Waste Pro USA and Waste Pro of Florida, Inc. v. Vision Construction ENT, Inc. ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-2445
_____________________________
WASTE PRO USA and WASTE PRO
OF FLORIDA, INC.,
Appellants,
v.
VISION CONSTRUCTION ENT,
INC.,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.
September 18, 2019
B.L. THOMAS, J.
Waste Pro USA and Waste Pro of Florida appeal the lower
court’s nonfinal order certifying a Florida Deceptive and Unfair
Trade Practices Act (“FDUTPA”) class for all customers who paid
Waste Pro’s “environmental fee.” For the reasons that follow, we
affirm.
Facts
Waste Pro of Florida, Inc. provides waste disposal services to
residential and commercial customers in Florida, including
Appellee Vision Construction ENT., Inc., a Pensacola construction
company.
Vision brought an action for alleged violations of FDUTPA
and a claim of unjust enrichment against Appellant Waste Pro
USA. 1 Vision alleged that two fees charged by Waste Pro, a “fuel
surcharge” and an “environmental fee,” were deceptive. With
regards to the “environmental fee,” Vision alleged that “[t]he
Environmental Fee bears no relation to Waste Pro’s increased
environmental costs (or its actual environmental costs) it might
incur and the proceeds it receives are not used to offset such
increased costs.” Vision asserted that, while the title
“environmental fee” would lead a reasonable consumer to believe
that the fees are used to offset environmental costs imposed by a
regulator, the fees in fact are retained by Waste Pro.
Vision filed a class action complaint requesting that the court
certify two classes under Florida Rule of Civil Procedure 1.220: a
class composed of customers who paid the fuel surcharge fee, and
a class composed of customers who paid the environmental fee.
At a class certification hearing, the court heard evidence that
Waste Pro began charging the environmental fee in 2009 and has
always charged it as a percentage of a base fee, unless a customer
individually negotiated otherwise.
From 2008-2010, Waste Pro service agreements contained fill-
in blanks labeled “fuel surcharge” and “environmental fee,” and
the back of the forms contained an explanation that Waste Pro
“may adjust charges for increases in” charges for various items or
services, such as landfill charges, fuel costs, or insurance
premiums.
Beginning in 2011, the service agreements stated that “[a] fuel
surcharge and environmental compliance cost recovery charge,
calculated as a percentage of the Charge(s), will be included on
your invoice.”
Waste Pro’s CFO testified that he could not recall Waste Pro
incurring any environmental costs that it didn’t have before 2009.
He testified that he did not track any environmental costs that
existed from 2006-2016. The CFO testified that he had never seen
1 Appellant Waste Pro USA, Inc. is a holding company that
owns multiple subsidiaries, including Waste Pro FL.
2
any calculations done for Waste Pro’s environmental costs. At least
once, the environmental fee increased from six to eight percent
solely because a competitor’s increased to eight percent; no
analysis of environmental costs contributed to the increase.
Waste Pro’s environmental expert submitted an analysis
indicating that Waste Pro incurred between approximately $6.8-
7.7 million in “major environmental expenses” between 2011 and
2015 and collected approximately $6.1 million in environmental
fees in that time.
A Waste Pro corporate representative testified that Waste
Pro’s environmental costs are not netted against the
environmental revenues it receives. The representative testified
that no document provided to a Waste Pro customer contains an
explanation of the environmental fee “except the website.” The
representative testified that he did not think Waste Pro’s sales
representative should inform customers that if Waste Pro’s
environmental costs decreased, the customers would still be
charged an environmental fee; he testified that the sales
representatives don’t know what the environmental costs are and
could not disclose them to customers.
A Waste Pro sales representative testified that he would
inform customers inquiring about the environmental fee that it
was intended to “try to recover part of the increased costs of
compliance.” Another Waste Pro sales representative, likewise
testified that Waste Pro’s environmental fee was used to recoup
some of Waste Pro’s environmental compliance costs. This
representative testified that occasionally, customers inquiring
about the environmental fee were directed to Waste Pro’s website.
The website, in varying iterations, informed customers that
the “Environmental Charge is related to our costs of meeting a
high standard of environmental compliance set by internal
management and external governmental regulatory agencies. . . .
This charge will help support our costs to operate our collection,
transfer, recycling and landfills in a safe and environmentally
responsible manner.” The website did not inform customers what
Waste Pro’s environmental costs were, or the method Waste Pro
used to calculate the fee.
3
Waste Pro regional sales managers submitted affidavits
stating that they are encouraged to, but are not required to impose
the environmental fee, and they may reduce or waive the fee at a
customer’s request. Waste Pro’s CEO and a Waste Pro corporate
executive both testified that they wouldn’t expect Waste Pro’s
customers to know what Waste Pro’s environmental costs were.
Waste Pro submitted evidence that Waste Pro’s five regional
vice presidents had autonomy and discretion regarding whether to
charge the fuel and environmental fees. Each region made its own
determinations on whether to waive, reduce, or cap the fees.
Vision began contracting with Waste Pro in 2009 and was not
charged an environmental fee until 2014. Waste Pro charged
Vision the environmental fee on fewer than 10 of the 170 service
invoices between Vision and Waste Pro. Vision continued using
Waste Pro after filing suit in this case and was using it at the time
of Vision President Garry Crook’s deposition.
Vision paid environmental fees to vendors other than Waste
Pro; Crook testified that Vision was sometimes charged an
environmental fee by concrete companies. Crook testified that he
assumed that the other companies were also imposing these fees
to recover their costs for “environmental issues.”
Waste Pro submitted affidavits from some putative class
members stating that they understood that the environmental fee
was intended to offset Waste Pro’s total costs and would expect
that those fees included a profit component. However, when Vision
deposed these affiants, they stated that they did not draft or have
personal knowledge of those statements in the affidavits and
testified that they either had no knowledge of whether the
environmental fee was intended to offset Waste Pro’s total costs or
believed that the fee was used to recoup environmental costs and
not to generate profit.
The court issued an order granting certification for the
environmental fee class and denying certification for the fuel
surcharge class. 2 The court found that the environmental fee was
2 The court did not certify the fuel surcharge class because the
back of the service agreements contained language which could
explain to a reasonable consumer that the fuel surcharge could
4
not charged to offset environmental costs, nor was it charged to
recover costs associated with environmental compliance
regulations set by government regulatory agencies.
The court found that, for the environmental fee class, Vision
met the requirements of Florida Rule of Civil Procedure 1.220,
holding that the class was of sufficient size, that Vision’s claim
arose from the same course of conduct by Waste Pro as other class
members and that claim was based on the same legal theory, and
that Vision was an adequate class representative. The court also
ruled that the environmental fee class satisfied rule 1.220(b)(3),
which requires that “common questions of law and fact
predominate over individual ones.” The court found that the fact
that different customers may have had different agreements with
Waste Pro did not defeat class certification, as the class included
any customer who paid the environmental fee. The court ruled
that “when analyzing the term ‘environmental fee,’ a reasonable
consumer would likely conclude such a fee was used to compensate
Waste Pro for those costs associated with environmental
compliance regulations,” not other costs that Waste Pro used the
fee to cover. The court ruled that, because Waste Pro charged
every class member using the same term, and never informed the
members that those fees were not related to environmental costs,
differences in individual contracts did not render class certification
inappropriate.
The court ultimately certified an “Environmental Fee Class,”
defined as “[a]ll persons and entities who reside in Florida who
paid, directly or indirectly, Waste Pro USA, Inc. and/or Waste Pro
of Florida, Inc., an ‘Environmental Fee’ (or other similarly named
fees) from April 7, 2011 to the date of the class notice.”
Analysis
An appellate court “reviews a trial court's order on class
certification for an abuse of discretion, examines a trial court's
factual findings for competent, substantial evidence, and reviews
conclusions of law de novo.” Sosa v. Safeway Premium Finance Co.,
increase as fuel costs increased but was not directly tied to those
costs. As Vision could not show that it received the back page, it
was not an adequate representative of the class.
5
73 So. 3d 91, 105 (Fla. 2011) (citations omitted). The trial court’s
inquiry at the class certification stage is restricted “to the
substance of the motion and not the merits of the cause of action
or questions of fact for a jury.” Id. at 105.
“To obtain class certification, the proponent of class
certification carries the burden of pleading and proving the
elements required under rule 1.220.” Id. at 106. “This includes
the four elements of rule 1.220(a),” i.e. numerosity, commonality,
typicality, and adequacy of representation. Id. “In addition, the
proponent of class certification must satisfy one of the three
subdivisions of rule 1.220(b).” Id.
Vision sought certification under rule 1.220(b)(3), requiring
Vision to show that “common questions of law or fact predominate
over the individual questions of the separate members and that
the class action be manageable and superior to other available
methods of fairly adjudicating the controversy.” Volkswagen of
America, Inc. v. Sugarman, 909 So. 2d 923, 924 (Fla. 3d DCA 2005).
“[A] class representative establishes predominance if he or she
demonstrates a reasonable methodology for generalized proof of
class-wide impact.” Sosa, 73 So. 2d at 111. “A class representative
accomplishes this if he or she, by proving his or her own individual
case, necessarily proves the cases of the other class members.” Id.
At issue here is whether Vision satisfied the predominance
requirement.
Waste Pro argues that, because Vision must show that a
reasonable consumer acting in the same circumstances would have
been deceived by the environmental fee, resolution of the issue
requires an inquiry into the sophistication and experience of each
individual class member. Waste Pro asserts that individual
questions therefore predominate over common ones and that the
trial court thus abused its discretion by certifying the
environmental fee class.
Vision alleged that Waste Pro’s environmental fee violated
FDUTPA because “[t]he Environmental Fee bears no relation to
Waste Pro's increased environmental costs (or its actual
environmental costs) it might incur and the proceeds it receives
are not used to offset such increased costs.” The complaint alleged
that “Waste Pro incurs no discrete, identifiable ‘environmental’ or
6
‘environmental compliance’ costs at all,” and that the
environmental fee “is simply a hidden rate increase Waste Pro
misrepresents to deceive its customers.” Id. Vision asserts that
the title “environmental fee” would lead a reasonable consumer to
believe that the fee is used to offset environmental costs imposed
by a regulator, but that the fees in fact are retained by Waste Pro.
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. (2018). A consumer's claim “for damages under FDUTPA
has three elements: (1) a deceptive act or unfair practice; (2)
causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951
So. 2d 860, 869 (Fla. 2d DCA 2006).
“To satisfy the first element, the plaintiff must show that ‘the
alleged practice was likely to deceive a consumer acting reasonably
in the same circumstances.’” Carriuolo v. General Motors, 823 F.3d
977, 983-84 (11th Cir. 2016) (quoting State, Office of the Att'y Gen.
v. Commerce Comm. Leasing, LLC, 946 So. 2d 1253, 1258 (Fla. 1st
DCA 2007)). “Under Florida law, an objective test is employed in
determining whether the practice was likely to deceive a consumer
acting reasonably.” Id. “That is, ‘[a] party asserting a deceptive
trade practice claim need not show actual reliance on the
representation or omission at issue.’” Id. (quoting Davis v.
Powertel, Inc., 776 So. 2d 971, 973 (Fla. 1st DCA 2000).
“A class member's subjective sophistication or knowledge is
irrelevant [where] the liability inquiry states objective elements.”
Carriuolo, 823 F.3d at 990. While the determination of whether
an act is deceptive requires “an objective test,” it also specifically
requires consideration of whether the defendant’s conduct was
‘likely to mislead [a] consumer acting reasonably in the
circumstances,’ including the plaintiff's knowledge and level of
sophistication.” James D. Hinson Elec. Contracting Co., Inc. v.
BellSouth Telecommunications, Inc., 275 F.R.D. 638, 645 (M.D Fla.
2011) (citing Pop’s Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677,
679 (S.D. Fla. 2008); Egwuatu v. South Lubes, Inc., 976 So. 2d 50,
53–54 (Fla. 1st DCA 2008).
7
Based on this construction, federal courts have held that
resolution of the deceptiveness element of an FDUTPA claim
involves objective and subjective considerations:
The modification of “acting reasonably” by “in the
same circumstances” indicates a hybrid standard that
may be objectively established as to mindset but
subjectively established as to context. The objective
element—reasonableness—does not require the Court to
consider the plaintiff's individualized state of mind. In
other words, the plaintiffs’ individualized dispositions or
beliefs do not on their own negate or create a FDUTPA
violation. On the other hand, the subjective element—
that the circumstances must be similar—necessitates
inquiry into the context of the alleged offense; that is, one
can only assess reasonableness when the inquiry requires
consideration of the factual circumstances that counsel a
reasonable person to act in a particular way or hold a
particular belief.
In re Motions to Certify Classes Against Court Reporting Firms,
715 F. Supp. 2d 1265, 1277-78, 1282 (S.D. Fla. 2010). The
subjective element does not necessarily create individualized
issues so as to defeat class action: “In some cases, the subjective
component of this standard can be met on a class-wide basis.” Id.
Federal 3 and Florida cases demonstrate that an inquiry into the
sophistication of the plaintiffs to determine whether a defendant’s
actions were deceptive may or may not be necessary depending on
the nature of the alleged deception and the representations of the
defendant.
In some cases, the nature of the alleged deception, and the
defendants’ varying representations to different class members
regarding the alleged deception, created individualized issues that
precluded class certification.
3 “Because Florida's class action rule is based upon Federal
Rule of Civil Procedure 23, Florida courts may look to federal cases
as persuasive authority in their interpretation of rule 1.220.”
Seven Hills, Inc. v. Bentley, 848 So. 2d 345, 352-53 (Fla. 1st DCA
2003).
8
In Pop’s Pancakes, the plaintiff restaurant establishments
alleged that a provider of CO2 beverage equipment violated
FDUTPA by leasing equipment to plaintiffs and issuing property
tax invoices which, unbeknownst to the plaintiffs, included an
“administrative processing fee” which the defendants retained;
plaintiffs alleged that this fee violated FDUTPA because the
defendant “failed to disclose the fee, deceptively placed the fee on
the invoice, misrepresented that the full amount of the property
tax invoice was to be paid to a governmental agency as a ‘pass-
through fee,’ and charged an unnecessary and excessive amount
for the processing fee.” 251 F.R.D. at 679. The plaintiffs’ proposed
class included every customer who was assessed the full
administrative processing fee in any invoice. Id. at 680.
The Southern District stated that the proposed class included
customers who were told before receiving the invoice that an
administrative fee was included, and the class included customers
who read the back of the invoice and understood that the “property
tax” fee on the front of the invoice included an administrative fee.
Id. at 684. Therefore, the Southern District held that plaintiffs’
first two FDUTPA claims, that defendant failed to disclose the fee
and deceptively placed the fee on the invoice, “would necessarily
require an individual inquiry into each class plaintiff's knowledge
and understanding regarding the fee.” Id. at 685.
As to the plaintiffs’ third claim, that the defendant failed to
disclose that the administrative fee contained a large profit
component, the Southern District rejected plaintiff’s argument
“that a deceptive invoice for one, would necessarily be deceptive for
all . . . given the facts of this case.” Id. at 686.
In this case . . . the question of what is reasonable,
particularly in light of the consumers being business
entities, is predicated in large part, on what was
understood by the customers when they read the property
tax invoice, including consideration of what had been to
be represented to them, or what their understanding was
through their own reading of the back of the invoice.
Thus, it is not the Plaintiffs' reliance that is at issue, but
whether it was reasonable under the circumstances,
which vary for each Plaintiff, for each Plaintiff to not
9
know that the property tax included an administrative
processing fee.
Id.
The court therefore held that individualized questions
predominated and class action was improper. The court
distinguished its case from cases where “consumers had a one-time
purchase or interaction with the defendant business and thus,
there were no additional issues regarding other representations or
negotiations between the consumer and that business.” Id. at 687.
“[I]n those situations, the deceptive nature of the receipt, invoice
or ticket could be determined without inquiry into the knowledge
of the consumer based upon other representations that might have
eliminated any confusing and/or deceptive aspects of the receipt,
invoice or ticket.” Id. The court ruled that its case was
distinguishable because the defendant’s invoice did not reveal the
entirety of the transaction between the parties, and “the lease
agreements, the oral representations, the verbage [sic] on the back
of the invoice, and any other interaction that the business may
have had with the consumer must be considered to resolve whether
the property tax invoice was deceptive.” Id.
In Egwuatu v. South Lubes, Inc., 976 So. 2d 50, 51 (Fla. 1st
DCA 2008), the defendant, doing business as Jiffy Lube, provided
routine auto services, including oil changes. Defendant offered a
service called “Signature Service Oil Change” for an advertised
price of $27.99 plus an “environmental fee,” which ranged from $1
to $2.50 per vehicle. Id. The plaintiff alleged that the imposition of
the fee was deceptive in violation of FDUTPA, in that it appeared
to be a tax that the company was collecting from consumers. Id.
This court held that the trial court properly denied class
certification because the defendant employed a variety of different
methods over the years to inform customers that the
environmental fee was not a tax, including posting menu boards
stating that the environmental fee was added for the handling of
hazardous products; giving verbal explanations of the fee to
customers who asked about it; posting in all of their stores a letter
from the company president explaining the fee; and posting a fee
notice explaining the environmental fee on written estimates
exceeding $100. Id. at 53. This court also noted that some of the
10
class members also did business with other oil change companies,
and those members “must have known that the environmental fee
the defendants charged was not a tax, because the other oil change
companies they were doing business with did not charge it.” Id.
This court held that the trial court was correct in concluding
“that an individualized inquiry would be required to determine the
facts of each of the commercial customer's experience with the
defendants and whether that customer knew that the fee was not
a tax,” thus causing individualized issues to predominate. Id. at
53-54.
In other cases, courts have determined that, based on the
nature of the alleged deception and the representations made by
defendants, an inquiry into the sophistication of each class
member was unnecessary, and common issues predominated.
Individual FDUTPA causation issues predominate a class
where each plaintiff “had a unique sales experience and exposure
to varying allegations regarding” the claimed deceptive practice,
while common issues predominate where the “defendant's conduct
is the same as to all class members.” Perisic v. Ashley Furniture
Industries, Inc., 2018 WL 3391359 at *6 (M.D. Fla. June 27, 2018);
Cox v. Porsche Fin. Servs. Inc., 330 F.R.D 322, 334 (S.D. Fla. 2019)
(quoting Bowe v. Pub. Storage, 318 F.R.D. 160, 182 (S.D. Fla.
2015)). A key distinction is “that cases where the court did require
individualized inquiries to determine FDUTPA causation, and
therefore defeated predominance, arose in the context where
different representations were made to different class members,
and where some class members were aware of the deceptive
conduct.” Cox, 330 F.R.D. at 334.
Waste Pro identifies no record evidence establishing that it
made different representations about the nature of the
environmental fee to different class members. Waste Pro argues
that regional vice presidents had autonomy to decide how to
impose the fee and customers could negotiate the fee with
salesmen, but Waste Pro does not assert that the salesmen or vice
presidents informed any customer as to the true nature of the
environmental fee. The record reflects that every customer who
paid the environmental fee received the same representation from
Waste Pro, and no class member was informed that the
11
environmental fee was not used to offset environmental costs. This
course of conduct by Waste Pro does not create individualized
questions.
Waste Pro also asserts that a damages inquiry will be so
individualized as to preclude class certification. Waste Pro argues
that an FDUTPA plaintiff’s actual damages are the difference in
market value between a deceptive and negotiated item. Waste Pro
argues that each class member therefore will have to establish that
it would have obtained other waste disposal services without
paying an environmental fee for a total lower cost than Waste Pro’s
services.
However, there are two ways to measure actual damages in
an FDUTPA claim: “(1) the value between what was promised and
what was delivered; or (2) the total price paid for a valueless good
or service.” HRCC, Ltd. v. Hard Rock Cafe International (USA),
Inc., 302 F. Supp. 3d 1319, 1321 (M.D. Fla. 2016).
The measure of actual damages in cases “where the alleged
deceptive practice is defendant’s misrepresentation of why a fee is
being charged and where the money for the fee is being
transferred” is “the amount retained by defendant despite the
representation that the amount will be transferred to a third-
party.” Morgan v. Pub. Storage, 2015 WL 11233111, at *1 (S.D.
Fla. August 17, 2015). Here, Vision alleged that the environmental
fee was deceptive, as it suggested that money collected through
this fee would be used to offset costs imposed by regulators. If the
class prevails on this claim, the actual damages will be the amount
of environmental fees that Waste Pro retained. The damages
inquiry will not be highly individualized, and the trial court did
not abuse its discretion in granting class certification.
Based on the foregoing, because Waste Pro, through its
allegedly deceptive “environmental fee,” made the same
misrepresentation to the entire class, common issues predominate
over individualized ones. The trial court did not abuse its
discretion in granting class certification.
Neither did the court fail to conduct a rigorous analysis.
Before certifying a class, a trial court is required to conduct a
“rigorous analysis” to determine that the elements of rule 1.220
have been met. Rollins, Inc. v. Butland, 951 So. 2d 860, 867 (Fla.
12
2d DCA 2006). Waste Pro argues that the court failed to conduct
this analysis, as the court “wholly ignored” key evidence and
reached an incorrect conclusion on the rule 1.220 predominance
requirement.
A court generally violates the “rigorous analysis” requirement
when its order contains limited analysis or conclusory statements
with no factual support. See Seminole Cty v. Tivoli, 920 So. 2d 818,
823-24 (Fla. 5th DCA 2006) (the defective order “contained neither
rigorous analysis nor evidentiary support for its conclusion . . . only
cursory, conclusory statements and no detailed findings of fact”);
Ford Motor Co. v. Morris, 904 So. 2d 612, 613 (Fla. 1st DCA 2005)
(reversing an order granting class certification where “the order
certifying the class contains no findings of fact as required by
Florida Rule of Civil Procedure 1.220(d)(1)”); Vega v. T-Mobile
USA, Inc., 564 F.3d 1256, 1278 (11th Cir. 2009) (holding that,
where the trial court’s entire rule 23 analysis consisted of one
conclusory sentence, “[t]he district court's omission of an
independent and substantial, let alone rigorous, analysis of Rule
23(b)(3), in addition to the facts that Vega has not established
predominance and likely has not shown superiority, further
demonstrates that certification of this class was an abuse of
discretion” (emphasis added); InPhyNet Contracting Servs., Inc. v.
Soria, 33 So. 3d 766, 772 (Fla. 4th DCA 2010) (holding “[w]e agree
that the court did not conduct a ‘rigorous analysis’ of the
predominance factor” where it “made no analysis, other than”
making one conclusory statement and “did not analyze any of the
other issues involved in that determination”).
Conversely, a court satisfies the rigorous analysis
requirement where it “evaluate[s] written arguments,”
“consider[s] affidavits, deposition testimony, . . . discovery,
documentation, and court filings that constituted the entire case
file,” “hold[s] a hearing where it entertain[s] argument from both
parties,” and makes findings that are “not conclusory because they
demonstrate[] why—both factually and legally—the trial court”
reached its conclusion. Sosa, 73 So. 3d at 118.
Here, the court conducted a three-day hearing, considered
affidavits and deposition testimony, and issued a thirty-three-page
order explaining its conclusions. Waste Pro essentially argues
that the court’s conclusions demonstrate that it failed to properly
13
consider the evidence before it, because if the court had conducted
a rigorous analysis, it would have determined that a reasonable
consumer with the same experience as Vision would not have been
deceived by the environmental fee.
Waste Pro argues that the court ignored the fact that Vision
paid environmental fees to other vendors other than Waster Pro.
But Waste Pro does not establish how paying fees to other vendors
cures the alleged deception of the fee.
Vision’s president testified that he thought the fees charged
by other companies were also used to offset regulatory costs that
had been imposed on them. Waste Pro offers no support for its
suggestion that paying an “environmental fee” to multiple vendors
endows a customer with the knowledge that this fee will be
retained by the imposer and not passed on to a regulator. In
Egwuatu, the fact that some customers did business with other
vendors who did not charge an environmental fee could have
indicated to the customers that the defendant’s fee was not a
regulatory fee imposed on the industry uniformly. 976 So. 2d at
53-54. Here, the fact that Vision did pay environmental fees to
vendors other than Waste Pro would not provide the same notice
that such a fee served to generate profit for the entity imposing the
fee.
Waste Pro also argues that, if the court had conducted a
rigorous analysis, it would have concluded a reasonable consumer
in Vision’s circumstances would not believe the “environmental
fee” reflected Waste Pro’s exact environmental costs, due to
evidence that the fee was only charged sporadically (despite the
court stating in its order that Vision was only charged the
environmental fee on a “somewhat inconsistent” basis). Waste Pro
supports this contention with citations to Berry v. Budget Rent a
Car Sys., Inc., 497 F. Supp. 2d 1361 (S.D. Fla. 2007) and Vorst v.
TBC Retail Group, Inc., 2012 WL 13026643 (S.D. Fla. April 12
2012). However, in both of those cases, the purportedly deceptive
fees were deemed to be non-actionable under FDUTPA because the
titles themselves indicated that fees would be retained by the
entities imposing them. Berry, 497 F. Supp. 2d at 1367 (the title
“cost-recovery fee” implies that the company will keep the money
collected as a “recovery for costs”); Vorst, 2012 WL 13026643 at *2
14
(the title “oil-disposal fee” implies that the company will “keep the
fee for itself”).
These cases do not support the conclusion that the title
“environmental fee,” standing on its own, would inform customers
that the fee is for Waste Pro’s profit and is not directly tied to
regulatory fees. Other cases suggest that such a title does not
convey this information. See Deere Construction, LLC v. Cemex
Construction Materials Florida, LLC, 198 F. Supp. 3d 1332, 1339
(S.D. Fla. 2016) (“There is nothing in the term[] . . . ‘environmental
charge’ that implies Defendants will keep the monies collected”).
Waste Pro asserts that the court failed to consider the
autonomy that Waste Pro’s employees had in imposing the
environmental fee. But the autonomy of certain employee to
charge the environmental fee does not alter the fact that the fee,
as alleged in Vision’s complaint, was deceptively titled. If the
“environmental fee” title is ultimately deemed deceptive, it will
have been deceptive to each customer who paid it, irrespective of a
regional vice president’s discretion on whether to impose it.
Waste Pro argues that the court failed to consider the fact that
service agreements in 2009 referred only to an “environmental
fee,” while the forms beginning in 2011 stated that the fee may be
used to recoup “environmental compliance costs.” Each form
contained the label “environmental fee,” a label which Vision
alleged is deceptive standing alone. The fact that the 2011 form,
but not the 2009 form, also refers to “compliance” does not mean
that Waste Pro’s representations were different for customers who
agreed to the different forms. Vision alleges that the words
“environmental fee” suggest that such a fee is collected in order to
offset some fee imposed on the vendor by a regulator. The word
“compliance” further suggests that the purpose of the fee is to
offset some regulatory cost. So, a customer agreeing to the 2009
form and a customer agreeing to the 2011 form would both be led
to believe that the “environmental fee” will be used to offset some
environmental regulation.
Waste Pro argues that the court ignored evidence that Waste
Pro does actually incur environmental costs. But the Vision’s
complaint alleged that the environmental fee “bears no relation to
Waste Pro’s increased environmental costs (or its actual
15
environmental costs) it might incur and the proceeds it receives
are not used to offset such increased costs.” There is no dispute
that Waste Pro has environmental costs; the issue is whether the
“environmental fee” is tied to these costs 4. As the mere existence
of environmental costs does not defeat Vision’s claim, the trial
court did not err in failing to discuss these costs in its order.
Waste Pro also argues that the court ignored the evidence that
Vision continued to use Waste Pro’s services even after filing suit
in the present case. Waste Pro suggests that a customer’s
continued payment of a fee it has alleged is deceptive is fatal to an
FDUTPA claim. Waste Pro cites to Prohias v. Pfizer, 485 F. Supp.
2d 1329 (S.D. Fla. 2007) and Sweeney v. Kimberly-Clark Corp.,
2016 WL 727173 (M.D. Fla. February 22, 2016), to support this
assertion. In Kimberly-Clark, the plaintiffs alleged that
defendant’s flushable wipes were not flushable, and the court
found that the plaintiffs’ continued use of the wipes after filing suit
made the measure of damages too speculative, because the
plaintiff continued to use the wipes for reasons other than
flushability. WL 727173 at *5. And in Pfizer, damages were
impossible to calculate where the plaintiff continued using
defendant’s product Lipitor for its cholesterol reduction, after
alleging that the defendant falsely advertised about Lipitor’s
coronary benefits. In those cases, damages could not be calculated
because the plaintiffs’ continued use of the falsely advertised
products established that the plaintiffs still received the usable
wipes or cholesterol-reducing drugs they paid for despite the
alleged deception.
Here, in contrast, Vision alleged that it paid a deceptive fee
that purely profited Waste Pro, and, as stated above, its damages
are the amount they paid in environmental fees. The damages
calculation is not altered by Vision’s use of Waste Pro’s services
after filing suit. Further, Vision presented evidence that it could
have been subjected to liquidated damages, attorney’s fees, and
costs if it had refused to continue paying the environmental fee.
Continued use of a product after alleging a deceptive practice does
not always preclude damages, if the plaintiff has a “plausible
4 Vision did allege that Waste Pro has no “discrete
environmental costs,” meaning no costs specifically tied to the
environment.
16
reason” for continuing use. See In re Light Cigarettes Marketing
Sales Practices Litigation, 751 F. Supp. 2d 196, 204 (D. Maine
2010) (“Regardless whether the plaintiffs in Prohias could not or
did not allege a plausible reason for their continued purchases, the
six Plaintiffs in this case have: they assert that they have
continued to purchase light cigarettes because they are addicted to
them”). Vision presented evidence of a plausible reason to continue
using Waste Pro’s services and paying the environmental fee, and
that continued use does not preclude its FDUTPA claim.
Based on the foregoing, because the court thoroughly
explained its reasons for certifying the environmental fee class,
and because the evidence which Waste Pro claims the court
“wholly ignored” does not support its argument that individualized
issues predominate the class, the court’s order indicates that it
conducted the requisite “rigorous analysis” into whether Vision
satisfied the elements of rule 1.220.
AFFIRMED.
RAY, C.J., 5 and WINOKUR, J., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jerry R. Linscott, Julie S. Brady, Susan M. Johns, and Maureen
Berard Soles of Baker & Hostetler, LLP, Orlando, for Appellants.
Charles Phillip Hall of Phil Hall, P.A., Pensacola; James M.
Stephens of McCallum, Methvin & Terrell PC, Birmingham; J.
Phillip Warren of Taylor, Warren & Weidner, P.A., Pensacola, for
Appellee.
5 Judge Ray substituted for an original panel member in this
proceeding after oral argument. She has viewed the digital
recording of oral argument.
17