20 (citing WAM IT Technologies, LLC
d/b/a WAM IT, LLC,
Petitioner, v. State of Florida, Office of the Attorney General,
Department of Legal Affairs,
Respondent, Leon County Circuit Court Case No.: 2013 CA
2063.)
A more fulsome review of the arguments in Wam It reveals that
Wam It relied on the
Communications Decency Act to argue that federal law preempted
an action against Wam It. See
Notice of Filing of Petitioner’s Statement of Issues to Be
Decided by the Court, attached hereto as
Exhibit B. In this way, the question presented in Wam It is akin
to Major League Baseball
discussed above. If the court had determined that the
Communications Decency Act precluded a
valid action against Wam It, then perhaps the Attorney General
could not have pursued an
investigation. Therefore, whether Wam It conducted business that
was covered by the
Communications Decency Act may have required the court to hear
evidence. Ultimately, the court
ordered Wam It to produce responsive materials, denying the
Petition to Quash and granting the
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Attorney General’s Motion to Compel. The September 16, 2013
Order is attached hereto as
Exhibit C.
Unlike in Wam It or Major League Baseball, Catamaran lacks any
argument that an
applicable exemption exists that would render the fruits of any
investigation moot. Stated
differently and as discussed above, Catamaran cannot establish
as a matter of law that no actionable
cause of action exists. See Jackson, 576 So. 2d at 865; Check ‘n
Go, 790 So. 2d at 458.
For each and all of the reasons set forth above, the
Investigative Subpoena is valid, the
Petition to Quash should be denied, and Catamaran should be
compelled to comply with the
Investigative Subpoena.
II. Catamaran’s Objections to the Investigative Subpoena Are Not
Properly Before The Court Catamaran requests that, if the
Investigative Subpoena is deemed valid, that it be modified
and narrowed. Petition at 6, 7, 12, 13, 21-24. Catamaran
generally asserts four categories of
objections (1) that some requests are overbroad; (2) that some
requests seek confidential,
proprietary or trade secret information; (3) that some requests
seek irrelevant information; and (4)
that documents seeking information from August 4, 2017 through
January 12, 2018, are
objectionable based on each of the three categories of
objections described above.
At the outset, Catamaran’s objections violate Rule 1.350(b) of
the Florida Rules of Civil
Procedure as it is unclear as to which specific requests each
category of objection applies. For
example, with respect to Catamaran’s relevancy objection,
Catamaran requests an evidentiary
hearing to determine what areas of inquiry will be allowed by
the Court. Again, Catamaran cannot
have a trial on the merits before the Attorney General has even
had the opportunity to review
information yielded from an investigation. Catamaran has failed
to demonstrate that any wholesale
bar exists as a matter of law to the Attorney General’s
investigation. In contrast, the Attorney
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General has demonstrated that it has a reason to believe that
violative conduct has occurred.
Catamaran is therefore not entitled to an evidentiary hearing,
and certainly not a hearing whereby
the Attorney General’s investigation is limited due to any lack
of evidence caused by Catamaran’s
refusal to produce any materials. Such a strained argument turns
civil procedure on its head.
To the extent Catamaran argues that the information sought by
the Investigative Subpoena
is confidential, proprietary, or trade secret, Florida law
establishes a process to protect such
information from public disclosure, as referenced in the
Investigative Subpoena. See Ex. A (citing
§§688.002(4)(b), 812.081(1)(c), 815.045, Fla. Stat.) Section
815.045 of the Florida Statutes
specifically exempts trade secrets from public disclosure. See,
e.g., James, Hoyer, Newcomer,
Smiljanich & Yanchunis, P.A. v. Rodale, Inc., 41 So. 3d 386,
388 (Fla. 1st DCA 2010); Sepro
Corp. v. Florida Dept. of Envtl. Prot., 839 So. 2d 781, 783
(Fla. 1st DCA 2003). The process in
place would prevent the disclosure of any information deemed
sensitive by the Court. Catamaran’s
improper objections do not absolve it of its obligation to
comply with the Investigative Subpoena
and are simply excuses in an attempt to circumvent the Attorney
General’s investigation.
CONCLUSION
WHEREFORE, Respondent, State of Florida, Office of the Attorney
General, Department
of Legal Affairs, respectfully requests that this Court enter an
Order (1) denying Catamaran’s
Petition to Quash, or Alternatively to Modify, the Investigative
Subpoena Duces Tecum, (2)
granting the Attorney General’s Motion for Order Compelling
Catamaran’s Compliance with the
Attorney General’s Investigative Subpoena Duces Tecum, and (3)
granting any such further relief
as this Court deems just and proper. A proposed Order is
attached hereto as Exhibit D.
Dated: February 19, 2018. Respectfully Submitted,
PAMELA JO BONDI ATTORNEY GENERAL
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/s/ Viviana Escobar
Viviana Escobar Assistant Attorney General
Florida Bar No. 0106610 Office of the Attorney General Consumer
Protection Division One SE Third Avenue, Suite 900 Miami, Florida
33131 Telephone: (786) 792-6251 Facsimile: (305) 349-1403
[email protected]
mailto:[email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
document was filed
through the Florida Courts E-Filing Portal, which has
simultaneously effected service via email to
John A. Jabro, Esq. ([email protected]), Counsel for Petitioner, on
this 19th day of February 2018.
In addition, a copy of the foregoing document was sent via
United States mail and email this 19th
day of February 2018, to:
John A. Jabro, Esq. 90311 Overseas Highway, Suite B Tavernier,
FL 33070 [email protected] [email protected] Counsel for Petitioner A
Boat 4 Fun, Inc.
/s/ Viviana Escobar Viviana Escobar Assistant Attorney
General
mailto:[email protected]:[email protected]:[email protected]
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Response to Petition to Quash - 2-19-2018Exhibits to Response to
Pet. to Quash - 2-19-2018Exhibits to Response to Pet. to Quash -
2-8-2018Proposed Order re Petition to Quash