Caribbean Cruise Line recently won an interesting victory when Florida’s Fourth District Court of Appeal held that it could pursue an unfair trade practices claim against the Better Business Bureau for awarding it an “F” rating.  See Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 2015 Fla. App. LEXIS 8497 (Fla. Dist. Ct. App. 4th Dist. June 3, 2015).

This was an unusual holding, because BBB ratings are usually treated as protected “opinion” speech under the First Amendment.  Caribbean Cruise Lines got around that, however, by claiming it was not attacking the rating itself, but BBB’s allegedly false representations regarding its methodology for generating the rating.  The court accepted that BBB’s statements about its methodology were factual and, if false, could be the subject of a lawsuit.

If that sounds familiar, it should – it’s exactly the argument that plaintiffs have used in litigation involving mortgage-backed securities.  Numerous plaintiffs have successfully argued that statements regarding appraisals and LTV ratios were false not because the appraisers’ opinions were false, but because the securitizers falsely described the methodology used to reach those opinions. 

Considering the complaints that have been lodged against the BBB, I suppose a decision like this was only a matter of time.  Still, I have to wonder how much this decision will be used to challenge local cartels, versus how much it will be used to flyspeck unfavorable reviewers.