1. Art and Diseño

E-Copy Received Jul 10, 2014 2:55 PM
FOURTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 4D13-3916
CARIBBEAN CRUISE LINE, INC.,
Appellant,
BETTER BUSINESS BUREAU OF PALM BEACH
COUNTY, INC. d/b/a BETTER BUSINESS BUREAU
OF SOUTHEAST FLORIDA AND THE CARIBBEAN; and
COUNCIL OF BETTER BUSINESS BUREAUS, INC.,
Appellees.
REPLY BRIEI
Appeal of a Final Order from the Circuit Court of the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida
Case No.: SO 2012 CA 010670XXXXMB (AH)
John H. Pelzer, Esq.
Richard W. Epstein, Esq.
Jeffrey A. Hackman, Esq.
GREENSPOON MARDER, P.A.
200 E. Broward Boulevard, 18th floor
Fort Lauderdale, Florida 33301
(954) 527-2469
15654177
1
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .
TABLE OF AUTHORITIES.
PREFACE.
ARGUMENT
1.
THE TRIAL COURT ERRED WHEN IT DISMISSED
CCL'S DEFAMATION CLAIMS.
II.
THE TRIAL COURT ERRED WHEN IT DISMISSED
CCL'S FDUTPA CLAIM AGAINST THE BBB.
CONCLUSION .
CERTIFICATE OF SERVICE.
CERTIFICATE OF COMPLIANCE
/5654I77:i
....
TABLE OF AUTHORITIES
Pape
Inc. v. Hennessey,
629 F.Supp. 2d 1302 (S.D. Fla. 2008) .
Alvi Armani Medical,
6,7
Aviation Charter, Inc. v. Aviation Research Group,
416 F.3d 864 (8'" Cir. 2005).
3,4
Browne v. Avvo, Inc.,
525 F.Supp. 2d 1249 (W.D. Wash. 2007).
Budget Van Lines, Inc. v. Better Business Bureau of the Southland, Inc.,
2013 WL 4494318 (Cal. Ct. App. August 20, 2013).
Castle Rock Remodeling, LLC v.
Better Business Bureau of Greater St. Louis, Inc.,
354 S.W. 3d 234 (Mo. Ct. App. 2011).
From
Tallahassee Democrat, Inc,,
400 So. 2d 52 (Fla. 1"DCA 1981)
v,
James D. Hinson Electrical Contracting Co., Inc. v.
Bell South Telecommunications, Inc.,
2008 WL 360803 (M.D. Fla, 2008) .
Niles Audio Corporation v. Oem Systems Company, Inc.,
174 F.Supp. 2d 1315 (S.D. Fla. 2001) .
North American Clearing, Inc. v. Brokerage Computer Systems, Inc,,
666 F.Supp. 2d 1299 (M.D. Fla. 2009).
Northfield Holding Corp, dlbla Florida Window and Door v.
The Better Business Bureau, etc., et al.,
Palm Beach Circuit Court Case No. 2013 CA 018096XXXXMB....
True Title, Inc. v, Blanchard,
2007 WL 430659 (M.D. Fla. 2007)
$
5654177:l
5,6
PREFACE
This is an appeal from a final judgment
The Appellant,
herein as
of dismissal.
CARIBBEAN CRUISE LINE, INC., will be referred to
"CCL"
The Appellees,
COUNTY,
INC., d/b/a
BETTER BUSINESS BUREAU OF PALM BEACH
BETTER BUSINESS BUREAU OF SOUTHEAST
FLORIDA AND THE CARIBBEAN and COUNCIL OF BETTER BUSINESS
BUREAUS, INC., will be referred
to collectively
herein
as
"BBB" or
as
"Appellees."
Appellee, Better Business Bureau
Business Bureau
Appellee, Council
of Southeast Florida
of Palm Beach
County, Inc., d/b/a Better
and the Caribbean,
of Better Business Bureaus, Inc.
Business Bureaus, Inc., oversees in excess of 120
is a local franchisee
Appellee, Council
BBB
franchisees
America, all of which advertise and market in the same manner,
franchisor
BBB's guidelines
Appellees
here is immaterial
and
control.
for purposes
The distinction
of
of Better
in North
subject to the
between
the two
this appeal, and any references
each or either Appellee should be construed to refer to both entities collectively.
The record will be referred to herein as "R.
1V
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of
to
ARGUMENT
I.
The
THE TRIAL COURT ERRKD WHEN IT DISMISSED
CCL'S DEFAMATION CLAIMS.
BBB tries to
away CCL's legal theory by concluding
assume
CCL's complaint depends upon BBB's opinion of CCL's business,
that
However, as
CCL made clear, and BBB admits elsewhere, the letter grade assigned by BBB to
CCL is not the basis for CCL's Complaint.
grade, a statement
of
Indeed,
if BBB simply assigned a letter
or a frownie face, then CCL would have no
disapproval
complaint with that bald statement
of opinion. However, BBB tries to bolster
opinions by asserting that they are factually based, thereby implying
its
defamatory
facts.
In doing this, the
BBB is treading a very fine
to make its ratings
more appealing
businesses who are
BBB's customers
to consumers
line. On the one hand, in order
and more marketable
and fund its operations,
the ratings have an objective basis in fact and reality.
defending against claims
As pled by
ways.
BBB, which
of the
BBBjust can't
dismissal on appeal,
rating system implies a factual basis that is defamatory.
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that
an assertion that its ratings
have it both
must be accepted as true for the purposes
motion to dismiss below and review
of its
The
BBB must assert
On the other hand, when
of defamation, BBBretreats to
are pure opinion, which imply no factual support.
to the
of the
BBB's promotion
The
BBB's
claim that it has defeated
it is optimistically
against
every claim
of
defamation
First, BBB's attempted
self-serving.
Budget Van Lines, Inc. v. Better Business Bureau
of the
Southland,
of
distinction
Inc., 2013 WL
4494318 (Cak Ct. App. August 20, 2013), doesn't withstand analysis.
asserts that Budget Van Lines is limited because there, the
made
The BBB
BBB affiliate
falsely
asserted that the plaintiff lacked required licenses,
BBB Brief, p.16, fn.5.
That
case is not as factually limited as the BBB suggests.
BBB neglects to mention
that
its affiliate in Budget Van Lines also asserted that Budget Van Lines'dvertising
was "grossly misleading."
2013WL4494318 *5, 8. In this case, the BBB has also
implied to the public that CCL's advertising
to submit to interrogation
FTC disapproved
is false (simply because CCL refused
by the already hostile
of BBB's
use
of
BBB) and
the word
falsely implied that the
"free" in CCL's advertising.
Therefore, Budget Van Lines is factually apposite.
Even more surprisingly,
the
BBB completely overlooks a recent decision
denying a very similar motion to dismiss a very similar defamation case, also in the
Palm Beach County Circuit Court.
and unsuccessfully
The
BBB is
made the same arguments
represented
by the same counsel
it makes here in Northfield Holding
Corp. dlb/a Florida 8'indoor and Door v. The Better Business Bureau, etc., et al.,
Case No, 2013 CA 018096X3000v'fB, resulting
in the "Order on Defendant's
Motion to Dismiss Plaintiff's Complaint" dated April 4, 2014,
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of which this Court
may take judicial notice.
BBB relies
upon Aviation
Charter, Inc. v. Aviation Research Group, 416
F.3d 864 (8 Cir. 2005), to try to create a rule that the opinions published by rating
agencies can never be defamatory
as a matter
the facts in Aviation Charter to
comparing
of law. This is a reach. In fact,
BBB's rating
system reveals just how
weak
BBB's claim
all.
Rather, it was a product that Aviation Research Group sold in the narrow
marketplace
is, In Aviation Charter, the rating was not a published rating at
of users of charter air services. More
importantly,
the rating was not
an opaque statement that implied Aviation Research Group's opinion was based on
undisclosed
defamatory
which detailed
facts. Instead, it was a 77-page report, 416 F.3d at 868,
the extensive
research done by Aviation
public data bases that were available to anyone.
Research Group from
Even with this extensive factual
backup for the statements it made or implied in its rating, Aviation Research Group
included
a disclaimer that it "is not the official source of this data, so users are
encouraged
to verify the data through
conclusions or basing determinations
the information
in Aviation
official sources prior to drawing
any
on this data." 416 F.3d at 867. Not only was
Charter that Aviation Research Group used available
to the general public on the internet, Aviation Research Group included much of
this information
in its 77-page report so that the purchaser
its own conclusion about the validity
15654177 1
of its
report could draw
of Aviation Research Group's opinion. This
comprehensive
disclosure places Aviation Research Group's report in the category
of pure opinion. From
v. Tallahassee
Democrat, Inc., 400 So. 2d 52, 57 (Fla.
1"
DCA 1981).
BBB grossly
The
that "as a matter
case for the proposition
systems are inherently
of Aviation Charter
rnisstates the holding
of
when it cites the
rating and accreditation
law,
subjective and are not 'sufficiently
factual to be susceptible
of being proved true or false.'" Answer Brief, p.11. The language BBB quotes
was
actually
internal
quote
describing
added by
quoted language out
Even though
information
BBB is
not a fair paraphrase
the
BBB's
attempt
who come across
BBB to believe
objective, in-depth
that
BBB's
statements
research and analysis
Because the BBB encourages
comments
opinion
BBB would like to create. The
of
the opinion,
and takes the
provided by Aviation Research Group is patently misplaced, the false
problem is that consumers
by
for mixed
to equate its rating with the extensive
is not the problem.
in
standard
of context.
BBB's Brief
equation
the
and does not establish the blanket rule
defamation
language
an
BBB's rating
and comments
are led
are based upon the same kind
that is described
in Aviation
the public to believe that the rating
are based on research and unbiased
actionable mixed opinion.
The real
That is mere advocacy,
analysis,
BBB's
of
Charter.
and other
statements
are
The Better Business Bureau also overstates
Remodeling,
of Castle Rock
the holding
LLC v. Better Business Bureau of Greater St. Louis, Inc., 3S4 S.W. 3d
234 (Mo. Ct. App. 2011). The Missouri court in that case applied the Missouri rule
that defamatory
should be construed
statements
the defendant when determining
in the manner most favorable to
whether they are actually defamatory,
are "construed in their most innocent sense,"
354 S.W. 3d at 239, This differs
from Florida's rule at the Motion to Dismiss stage that inferences
favor of the pleader.
so that they
are drawn in
After stating that standard, the court went on to discuss the
four items identified
by the plaintiff
as being defamatory.
Id. at 239, 240,
Ironically, the comments that the plaintiff in Castle Rock identified as defamatory
are very similar
disclaimers.
to the statements
Indeed, the alleged defamatory
statement that the advertising
Ultimately,
relied upon
by the
BBB affiliate's
issues it raised with the plaintiff had been corrected.
as a matter
statements are "either capable
in this case as
comments include the
the Castle Rock court did not state any rule
rating is never defamatory
BBB
of law. The court
of non-defamatory
of
law that a business
simply said that particular
meaning or true." Id. at 240. To
the extent that Castle Rock discusses whether the rating standing
alone can be
defamatory, id. at 241, 242, this is a point that CCL conceded from the outset.
A
by assertions or implications
of
grade is not defamatory
unless it is accompanied
fact that are themselves defamatory,
15654177:1
That is what CCL has alleged, but which the
plaintiff in Castle Rock did not.
This same observation
undermines
the
BBB's
reliance on Bm~ne v. Avvo, Inc,, 525 F.Supp. 2d 1249 (W.D. Wash. 2007).
II.
THK TRIAL COURT ERRED WHEN IT DISMISSED
CCL'S FDUTPA CLAIM AGAINST THE BBB.
that the trial court's order
The argument
bases reads quite a bit into the stream
trial court on the transcript,
adopt the hearing
merely
recapitulates
the arguments
"I find
of consciousness
alternative
made by the
statements
That is a danger of orders, especially final orders, that
transcript.
On these pages,
R.596, 597, the court
the parties made regarding the standing of the business
to be a plaintiff under FDUPTA.
that
of dismissal had two
that there is not a cause
The court then goes on to state unequivocally
of action
stated in this complaint."
R.597, S98.
That is the only finding made on the transcript.
Nevertheless,
CCL's standing
to state a claim under FDUPTA is clear
because it is a business affected by the rating system. Rivi AI.mani Medical, Inc. v.
Hennessey,
629 F.Supp. 2d 1302 (S.D. Fla. 2008), is virtually indistinguishable.
There, the plaintiff was a medical provider
restoration.
of
providing
hair
The defendant was an internet publisher of a website called the "Hair
Restoration Network."
and disparaging
The plaintiff alleged that the defendant published
comments
business practices.
15654177;1
in the business
about the plaintiff,
and therefore
committed
The plaintiff further alleged that the defendant's
untrue
unfair
disparaging
of plaintiff's competitors,
comments were made at the behest
on the website.
to be recommended
defendant
defendant's
publication
constituted
alleged "unfair or deceptive
who paid a fee to the
The court concluded
"trade or commerce"
that the
and that defendant's
acts or practices" in the conduct
of
that trade or
commerce was actionable by the plaintiff who was harmed thereby.
629 F.Supp.
BBB engages
in "trade or
2d at 1305. The same analysis
applies here.
The
commerce" when it publishes its comments purportedly
analysis rather than favoritism
that is bought and paid for by
by CCL. To the extent this Court accepts
BBB's invitation to
and thus to require the plaintiff to have purchased
read its cases very
something
from the
CCL urges this Court to revisit that authority in light of the remedial
defendant,
purposes
BBB's "accredited"
This is a deceptive act or practice that harms CCL, and so is actionable
members.
narrowly,
based upon research and
of FDUPTA
See, North American
and the textual statutory reading
Clearing,
of cases like
Alvi Armani.
Inc. v. Brokerage Computer Systems, Inc., 666
F.Supp. 2d 1299 (M.D. Fla. 2009); James D. Hinson Electrical Contracting
Inc. v. Bell South Telecommunications,
Co.,
Inc., 2008 WL 360803 (M.D. Fla. 2008);
True Title, Inc. v. Blanchard,
2007 WL 430659 (M.D. Fla. 2007); Ales Audio
Corporation
Company,
2001).
15654177;1
v. Oem Systems
Inc., 174 F.Supp. 2d 1315 (S.D. Fla.
Once again,
Motion to Dismiss.
any
BBB attempts to
re-plead
CCL's theory to better fit BBB's
In this Count, the wrong alleged is not
BBB's letter
grade or
of its statements regarding CCL alone. Rather, this Count is directed to BBB's
deceptive
business
practice of touting
system for researching
businesses
its supposedly
and producing
ratings, without
favorable ratings are actually for sale to businesses
This deceptive system harms all businesses
objective and quantified
disclosing that
that are willing to pay
that do not choose to pay
BBB.
BBB for
"accredited" status.
CONCLUSION
For the foregoing reasons, it is respectfully submitted that the final judgment
be reversed and that CCL be permitted
to plead its defamation
and FDUTPA
claims.
Respec
lly submitted,
GREENS PO
RDE,
.A.
John H. I'e zer
John H. Pelzer Esq.,
By:
s/
orida Bar No. 376647
John.pelzer,gmlaw. om
Richard W. Ep tein, Esq. Florida Bar No. 229091
Richard.epst in@em w.corn
Jeffrev.backman@gmlaw,corn
Jeffrey A. Baekro~q., Florida Bar No. 662501
200 East Broward Boulevard., Suite 1800
Fort Lauderdale, Florida 33301
954.527.2469, 491.1120;(Fax) 954.333.4069
Attorneys
for Caribbean Cruise
Line, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 10, 2014, I electronically
foregoing with the Clerk
of the Courts by using the ECF system
served the same on counsel
of record
filed the
and electronically
as noted below.
CERTIFICATE OF COMPLIANCE
Undersigned
counsel certifies that TIMES NEW ROMAN, 14 pt.~s-used in
this brief,
By:
Counsel
of Record
AKERMAN LLP
Wesley A, Lauer, Esq,
Tracy T, Segal, Esq.
Rick Kozell, Esq.
222 Lakeview Avenue, Suite 400
West Palm Beach, FL 33401-6147
Phone: 561-653-5000
Fax: 561-659-6313
wesley.lauer@akerman. corn
tracy. segal Qakerman.corn
rick.kozell@akerman. corn
Counsel
John H. P lze
John H. Pel r, Esq.
Florida Bar o. 376647
s/
GREENSPOON MARDER, P,A,
John H. Pelzer, Esq.
Richard W. Epstein, Esq.
Jeffrey A, Hackman, Esq.
200 E, Broward Boulevard, Suite 1800
Fort Lauderdale, Florida 33301
John.pelzer@gmlaw. corn
Richard. [email protected]
Je ffrev,[email protected]
Dotti. cassidy@gmlaw. corn
Maria, salgado@gmlaw. corn
Rachel. [email protected]
for Appellees
Counsel
15654177:1
for Appellant