reconsidering, court rules that FDUTPA covers more than Lanham Act “advertising,” reinstates only state claims

Westgate Resorts,
Ltd. v. Reed Hein & Assoc., LLC, 2020 WL 3265972, No.
6:18-cv-1088-Orl-31DCI (M.D. Fla. Apr. 27, 2020)

the court dismissed
Lanham Act false advertising and coordinate state law
claims against timeshare exit purveyors. Here, the court reverses part of its
earlier holding, with respect to non-advertising-based state law claims.
Although courts often say that federal Lanham Act and state law claims are
subject to the same analysis, that is an overstatement; in some circumstances,
state laws are broader.

FDUTPA covers
deceptive acts and practices that go beyond advertising. Westgate alleged that,
once in contact with Westgate timeshare owners, defendants committed “unfair
and deceptive acts and practices” by “instruct[ing] owners of Westgate
timeshare interests to stop making payments of validly assessed maintenance and
taxes, and of legitimately owed note and mortgage payments, to Westgate in
Florida, which damages Westgate.” Owners who started out current on their
payments were allegedly deceived into thinking they could safely exit without
foreclosure and stopped payments at defendant TET’s instruction, when in fact
they defaulted and entered into foreclosure. These allegations were supported
by testimony from customers of TET. This plausibly proximately caused Westgate’s
damages and might entitle Westgate to injunctive relief, even if the conduct was
no longer ongoing. “[A] jury could find that TET engaged in deceptive practices
by guaranteeing owners that it could legitimately exit them from their
timeshare interests and instructing those same owners to stop making payments
to Westgate, knowing that it would not actually negotiate with Westgate, that
Westgate would likely foreclose, and that TET would simply claim that it had
successfully ‘terminated’ the owners’ timeshare interests without disclosing
the foreclosure.”


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