Sep 28, 2021

TLo wins dismissal of tortious interference and FDUPTA claims in Southern District of Florida

The single-action rule and the imputed defamation statute of limitations defense both bar Plaintiff’s tortious interference claim because the claim is premised on defamatory statements and does not set forth an independent tort for the recovery of damages.

Agreeing with arguments made by Thomas & LoCicero attorneys, the U.S. District Court for the Southern District of Florida dismissed claims against two defendants for tortious interference and violating the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) relating to brand-protection services provided to an retailer.  Tymar Distribution LLC v. Mitchell Group USA, LLC and Rivelle Products, Inc., No. 21-21976-CIV-Altonaga/Torres, 2021 WL 4077966 (S.D. Fla. Sept. 8, 2021).

The Plaintiff purchased and re-sold Fair & White personal care products in the “grey market” on  The Plaintiff claimed to have obtained those products from Defendant Mitchell Group USA, LLC, the sole authorized distributor of F&W products in the U.S.  According to the Plaintiff, Mitchell Group hired Rivelle Products, Inc. – which provides brand-protection services – to eliminate the Plaintiff and other grey market resellers of F&W products from competing on Amazon.

More specifically, the Plaintiff accused both Defendants of making knowingly false complaints to Amazon that the Plaintiff was selling counterfeit goods.  The Plaintiff claimed that those complaints resulted in Amazon suspending the Plaintiff from its site.  As a result, the Plaintiff sued both Defendants for tortious interference with business relationship and for violating FDUTPA.

Representing Rivelle, TLo lawyers James J. McGuire, Mark R. Caramanica, and Linda Norbut argued that the Plaintiff’s tortious interference claim was barred by Florida’s single cause of action rule, which prohibits a plaintiff from avoiding defenses to a defamation claim by relabeling his claim as a different tort.  In dismissing the tortious interference claim, the Court offered a ringing endorsement of the single-action rule:

The underpinnings of the single-action rule make clear that it does not matter whether the defamation claim fails, succeeds, or is not brought at all. . . . Strategically not pleading a defamation count to avoid application of the rule is [a] type of gamesmanship . . . [that] would allow a plaintiff to circumvent[ ] a valid defense to defamation by recasting essentially the same facts into several causes of action all meant to compensate for the same harm. . . .   Certainly, the protections afforded by [defenses to defamation] cannot be undone by engaging in a semantic exercise such as this.  

The Court also dismissed the Plaintiff’s FDUTPA claim because it failed to allege consumer harm as required under FDUTPA.  The complaint alleged that prices increased for F&W products, but made no allegations about other, competing beauty-care products.  As TLo argued, and as the Court agreed, consumer harm under FDUTPA parallels consumer harm under the Sherman antitrust laws, but “reduction in intrabrand competition is not an anticompetitive effect under the Sherman Act.” As the Court explained, because the Plaintiff “has not sufficiently alleged consumer harm, . . . its FDUTPA claim must be dismissed.”

With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida-based firm with a national practice focused on Media and Free Speech, Business Litigation, Intellectual Property & Marketing, and Data Privacy & Security.  Clients benefit from the firm’s extensive knowledge and experience in defamation, complex commercial litigation, business torts, breach of contract, antitrust and unfair competition, invasion of privacy, trademark, and copyright.

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