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  D ISTRICT  C OURT  O F A PPEAL  O F  T  HE S  TATE O F F LORIDA F OURTH D ISTRICT  JulyTerm 2011 LAW OFFICE OF DAVID J. STERN, P.A., Appellant,v. STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, Appellee.No. 4D10-4708[December 14, 2011]S  TEVENSON ,J. This appeal stems froman order denying a petition to quash aninvestigative subpoena duces tecum,issued bytheFlorida Office of theAttorney General (the “OAG”) totheLaw Office of David J. Stern, P.A.(“Law Firm”), pursuant to the Florida Deceptive and Unfair TradePractices Act (FDUTPA). Because the OAG lacked authority underFDUTPA to issue the subpoena, we reverse. The subpoena at issue indicates that “[t]he general purpose and scopeof this investigation extends to possible unfair and deceptive tradepractices, unconscionable acts and/or unfair competition of [Law Firm].” The subpoena sought production ofthirteen categories ofinformationrelating to Law Firm’sforeclosure cases, including: the names andaddresses of all lawyers and/or law firms that Law Firm used torepresent its clients in foreclosure cases; namesand addressesof lendinginstitutions represented by Law Firm in foreclosure cases; names andaddresses of companiesemployed by Law Firm to draft and/or executemortgage assignments or affidavits; namesand addressesof parties hiredto perfect service of process in foreclosure cases; names and addresses of servicing companies represented by Law Firm; names and addresses of any corporations, companies, partnerships or associations, pertaining toLaw Firm’s foreclosure practices, that Law Firm has any interest in;copies of files and documents relating to specifically identifiedforeclosurecases; names of notaries who notarized affidavits regardingfees andmortgage assignments; copies of non-disclosure agreements; andinformation about payments and bonusesmade in relation to work doneon foreclosure cases, including copies of checks from clients. In its  2 petition to quash, Law Firm argued that the OAG lacked authority underFDUTPA because it was not involved in “trade or commerce” as definedby the statute.At the hearing on Law Firm’s petition to quash, the OAG indicatedthat it had received numerous consumer complaints regarding Law Firmpreparing forgeries and fraudulent documents for clients in foreclosurecases and for recordation in county public records. Law Firm explainedthat its practice was limited to representing lenders in residentialforeclosures. Because of that, Law Firm argued that there was no“plausible set of facts that c[ould] be developed that would bring theactivities of [Law Firm] within FDUTPA.” The trial court denied Law Firm’s petition to quash. Whether the trialcourt properly concluded that the OAG had authority under FDUTPA toissue the subpoena presents amatter ofstatutory interpretation that isreviewed de novo. See State, Office of Att’y Gen. v. Shapiro & Fishman,LLP  , 59 So. 3d 353, 355(Fla. 4th DCA 2011) [hereinafter Shapiro & Fishman  ].FDUTPA was enacted “[t]o protect the consuming public andlegitimate business enterprises from those who engage in unfair methodsof competition, or unconscionable, deceptive, or unfair acts or practicesin the conduct of any trade or commerce.” §501.202(2), Fla. Stat.(2010). “Trade or commerce” is defined as:[T]he advertising, soliciting, providing, offering, ordistributing, whether by sale, rental, or otherwise, of anygood or service, or any property, whether tangible orintangible, or any other article, commodity, or thing of value, wherever situated.“Trade or commerce” shall include theconduct of any trade or commerce, however denominated,including any nonprofit or not-for-profit person or activity.§501.203(8). Pursuant to FDUTPA, the OAG may issue an investigativesubpoena when it “has reason tobelieve that a person has engaged in, oris engaging in, an act or practice that violates this part.” §501.206(1).FDUTPA also authorizes the OAG to bring an action seeking declaratoryor injunctive relief,or to bring an action for damages on behalf of consumers. §501.207(1). The subpoena at issue in Shapiro & Fishman  is very similar to theinstant subpoena. There, the OAG issued an investigative subpoena forthe purpose of investigating the “advertising and marketing practices” of   3 the appelleelaw firm. 59 So. 3d at 355. However, the subpoena soughtproduction of documents relating tothirteen different subjects ofthe lawfirm’s representation of various lending institutions in foreclosure cases. Id. at 354. The subpoena requested information regarding:any corporations, companies, partnerships, or associationsin which the law firm and the named partners had anyinterest. It also asked for the names of all servicingcompanies the firm had represented in the past five years; allnon-disclosure agreements the firm executed in the past five years with employees, subcontractors, and independentcontractors; copies of checks or evidence of other paymentfrom plaintiffs represented in foreclosure cases by the firm;and documents on the amount paid to the firm’s employees,subcontractors, and independent contractors for completionof foreclosure cases within a certain time period. Id. TheOAG admitted that the subpoena was issued in “response tocomplaints alleging that the law firm had been fabricating or presentingfalse or misleading documents for utilization in foreclosure cases.” Id. at355. Weaffirmed the trial court’s order quashing the subpoena,reasoning that “the alleged conduct of the law firm . . . d[id]not fall within the rubric of ‘trade orcommerce’ as required for civil investigativesubpoenas under FDUTPA.” Id. at 356. Though the subpoena in the instant case states a different purpose— “deceptive trade practices, unconscionable acts and/or unfaircompetition” as opposed to“advertising and marketing practices”—itseeks the same information sought in Shapiro & Fishman  . Bothsubpoenas were designed to elicit information regarding the law firm’srepresentation in foreclosure cases. Further, the investigator’stestimonyconfirmed that the OAG was investigating the same allegations andcomplaints as those present in Shapiro & Fishman  . Just as in Shapiro & Fishman  , the instant alleged conduct by Law Firm does not constitute“trade or commerce.” See also Kelly v. Palmer, Reifler & Assocs., P.A. ,681 F. Supp. 2d 1356, 1374–77 (S.D. Fla. 2010) (holding that law firm’sissuance of pre-suit demand letters did not constitute “trade orcommerce” and noting that law firm’s acts—“conduct ostensiblyoccurring during the exercise of a legal remedy—had zero connection whatsoever to any ‘trade or commerce’”). Here, as in Shapiro & Fishman  ,the OAG’s subpoena “centers on the law firm’s conduct in the processingof foreclosure cases, as opposed to the initial applications for mortgagesor theinitial lending relationships, which would be more akin to  4 traditional notions of ‘trade or commerce’as defined by the FDUTPAstatute.” 59 So. 3d at 356.Accordingly, the OAG lacked the authority, under FDUTPA,to issuethe subpoena in questionand the trial court’s order must be reversed. Reversed. M AY ,C.J., and C IKLIN ,J., concur. * * * Appeal from the Circuit Court for the Seventeenth Judicial Circuit,Broward County; Eileen M. O’Connor, Judge; L.T. Case No. 10-32965(04). Jeffrey Tew and Spencer Tew of Tew Cardenas LLP, Miami, forappellant.Pamela Jo Bondi, Attorney General, and Jason Vail, AssistantAttorney General, Tallahassee, for appellee. Not final until disposition of timely filed motion for rehearing.
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