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Filing # 179993273 E-Filed 08/18/2023 01:26:11 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CODY KERNS, KERNS CAPITAL CIRCUIT CIVIL – CBL DIVISION 44
MANAGEMENT, INC., and WFTMB
Holdings, LLC
Case No. 2023-020202-CA-01
Plaintiffs,
v.
FXWINNING, LTD., JONATHAN
LOPEZ, JULIAN KUSCHNER, DAVID
MERINO, RENAN DA ROCHA GOMES
BASTOS, RAFAEL BRITO CUTIE, and
BBRC REAL ESTATE, LLC
Defendants.
___________________________________/
DEFENDANTS JULIAN KUSCHNER’S AND JONATHAN LOPEZ’S
MOTION TO DISMISS THE COMPLAINT
Defendants Julian Kuschner and Jonathan Lopez move for entry of an order dismissing
the Complaint (D.E. 2) filed by Plaintiffs Cody Kerns, Kerns Capital Management, Inc., and
WFTMB Holdings, LLC, in its entirety as to Kuschner and Lopez.
INTRODUCTION
This case – at least as it pertains to Defendants Julian Kuschner and Jonathan Lopez – is
about a hedge fund trying to save face after it purportedly lost millions of its clients’ money
when an overseas foreign exchange currency trading (“forex”) platform called FxWinning went
belly-up. Looking for a way to explain the losses to their investors, Plaintiffs Cody Kerns and
Christopher McGinnis (through Plaintiff WFTMB) attempt to deflect attention elsewhere by
fashioning unsubstantiated claims that Kuschner and Lopez, their co-investors in the failed
platform, were engaged a fraudulent conspiracy “that evokes thoughts of FTX and Bernie
Madoff.” Compl. ¶ 1. But the Complaint shows why hyperbole is no substitute for proper
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pleading. The Counts against Kuschner and Lopez – for fraud, conspiracy, negligent
misrepresentation, FDUTPA violations, unjust enrichment, and fraudulent transfers – are wildly
deficient and make clear that Plaintiffs used charged terms like fraud and conspiracy for
headlines but lack the facts to support them.
As shown below, the Complaint is filled with conclusory allegations about how
Defendants committed fraud and engaged in a conspiracy and lacks basic facts and particularity
about the foundational elements of the fraud – such as what statements Kuschner and Lopez
made that were false or how they knew those unidentified statements were false. There are also
no allegations about how Defendants worked together, much less about how the conspiracy was
formed, how Kuschner and Lopez agreed to participate in it, what they agreed to do, or what
overt acts they took in furtherance of the conspiracy. Plaintiffs also allege – in a thinly veiled
attempt to mask pleading deficiencies – that Kuschner and Lopez were a part of the “fraud” and
“conspiracy” because they were “agents” or “partners” of the FxWinning owners and employees.
Yet beyond incanting the word “agents,” the Complaint alleges no support for how Kuschner and
Lopez were agents or partners, what role they played in FxWinning’s operations, or how they
shared in FxWinning’s profits. Other places in the Complaint allege the opposite, that Kuschner
and Lopez were investors, not FxWinning owners or employees, who have suffered
commensurate losses on their respective investments. Plaintiffs also violated basic pleading
requirements by improperly commingling all Defendants together in virtually every Count.
These deficiencies, individually and collectively, contaminate the entire Complaint.
Plaintiffs also try to take Kuschner’s and Lopez’s homes through fraudulent transfer
claims, even though the parties have no contractual relationship, there are no insolvency
allegations, and Kuschner and Lopez allegedly bought their homes months before FxWinning
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failed and Plaintiffs filed their current lawsuit. There are other independent grounds for
dismissal for the other Counts. Thus, while Kuschner and Lopez cannot control what Plaintiffs
say – no matter how false – they show below why the Court should dismiss Plaintiffs’
imaginative attempts to shift blame on them.
FACTUAL BACKGROUND
We summarize below the key factual allegations that relate to Kuschner and Lopez,
which, even if viewed with all permissible inferences favoring Plaintiffs, do not meet the
required pleading standards to sustain causes of action against Kuschner and Lopez.
1. ALLEGATIONS RELATING TO THE PARTIES, AGENCY, AND PARTNERSHIP
We start with the critical distinction between the different Defendants. FxWinning was,
upon information and belief, at all material times founded and owned by Defendant Merino.
Compl. ¶ 15. Defendant Brito served as FxWinning’s CEO and a co-owner with Merino. Id. ¶
17. FxWinning, Merino, and Brito are all foreign defendants. Id. ¶¶ 12, 15, 17. Defendant da
Rocha is also alleged to be the “de facto principal operations manager for FXWinning in the
United States.” Id. ¶ 16. We describe these Defendants as the “FxWinning Defendants” because
they are the only Defendants identified as owners, operators, or employees of FxWinning.
The Complaint meagerly gestures at painting Lopez and Kushner as “agents” of or
“partners” with the FxWinning Defendants. Id. ¶ 28-29, 42, 54-55. But the conclusory
allegations about agency and partnership contain no facts explaining how Lopez and Kushner
were actually agents, what authority they were given as agents, or how they were partners of the
FxWinning Defendants. Rather, Plaintiffs simply make statements like, “Kuschner, Lopez,
Merino, da Rocha, and Brito were at all material times hereto acting as one another’s agents” and
“acting as agents of FXWinning.” Id. ¶ 28-29; see, e.g., id. ¶¶ 40, 79. Plaintiffs also do not
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allege that Lopez and Kushner owned FxWinning or to have shared in the Platform’s profits with
its owners. See, e.g., id. ¶ 74 (explaining how Brito, as a co-owner, “received a portion of the
profits”). Nor are Lopez and Kushner identified as employees or individuals with some
operational control of FxWinning’s business. Not only are no facts presented to support the
“agency” claim, but paradoxically, the Complaint repeatedly alleges that, like Plaintiffs, Lopez
and Kushner were investors in FxWinning with tens of millions invested and allege numerous
facts to support that allegation. Id. ¶¶ 42, 57-58.
Moreover, despite the clear distinction between the FxWinning Defendants and Lopez
and Kushner, Plaintiffs repeatedly and improperly commingle all Defendants together wherever
possible, including in the specific Counts. See, e.g., ¶¶ 1, 2, 4, 6, 93, 95-98, 105-133, 138-143.
2. ALLEGATIONS RELATING TO KUSCHNER AND LOPEZ
The Complaint alleges that in December 2021 or January 2022, Kuschner or Lopez,
approached Kerns about a “new investment opportunity” with FxWinning. Compl. ¶¶ 40-41.
Kuschner and Lopez then showed Kerns their own customer accounts, which showed they were
“achieving rates of return of 8% to 15% each month.” Id. ¶ 42, 57. McGinnis, who allegedly
assigned his potential claim to Plaintiff WFTMB, alleged that “Kuschner began soliciting him to
begin trading in foreign currency through FXWinning” in June 2023, which is a date that
contradicts other allegations. Id. ¶¶ 51-53. He claims that Lopez and Kuschner showed him
their accounts, which contained $21 million and between $5-6 million, respectively, and other
accounts with hundreds of millions in them. Id. ¶ 57. Kuschner and Lopez also purportedly told
Plaintiffs that they had “fully vetted FXWinning” and it was a safe platform that was sufficiently
liquid. Id. ¶¶ 43-44, 53-55. Kuschner and Lopez also allegedly told Kerns that “if anything
were to ever go wrong with his investment, [they] would facilitate a safe and easy exit process
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whereby Kerns could withdraw his funds from FXWinning.” Id. ¶ 46. These allegations show
that Lopez and Kuschner told Kerns and McGinnis about their personal experience investing
with FxWinning, which they felt was a safe enough place for them to invest over $25 million. At
no point do Plaintiffs allege that any of these statements were false, or that Kuschner’s and
Lopez’s customer accounts or other information they shared were fake, inaccurate, or
misleading. There are also no specific allegations showing how Kuschner and Lopez knew or
should have known that any of the representations they made were false.
Lopez and Kuschner were not Kerns’ and McGinnis’ only source of information about
FxWinning. Kerns and McGinnis reviewed FxWinning’s website before investing and alleged
that FxWinning “claimed to be a legitimate online foreign exchange brokerage.” See id. ¶¶ 31,
47. The Complaint points to several representations on the website about why investors should
invest with FxWinning. See, e.g., id. ¶ 31-39. It, among other things, “guarantee[d]” the “best
spreads and trading conditions” for forex trading and represented that it was a “a safe and
competent broker.” Id. ¶ 33. FxWinning’s terms also offered quick withdrawals and touted its
liquidity provider partnerships with reputable companies like UBS, Citi, Barclays, and Morgan
Stanley. Id. ¶ 35. There are no allegations that Kuschner or Lopez had anything to do with
FxWinning’s website or knew that FxWinning’s communications were false.
The Complaint also shows how Plaintiffs eagerly invested and reinvested in FxWinning.
After McGinnis deposited $495,000 on FxWinning, Kuschner and Lopez allegedly told him that
if he “wanted Merino to take him seriously” he would need to have his account “over $1 million
as soon as possible.” Id. ¶¶ 60-61. That apparently was all the prompting McGinnis needed to
more than double his investment. Id. ¶ 62. In September 2022, Plaintiffs asked Kuschner how
much money was needed to receive a VIP “MAM account” and to “earn higher returns from
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FxWinning.” Id. ¶ 64. Kuschner told them he believed it was $3.5 million. Id. Kerns
unprompted, volunteered “I gotta get another 800 in asap.” Id. Lopez confirmed the $3.5
million deposit requirement and “told Kerns that there was a ‘huge line’ of investors waiting to
join the VIP group.” Id. ¶ 65. Kerns – apparently eager to join the VIP group – invested more.
Id. ¶ 66. McGinnis, whose account had jumped up to over $3.5 million, purportedly “avoided
making withdrawals” to keep his balance above the VIP group threshold. Id. ¶ 67. Again, the
Complaint does not follow these statements with a specific allegation showing how Kuschner
and Lopez knew or should have known that any of their representations were false.
In early 2023, FxWinning advised its customers that it “was undergoing a Know Your
Customer/Anti-Money Laundering” audit and that all accounts would be frozen during the audit.
Id. ¶¶ 76, 83. After that, Kuschner and Lopez told Kerns that they met with Merino and Brito
about the audit, “saw $3 billion in FXWinning liquidity with their own eyes,” and that Kerns’
money was “safe, and that all money would be released and paid.” Id. ¶¶ 79-80. Again,
nowhere do Plaintiffs allege how Kuschner or Lopez knew or should have known these
statements by their fellow investors about their already frozen money were false.
Then in June, “after Plaintiffs had been notified that FXWinning had passed its
compliance requirements, FXWinning just shut down completely.” Id. ¶¶ 5, 91. Plaintiffs claim
they have about $6 million in the Kerns Account, $12.7 million in the Kerns Capital Account,
and $9.7 million in the McGinnis Account that “Defendants” did not return. Id. ¶¶ 95-97.
3. THE CAUSES OF ACTION AGAINST KUSCHNER AND LOPEZ
After describing the problems that many FxWinning’s investors – including Plaintiffs,
Kuschner, and Lopez – encountered when FxWinning shut down, Plaintiffs sued seven
defendants in a nine-count Complaint. Six Counts are alleged against Kuschner and Lopez for
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fraud (Count I); FDUTPA violation (Count II); conspiracy to defraud (Count III); negligent
misrepresentation (Count IV); unjust enrichment (Count VI); and fraudulent transfer (Count VIII
and IX). See id. ¶¶ 105-11, 112-21, 122-27, 128-33, 138-43, 150-55, 156-61.
ARGUMENT
The Court should dismiss the Complaint as to Kuschner and Lopez in its entirety for
several reasons: (I) pleading failures that span across multiple Counts; and (II) pleading failures
specific to the individual Counts. For the former, the Complaint accuses Kuschner and Lopez –
who they readily acknowledge were, like Plaintiffs, investors in FxWinning with tens of millions
deposited – of committing fraud, engaging in a conspiracy, and of being “agents” of or
“partners” with the FxWinning Defendants. These types of claims require specific allegations of
fact that are completely absent from the Complaint. Also, Plaintiffs, presumably to bolster their
claims against each Defendant, improperly commingle allegations, making it impossible for the
Court or Kuschner and Lopez to understand what specific allegations are asserted against them,
and call into question whether such assertions are factually supported at all. For the latter, we
show why each Count against Kuschner and Lopez is fatally defective.
I. PLEADING FAILURES ACROSS MULTIPLE COUNTS
We first address below the three pleading failures that apply across multiple Counts.
1. PLAINTIFFS FAIL TO PLEAD ANY OF THE FRAUD, CONSPIRACY, OR
MISREPRESENTATION COUNTS WITH THE REQUISITE PARTICULARITY
The Court should dismiss Counts I (fraud), II (FDUTPA), III (conspiracy to commit
fraud), and IV (negligent misrepresentation) because they all do not even try to meet Florida
Rule of Civil Procedure 1.120(b)’s heightened pleading requirements. See Simon, 883 So. 2d at
833 (applying the heightened pleading standard to fraud claims); State Farm. Mut. Auto. Ins. Co.
v. Performance Orthopaedics & Neurosurgery, LLC, 278 F.Supp.3d 1307, 1328 (S.D. Fla. 2017)
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(applying the heightened pleading standard for fraud-based FDUTPA claim); Ocala Loan Co. v.
Smith, 155 So. 2d 711, 716 (Fla. 3d DCA 1963) (“[t]he requirements governing fraud apply to
averments charging conspiracy”); Eagletech Commc’ns., Inc. v. Bryn Mawr Inv. Grp., Inc., 79
So. 3d 855, 863 (Fla. 4th DCA 2012) (granting motion to dismiss a conspiracy Count because
the plaintiff did not “set forth clear, positive, and specific allegations of civil conspiracy”)
(citation omitted); Morgan v. W.R. Grace & Co., 779 So. 2d 503, 506 (Fla. 2d DCA 2000)
(applying the heightened pleading standard for negligent misrepresentation claims). As shown
below, none of the four fraud-based Counts assert any particularized allegations or identify
specific misrepresentations or omissions of fact. Instead, they are filled with conclusory
allegations, legal conclusions, and incorporate all 104 paragraphs of general allegations and
invite the reader to guess which allegations “outlined above” support Plaintiffs’ fraud-based
claims. See Compl. ¶¶ 105-06, 112, 115-16, 122-23, 128-29.
Count I for fraud is deficient because it simply states that Defendants “made false
statements” and that the Defendants “knew that the statements were false when they made them
to Plaintiffs.” Compl. ¶¶ 106-07. Nothing about those allegations is particularized or identifies
with required specificity the key elements of fraud, such as what false statements were made and
how the Defendants knew the statements were false. Count II, asserting FDUTPA violations, is
insufficient because it only alleges that Plaintiffs are “consumers” and that Defendants
committed “deceptive acts” and “unfair and unconscionable acts” in “the conduct of their trade
or commerce” without any accompanying detail. Id. ¶¶ 113-15. It adds that Defendants’
“misrepresentations are deceptive and offend established public policy and are immoral,
unethical, oppressive, unscrupulous, and substantially injurious to Plaintiffs.” Id. ¶ 117. But
again, there are no particularized allegations to support those legal conclusions, either.
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Count III for conspiracy is similarly deficient. It alleges that Defendants “did agree to
commit an unlawful act” and “did all do some overt act in pursuant [sic] of the conspiracy” with
no detail about how there was an agreement, what the agreement contained, or what overt acts
Defendants took in furtherance of the conspiracy. Id. ¶ 123-25 (emphasis added). Count IV for
negligent misrepresentation is deficient because it simply alleges that Defendants “made
misrepresentations of material fact that they believed to be true but were in fact false” without
specifying what misrepresentations were made or why they were false. Id. ¶ 129; see id. ¶ 131.
Allegations of fraud and conspiracy are not to be taken lightly and require heightened
pleading to survive a motion to dismiss. If Plaintiffs want to plead those Counts, they must plead
them correctly and put Kuschner and Lopez on notice of the particulars alleged against them.
See Eagletech Commc’ns., Inc., 79 So. 3d at 862 (affirming dismissal of a fraud count because it
lumped defendants together “and failed to identify which defendant made which statement”);
Simon, 883 So. 2d at 833; Reina v. Gingerale Corp., 472 So. 2d 530, 531-32 (Fla. 3d DCA 1985)
(“Fraud is never presumed and where it is the basis of a pleading, the essential facts, and not
legal conclusions, which constitute fraud must be set out clearly, concisely and with sufficient
particularity to apprise the opposite party of what he is called upon to answer.”); Transatlantic,
LLC v. Humana, Inc., 666 F. App’x 788, 789 (11th Cir. 2016) (“[W]hen the alleged fraud
involves multiple defendants, Rule 9(b)1 requires that the plaintiff plead sufficient facts to
‘inform each defendant of the nature of [its] alleged participation in the fraud.’”). Meridian Tr.
Co. v. Batista, 2018 U.S. Dist. LEXIS 166556, at *26 (S.D. Fla. Sep. 24, 2018) (dismissing
conspiracy claims that failed to “satisfy the heightened pleading standard” which required
plaintiffs “at least show some evidence of agreement between the defendants”); Corbett v.
1
Federal Rule of Civil Procedure 9(b) is the “federal counterpart” to Rule 1.120. See Perkins v.
Nat’l LGBTQ T.F., Inc., 580 F. Supp. 3d 1236, 1240 (S.D. Fla. 2021).
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Transp. Sec. Admin., 968 F. Supp. 2d 1171, 1191 (S.D. Fla. 2012) (dismissing conspiracy claims
where the allegations were “too nonspecific and insufficient to sustain any inference” of an illicit
agreement). Counts I, II, III, and IV must be dismissed.
2. THE COMPLAINT VIOLATES BASIC PLEADING REQUIREMENTS BECAUSE IT
IMPROPERLY COMMINGLES ALLEGATIONS AGAINST SEPARATE DEFENDANTS
Commingling distinct causes of action against multiple defendants violates Florida Rule
of Civil Procedure 1.110(f). Collado v. Baroukh, 226 So. 3d 924, 928 (Fla. 4th DCA 2017); see
also Fla. R. Civ. P. 1.110(f). A plaintiff “should plead each distinct claim in a separate count,
rather than plead the various claims against all defendants together.” K.R. Exch. Servs. v. Fuerst,
Humphrey, Ittleman, PL, 48 So. 3d 889, 893 (Fla. 3d DCA 2010). Otherwise, the pleading
violates basic pleading rules. See id. Plaintiffs fall far short of those obligations here.
In five separate Counts (Count I, II, III, IV, and VI) Plaintiffs make conclusory
allegations against all defendants without specifying how each is individual defendant is
responsible for them. As mentioned above, those Counts “re-allege[s] and incorporate through
reference” all the general allegations, some of which have nothing to do with Kuschner or Lopez.
Compl. ¶¶ 105, 112, 122, 128, 138, 150, 156. Then, each Count combines its conclusory and
improperly commingled allegations among multiple FxWinning Defendants, Kuschner, and
Lopez for the material elements of the claims. See ¶¶ 105-06, 115, 117, 123, 126-27, 130, 140.
The commingled nature of all these key allegations makes it impossible for Kuschner and Lopez
to identify what facts are specifically alleged against them. See K.R. Exch. Servs., 48 So. 3d at
891, 893 (affirming the dismissal of a complaint that commingled “forty-seven numbered
paragraphs containing factual allegations and legal conclusions concerning the malpractice
claims against [the attorneys], as well as the claims against [non-attorneys]”); Collado, 226 So.
3d at 928 (finding Rule 1.110(f) violated “[b]y commingling separate and distinct claims against
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multiple defendants” and dismissing the complaint under Rule 1.420(b)).
Further, the commingling problem is amplified by the fact that four Counts (Count I, II,
III, and IV) are fraud-based claims. See Simon v. Celebration Co., 883 So. 2d 826, 833 (Fla. 5th
DCA 2004) (“The lack of specificity is particularly troublesome here where nine separate
defendants are lumped together in each Count in a complaint that often fails to particularize
which of the nine defendants made which statements.”). Commingling the allegations against all
Defendants is the antithesis of particularized allegations of wrongdoing required for those
Counts. Thus, Counts I, II, III, IV and VI should be dismissed as to Kuschner and Lopez.
3. THE COMPLAINT FAILS TO SUFFICIENTLY ALLEGE THAT KUSCHNER AND LOPEZ WERE
PARTNERS OR AGENTS OF THE FXWINNING DEFENDANTS
Commingled Counts (Count I, II, III, IV, and VI) also fail because they suggest, either
directly or indirectly through their incorporation of the general allegations, that Kuschner and
Lopez should be held responsible for their roles as the FxWinning Defendants’ “agents” or
“partners,” even though the Complaint fails to offer facts supporting the existence of those
relationships. See, e.g., Compl. ¶¶ 2, 28-29, 40, 42, 54-55, 79, 106, 129. If a plaintiff seeks to
hold defendants liable premised on a partnership or agency relationship, the complaint has to
adequately allege that relationship. See McFee v. Carnival Corp., 2020 U.S. Dist. LEXIS
263944, at *16-17 (S.D. Fla. Apr. 22, 2020). To show agency, a party must allege that: (1) the
principal acknowledged that the agent will act for it; (2) the agent manifested an acceptance of
that undertaking; and (3) there was control by the principal over the actions of the agent. Franza
v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1234-36 (11th Cir. 2014). A partnership
requires “the association of two or more persons to carry on as co-owners of a business for
profit.” Fla. Stat. § 620.8202(1).
The conclusory allegations throughout the complaint about agency and partnership
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contain no facts explaining how Lopez and Kushner were agents, what authority they were given
as agents, or how they were partners of the FxWinning Defendants. Rather, Plaintiffs simply
make statements like, “Kuschner, Lopez, Merino, da Rocha, and Brito were at all material times
hereto acting as one another’s agents” and “acting as agents of FXWinning.” Id. ¶ 28-29; see,
e.g., id. ¶¶ 40, 79. Similarly, the Complaint alleges that Kuschner and Lopez repeatedly referred
to Merino and Brito as their “partners,” but fails to support that relationship with factual
allegations. Compl. ¶¶ 42, 54-55. Plaintiffs do not allege that Lopez and Kushner owned
FxWinning or to have shared in the Platform’s profits with its owners. See, e.g., id. ¶ 74. Nor
are Lopez and Kushner identified as employees or individuals with some operational control of
FxWinning’s business. Rather, the Complaint repeatedly explains that, like Plaintiffs, Lopez and
Kushner were investors in FxWinning with tens of millions invested. Id. ¶¶ 42, 57-58.
As a result, the Court should dismiss the Counts based on an insufficiently pled agency or
partnership relationship. See McFee, 2020 U.S. Dist. LEXIS 263944, at *18 (dismissing claims
premised on agency relationship between a cruise company and a travel agency because the
plaintiffs did not allege the cruise company acknowledged the travel agency would act on its
behalf, the travel agency manifested an acceptance, and the essential element of control).
II. PLEADING FAILURES IN THE SPECIFIC COUNTS
Next, we turn to more specific deficiencies in each Count outside the commingling,
fraud-based pleading, and agency and partnership pleading problems identified above.
1. THE COMPLAINT FAILS TO STATE A CLAIM FOR FRAUD (COUNT I) AND FOR
NEGLIGENT MISREPRESENTATION (COUNT IV) BECAUSE IT DOES NOT SPECIFY A
SINGLE FALSE STATEMENT OF MATERIAL FACT
We start with the Complaint’s deficiencies relating to the knowledge element of the fraud
and negligent misrepresentation claims. A claim of fraud must include: (1) a false statement of
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material fact; (2) by a person who knows or believes it to be false; (3) that the person intended
that the representations would induce another to rely and act on it; and (4) resulting injury. See
Black Diamond Props. v. Haines, 69 So. 3d 1090, 1094-95 (Fla. 5th DCA 2011). Similarly,
negligent misrepresentation requires: (1) a misrepresentation of a material fact; (2) that the
representer either knew of the misrepresentation, made the misrepresentation without knowledge
of its truth or falsity, or should have known the representation was false; (3) the representer
intended to induce another to act on the misrepresentation; and (4) injury. Hirsh v. Silversea
Cruises Ltd., 2015 U.S. Dist. LEXIS 191529, at *11-12 (S.D. Fla. Mar. 5, 2015).
If the Court moves past the commingled and generalized allegations of fraud, it should
still dismiss the fraud Count because it does not identify which statements by Kuschner or Lopez
were false, why those unidentified statements were false, or how Kuschner or Lopez knew they
were false when they made them. Rather, the allegations suggest that Kuschner and Lopez, who
had millions of their own funds invested in FxWinning believed that the platform was a safe
place to invest based on the information provided to them. The commingled and generalized
allegations about how all the Defendants should have known that FxWinning was a fraudulent
scheme are insufficient. See Compl. ¶¶ 1, 98, 107, 130; Simon, 883 So. 2d at 833 (a false
representation of fact “can only be satisfied when the pleading identifies specific facts and states
how they were false. . . [N]owhere within the complaint do the Simons state how these
representations were false. The complaint simply alleges the conclusory statement that the
representations were false, a legally insufficient allegation under the strict pleading requirements
for a claim predicated on fraud.”). Thus, without specific allegations showing Kuschner and
Lopez knowingly made false statements of fact, Plaintiffs’ fraud claim must be dismissed.
The negligent misrepresentation claim fails for the same reasons. The Complaint, other
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than the insufficient generalized allegations mentioned above, does not assert any particularized
allegations about which false statements Kuschner or Lopez made, which statements they made
without knowledge of their truth or falsity, or why they should have known that any statement
was false. Counts I and IV must be dismissed as to Kuschner and Lopez.
2. THE COMPLAINT FAILS TO STATE A VIOLATION OF FDUTPA (COUNT II) BECAUSE IT
FAILS TO ALLEGE THAT KUSCHNER AND LOPEZ HAD CONTROL OVER CORPORATE
DECEPTIVE PRACTICES AND SPECIFIES NO PRACTICES THAT WERE MISLEADING
The Court should also dismiss the FDUTPA Count because Plaintiffs have failed to plead
the requisite elements for that claim. To state a FDUTPA claim, a plaintiff must allege: (1) a
deceptive act or unfair trade practice; (2) causation; and (3) actual damages. See Dolphin LLC v.
WCI Cmtys., Inc., 715 F.3d 1243, 1250 (11th Cir. 2013). To proceed against an individual for a
FDUTPA violation, a plaintiff must allege the individual was a “direct participant” in dealings
that violated the statute. Aboujaoude v. Poinciana Dev. Co. II, 509 F. Supp. 2d 1266, 1277 (S.D.
Fla. 2007). Further, “it is necessary to show that an individual defendant actively participated in
or had some measure of control over the corporation’s deceptive practices.” KC Leisure, Inc. v.
Haber, 972 So. 2d 1069, 1073 (5th DCA 2008) (emphasis added). A plaintiff cannot simply
make general allegations without detail about what the defendant did and how those actions
violate FDUTPA. See Aboujaoude, 509 F. Supp. 2d 1266, 1277 (dismissing FDUTPA claim
where plaintiffs “made general allegations against [individual defendant], but they do not specify
his individual actions and how they constitute a violation of FDUTPA”).
As explained above, Plaintiffs have not alleged that Kuschner or Lopez participated in or
had some measure of control over FxWinning. Plaintiffs at no point allege that Kuschner and
Lopez had any official role at FxWinning, much less ownership or control. Rather, the
Complaint makes clear that only the FxWinning Defendants had formal roles at FxWinning.
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None of these claims impute sufficient corporate control to Kuschner or Lopez, let alone
individual liability for any theoretical FDUTPA violation by FxWinning. Even if the Complaint
properly connected them to FxWinning’s corporate practices, it does not sufficiently identify any
specific deceptive acts, since it does not allege a single statement they made that was fraudulent
or misleading. Plaintiffs also fail to identify which practices – advertising, soliciting, providing,
offering, or distributing – were deceptive or unfair. Count II must be dismissed.
3. COUNT III FOR CONSPIRACY TO COMMIT FRAUD FAILS TO SUFFICIENTLY ALLEGE
THAT THERE WAS KNOWLEDGE, AGREEMENT, AND OVERT ACTS BETWEEN
KUSCHNER, LOPEZ, AND OTHER DEFENDANTS
The Court should also dismiss Count III for conspiracy. See Eagletech Commc’ns., Inc.,
79 So. 3d at 863. A claim of conspiracy must allege: (1) an agreement between two or more
parties; (2) to do an unlawful act or lawful act by unlawful means; (3) the doing of an overt act in
pursuance of the conspiracy; and (4) resulting damages. See Gilison v. Flagler Bank, 303 So. 3d
999, 1004 (Fla. 4th DCA 2020). Count III fails to set forth any clear, positive, and specific
allegations of the key elements of conspiracy of an agreement and overt acts.
In Count III, Plaintiffs make conclusory allegations that Kuschner, Lopez, and the
FxWinning Defendants “did come to an agreement to commit fraud” and “did agree to commit
an unlawful act — that is, commit fraud, — against Plaintiffs.” Compl. ¶¶ 123-24. It cannot get
much more vague than this. The Complaint offers no facts to support the claim that there was a
knowing agreement between the Defendants. In fact, it does not even allege how the Defendants
worked together or how Kuschner or Lopez worked for the FxWinning Defendants. These
conclusory allegations – devoid of detail and circularly premised on the assumption that these
conclusions are true because Plaintiffs say so and nothing more – do not show knowledge or
agreement. See Angell v. Allergan Sales, LLC, 2019 U.S. Dist. LEXIS 142768, at *55-56 (M.D.
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Fla. Aug. 22, 2019) (finding a failure to allege an agreement when the plaintiffs “to allege facts
sufficient to raise a plausible inference that [the defendant] knew of the [] scheme to defraud”);
Honig v. Kornfeld, 339 F.Supp.3d 1323, 1346-47 (S.D. Fla. 2018) (the complaint failed to “plead
the existence of a separate civil conspiracy whereby the [] Defendants knowingly entered into an
agreement with [] insiders to recommend and sell unregistered [] securities”); Wardak v.
Goolden, 2020 U.S. Dist. LEXIS 91816 (S.D. Fla. May 22, 2020), at *23 (“There must be
evidence to show that the parties reached an understanding to commit the actionable wrongs
supporting the conspiracy. . . . [I]t is possible that [the defendants’] interests were aligned,
however, that alone is insufficient to allege a conspiracy.”).
The same problem is true for the alleged overt acts. The Complaint alleges Kuschner,
Lopez, and the FxWinning Defendants “did all do some overt act in pursuant [sic] of the
conspiracy,” id. ¶ 125, without providing any clear, positive, and specific allegations about how
this conspiracy showed itself. The Court should dismiss Count III.
4. COUNT VI FOR UNJUST ENRICHMENT FAILS BECAUSE THERE IS NO DIRECT BENEFIT
The Court should also dismiss Count VI for unjust enrichment because the Complaint
confirms that Plaintiffs did not confer a direct benefit on Kuschner or Lopez. Florida law
requires a plaintiff to directly confer a benefit to the defendant to maintain an unjust enrichment
claim. Kopel v. Kopel, 229 So. 3d 812, 818 (Fla. 2017). Plaintiffs allege they deposited funds
with FxWinning to profit from FxWinning’s trading algorithms. See Compl. ¶¶ 42-50. Nowhere
do they claim that they transferred funds directly to Kuschner or Lopez. See id.; Compl. ¶¶ 59-
62. At best, Plaintiffs claim that Kuschner and Lopez benefitted indirectly from Plaintiffs’
business at FxWinning through commissions. See Compl. ¶¶ 69-75. Because any direct
connection was with FxWinning, not Kuschner and Lopez, Count VI must be dismissed. See
16
AMERICAS 124766964
CFLP P’ship, LLC. V. Diamond Blue Int’l, Inc., 352 So. 3d 357, 359 (Fla. 3d DCA 2022)
(reversing summary judgment on an unjust enrichment claim because plaintiff never contracted
with the defendant, paid another party, and the defendants provided no services to the plaintiff).
5. THE COMPLAINT FAILS TO STATE A CLAIM FOR FRAUDULENT TRANSFER (COUNTS
VIII AND IX) FOR SEVERAL REASONS
Plaintiffs in Counts VIII and IX ask this Court to conclude that Kuschner and Lopez
engaged in fraudulent transfers when they bought their homes with “ill-gotten gains from the
FXWinning scheme.” Compl. ¶¶ 150-61. These Counts are frivolous for at least three reasons.
First, only creditors can bring a claim for fraudulent transfer. The Florida Uniform
Fraudulent Transfer Act (“FUFTA”) provides that a “creditor” is a “person who has a claim,”
and a claim is defined as a “right to payment.” §§ 726.102(3), (4), Fla. Stat. If a party is
claiming to be a creditor, they “must plead factual allegations establishing the creditor/debtor
relationship.” Court-Appointed Receiver for Lancer Mgmt. Grp., LLC v. Redwood Fin. Grp.,
Inc., 2010 U.S. Dist. LEXIS 72544 at *7 (S.D. Fla. Jul. 16, 2010). But Plaintiffs are not
creditors and have nothing remotely close to resembling a claim against Kuschner or Lopez.
Counts VIII and IX allege that “given that” Kuschner and Lopez “owed and owes Plaintiffs for
the scheme perpetrated against Plaintiffs, Plaintiffs possessed a ‘claim’” and are “creditors.”
Compl. ¶¶ 152, 158. Thus, Plaintiffs allege they meet the definition for a “claim” against
Kuschner and Lopez – despite no contractual relationship – because Plaintiffs feel that Kuschner
and Lopez “owe[]” them. Certainly, the legislature did not intend to define “claim” to include
the absurd situation presented here a party decides that, months after an unrelated “transfer” was
made, they feel the transferor “owed” them something. FUFTA is “not a catchall statute to
permit an entity which has transferred its assets to others or had them stolen to recover those
assets from whomever may be in possession of them as a substitute for a direct cause of action
17
AMERICAS 124766964
against that person or entity.” In re Wiand, 2008 U.S. Dist. LEXIS 108164, at *19 (M.D. Fla.
Jan. 28, 2008).
Second, Plaintiffs fail to allege that their specific funds were ever used for the purchases
of the real property at issue. See Compl. ¶¶ 151, 157. Neither claim of fraudulent transfer
against Kuschner or Lopez states that they received any funds directly from Plaintiffs, let alone
that Plaintiffs’ funds were used to purchase the real property at issue, or that Kuschner or Lopez
defrauded a separate mortgagor to obtain funds to purchase the real property. See Conseco
Servs., LLC v. Cuneo, 904 So. 2d 438, 440 (Fla. 3d DCA 2005) (affirming dissolution of lis
pendens claim for fraudulent transfer because plaintiff “does not claim that it provided any funds
to [defendants], that [defendants] acted fraudulently in obtaining the loans, or that [plaintiffs’]
funds were used to purchase the Florida homestead property.”).
Third, the allegations about “actual intent” do nothing but recite the specific components
of that element. They do not explain why Kuschner or Lopez were insiders, how the “transfer
was concealed,” why “the value of the consideration received by Kuschner was not reasonably
equivalent to the value of the asset transferred,” or how the “transfer occurred shortly after a
substantial debt was incurred.” See Compl. ¶¶ 154, 160. Again, Plaintiffs never had any
contractual relationship with Kuschner or Lopez and cannot allege facts that show an “actual
intent to hinder, delay, or defraud Plaintiffs.” Id. ¶¶ 153, 159. Further, FUFTA “was adopted to
prevent an insolvent debtor from transferring assets away from creditors when the debtor’s intent
is to hinder, delay, or defraud any of its creditors.” Oginsky v. Paragon Props. of Costa Rica
LLC, 784 F.Supp.2d 1353, 1369 (S.D. Fla. 2011) (emphasis added). But that is not what
happened here as Plaintiffs have not even alleged that Kuschner or Lopez were insolvent.
For all these reasons, the Court should dismiss Counts VIII and IX.
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AMERICAS 124766964
CONCLUSION
For the reasons explained above, the Court should dismiss the Complaint in its entirety as
to Julian Kuschner and Jonathan Lopez.
Date: August 18, 2023 Respectfully submitted,
By: s/ Jaime A. Bianchi
Jaime A. Bianchi
WHITE & CASE LLP
200 S. Biscayne Blvd., Suite 4900
Miami, Florida 33131-2352
Telephone: (305) 995-5259
Facsimile: (305) 358-5744
Jaime A. Bianchi
Florida Bar No. 908533
jbianchi@whitecase.com
Zachary B. Dickens
Florida Bar No. 98935
zdickens@whitecase.com
Counsel for Defendants
Julian Kuschner and Jonathan Lopez
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AMERICAS 124766964
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this document was filed with the
Court and served on the following parties via Florida’s e-filing portal on August 18, 2023:
SANCHEZ FISCHER LEVINE, LLP NELSON MULLINS RILEY &
1200 Brickell Avenue, Suite 750 SCARBOROUGH, LLP
Miami, Florida 33131 2 S. Biscayne Blvd., 21st Floor
(305) 925-9947 Miami, Florida 33131
David M. Levine (305) 373-9436
Fausto Sanchez Justin Kaplan
Lauren Marie Allen Ryan Todd
Robert Kemper Elaine Kussurelis
dlevine@sfl-law.com Ryan.Todd@nelsonmullins.com
fsanchez@sfl-law.com Justin.Kaplan@nelsonmullins.com
lallen@sfl-law.com Elaine.Kussurelis@nelsonmullins.com
rkemper@sfl-law.com
Counsel for Defendants Renan Da Rocha
Counsel for Plaintiffs Gomes Bastos and BBRC Real Estate, LLC
By: /s/ Zachary B. Dickens
Zachary B. Dickens
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AMERICAS 124766964
Preview
Filing # 179993273 E-Filed 08/18/2023 01:26:11 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CODY KERNS, KERNS CAPITAL CIRCUIT CIVIL – CBL DIVISION 44 MANAGEMENT, INC., and WFTMB Holdings, LLC Case No. 2023-020202-CA-01 Plaintiffs, v. FXWINNING, LTD., JONATHAN LOPEZ, JULIAN KUSCHNER, DAVID MERINO, RENAN DA ROCHA GOMES BASTOS, RAFAEL BRITO CUTIE, and BBRC REAL ESTATE, LLC Defendants. ___________________________________/ DEFENDANTS JULIAN KUSCHNER’S AND JONATHAN LOPEZ’S MOTION TO DISMISS THE COMPLAINT Defendants Julian Kuschner and Jonathan Lopez move for entry of an order dismissing the Complaint (D.E. 2) filed by Plaintiffs Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, in its entirety as to Kuschner and Lopez. INTRODUCTION This case – at least as it pertains to Defendants Julian Kuschner and Jonathan Lopez – is about a hedge fund trying to save face after it purportedly lost millions of its clients’ money when an overseas foreign exchange currency trading (“forex”) platform called FxWinning went belly-up. Looking for a way to explain the losses to their investors, Plaintiffs Cody Kerns and Christopher McGinnis (through Plaintiff WFTMB) attempt to deflect attention elsewhere by fashioning unsubstantiated claims that Kuschner and Lopez, their co-investors in the failed platform, were engaged a fraudulent conspiracy “that evokes thoughts of FTX and Bernie Madoff.” Compl. ¶ 1. But the Complaint shows why hyperbole is no substitute for proper 1 AMERICAS 124766964 pleading. The Counts against Kuschner and Lopez – for fraud, conspiracy, negligent misrepresentation, FDUTPA violations, unjust enrichment, and fraudulent transfers – are wildly deficient and make clear that Plaintiffs used charged terms like fraud and conspiracy for headlines but lack the facts to support them. As shown below, the Complaint is filled with conclusory allegations about how Defendants committed fraud and engaged in a conspiracy and lacks basic facts and particularity about the foundational elements of the fraud – such as what statements Kuschner and Lopez made that were false or how they knew those unidentified statements were false. There are also no allegations about how Defendants worked together, much less about how the conspiracy was formed, how Kuschner and Lopez agreed to participate in it, what they agreed to do, or what overt acts they took in furtherance of the conspiracy. Plaintiffs also allege – in a thinly veiled attempt to mask pleading deficiencies – that Kuschner and Lopez were a part of the “fraud” and “conspiracy” because they were “agents” or “partners” of the FxWinning owners and employees. Yet beyond incanting the word “agents,” the Complaint alleges no support for how Kuschner and Lopez were agents or partners, what role they played in FxWinning’s operations, or how they shared in FxWinning’s profits. Other places in the Complaint allege the opposite, that Kuschner and Lopez were investors, not FxWinning owners or employees, who have suffered commensurate losses on their respective investments. Plaintiffs also violated basic pleading requirements by improperly commingling all Defendants together in virtually every Count. These deficiencies, individually and collectively, contaminate the entire Complaint. Plaintiffs also try to take Kuschner’s and Lopez’s homes through fraudulent transfer claims, even though the parties have no contractual relationship, there are no insolvency allegations, and Kuschner and Lopez allegedly bought their homes months before FxWinning 2 AMERICAS 124766964 failed and Plaintiffs filed their current lawsuit. There are other independent grounds for dismissal for the other Counts. Thus, while Kuschner and Lopez cannot control what Plaintiffs say – no matter how false – they show below why the Court should dismiss Plaintiffs’ imaginative attempts to shift blame on them. FACTUAL BACKGROUND We summarize below the key factual allegations that relate to Kuschner and Lopez, which, even if viewed with all permissible inferences favoring Plaintiffs, do not meet the required pleading standards to sustain causes of action against Kuschner and Lopez. 1. ALLEGATIONS RELATING TO THE PARTIES, AGENCY, AND PARTNERSHIP We start with the critical distinction between the different Defendants. FxWinning was, upon information and belief, at all material times founded and owned by Defendant Merino. Compl. ¶ 15. Defendant Brito served as FxWinning’s CEO and a co-owner with Merino. Id. ¶ 17. FxWinning, Merino, and Brito are all foreign defendants. Id. ¶¶ 12, 15, 17. Defendant da Rocha is also alleged to be the “de facto principal operations manager for FXWinning in the United States.” Id. ¶ 16. We describe these Defendants as the “FxWinning Defendants” because they are the only Defendants identified as owners, operators, or employees of FxWinning. The Complaint meagerly gestures at painting Lopez and Kushner as “agents” of or “partners” with the FxWinning Defendants. Id. ¶ 28-29, 42, 54-55. But the conclusory allegations about agency and partnership contain no facts explaining how Lopez and Kushner were actually agents, what authority they were given as agents, or how they were partners of the FxWinning Defendants. Rather, Plaintiffs simply make statements like, “Kuschner, Lopez, Merino, da Rocha, and Brito were at all material times hereto acting as one another’s agents” and “acting as agents of FXWinning.” Id. ¶ 28-29; see, e.g., id. ¶¶ 40, 79. Plaintiffs also do not 3 AMERICAS 124766964 allege that Lopez and Kushner owned FxWinning or to have shared in the Platform’s profits with its owners. See, e.g., id. ¶ 74 (explaining how Brito, as a co-owner, “received a portion of the profits”). Nor are Lopez and Kushner identified as employees or individuals with some operational control of FxWinning’s business. Not only are no facts presented to support the “agency” claim, but paradoxically, the Complaint repeatedly alleges that, like Plaintiffs, Lopez and Kushner were investors in FxWinning with tens of millions invested and allege numerous facts to support that allegation. Id. ¶¶ 42, 57-58. Moreover, despite the clear distinction between the FxWinning Defendants and Lopez and Kushner, Plaintiffs repeatedly and improperly commingle all Defendants together wherever possible, including in the specific Counts. See, e.g., ¶¶ 1, 2, 4, 6, 93, 95-98, 105-133, 138-143. 2. ALLEGATIONS RELATING TO KUSCHNER AND LOPEZ The Complaint alleges that in December 2021 or January 2022, Kuschner or Lopez, approached Kerns about a “new investment opportunity” with FxWinning. Compl. ¶¶ 40-41. Kuschner and Lopez then showed Kerns their own customer accounts, which showed they were “achieving rates of return of 8% to 15% each month.” Id. ¶ 42, 57. McGinnis, who allegedly assigned his potential claim to Plaintiff WFTMB, alleged that “Kuschner began soliciting him to begin trading in foreign currency through FXWinning” in June 2023, which is a date that contradicts other allegations. Id. ¶¶ 51-53. He claims that Lopez and Kuschner showed him their accounts, which contained $21 million and between $5-6 million, respectively, and other accounts with hundreds of millions in them. Id. ¶ 57. Kuschner and Lopez also purportedly told Plaintiffs that they had “fully vetted FXWinning” and it was a safe platform that was sufficiently liquid. Id. ¶¶ 43-44, 53-55. Kuschner and Lopez also allegedly told Kerns that “if anything were to ever go wrong with his investment, [they] would facilitate a safe and easy exit process 4 AMERICAS 124766964 whereby Kerns could withdraw his funds from FXWinning.” Id. ¶ 46. These allegations show that Lopez and Kuschner told Kerns and McGinnis about their personal experience investing with FxWinning, which they felt was a safe enough place for them to invest over $25 million. At no point do Plaintiffs allege that any of these statements were false, or that Kuschner’s and Lopez’s customer accounts or other information they shared were fake, inaccurate, or misleading. There are also no specific allegations showing how Kuschner and Lopez knew or should have known that any of the representations they made were false. Lopez and Kuschner were not Kerns’ and McGinnis’ only source of information about FxWinning. Kerns and McGinnis reviewed FxWinning’s website before investing and alleged that FxWinning “claimed to be a legitimate online foreign exchange brokerage.” See id. ¶¶ 31, 47. The Complaint points to several representations on the website about why investors should invest with FxWinning. See, e.g., id. ¶ 31-39. It, among other things, “guarantee[d]” the “best spreads and trading conditions” for forex trading and represented that it was a “a safe and competent broker.” Id. ¶ 33. FxWinning’s terms also offered quick withdrawals and touted its liquidity provider partnerships with reputable companies like UBS, Citi, Barclays, and Morgan Stanley. Id. ¶ 35. There are no allegations that Kuschner or Lopez had anything to do with FxWinning’s website or knew that FxWinning’s communications were false. The Complaint also shows how Plaintiffs eagerly invested and reinvested in FxWinning. After McGinnis deposited $495,000 on FxWinning, Kuschner and Lopez allegedly told him that if he “wanted Merino to take him seriously” he would need to have his account “over $1 million as soon as possible.” Id. ¶¶ 60-61. That apparently was all the prompting McGinnis needed to more than double his investment. Id. ¶ 62. In September 2022, Plaintiffs asked Kuschner how much money was needed to receive a VIP “MAM account” and to “earn higher returns from 5 AMERICAS 124766964 FxWinning.” Id. ¶ 64. Kuschner told them he believed it was $3.5 million. Id. Kerns unprompted, volunteered “I gotta get another 800 in asap.” Id. Lopez confirmed the $3.5 million deposit requirement and “told Kerns that there was a ‘huge line’ of investors waiting to join the VIP group.” Id. ¶ 65. Kerns – apparently eager to join the VIP group – invested more. Id. ¶ 66. McGinnis, whose account had jumped up to over $3.5 million, purportedly “avoided making withdrawals” to keep his balance above the VIP group threshold. Id. ¶ 67. Again, the Complaint does not follow these statements with a specific allegation showing how Kuschner and Lopez knew or should have known that any of their representations were false. In early 2023, FxWinning advised its customers that it “was undergoing a Know Your Customer/Anti-Money Laundering” audit and that all accounts would be frozen during the audit. Id. ¶¶ 76, 83. After that, Kuschner and Lopez told Kerns that they met with Merino and Brito about the audit, “saw $3 billion in FXWinning liquidity with their own eyes,” and that Kerns’ money was “safe, and that all money would be released and paid.” Id. ¶¶ 79-80. Again, nowhere do Plaintiffs allege how Kuschner or Lopez knew or should have known these statements by their fellow investors about their already frozen money were false. Then in June, “after Plaintiffs had been notified that FXWinning had passed its compliance requirements, FXWinning just shut down completely.” Id. ¶¶ 5, 91. Plaintiffs claim they have about $6 million in the Kerns Account, $12.7 million in the Kerns Capital Account, and $9.7 million in the McGinnis Account that “Defendants” did not return. Id. ¶¶ 95-97. 3. THE CAUSES OF ACTION AGAINST KUSCHNER AND LOPEZ After describing the problems that many FxWinning’s investors – including Plaintiffs, Kuschner, and Lopez – encountered when FxWinning shut down, Plaintiffs sued seven defendants in a nine-count Complaint. Six Counts are alleged against Kuschner and Lopez for 6 AMERICAS 124766964 fraud (Count I); FDUTPA violation (Count II); conspiracy to defraud (Count III); negligent misrepresentation (Count IV); unjust enrichment (Count VI); and fraudulent transfer (Count VIII and IX). See id. ¶¶ 105-11, 112-21, 122-27, 128-33, 138-43, 150-55, 156-61. ARGUMENT The Court should dismiss the Complaint as to Kuschner and Lopez in its entirety for several reasons: (I) pleading failures that span across multiple Counts; and (II) pleading failures specific to the individual Counts. For the former, the Complaint accuses Kuschner and Lopez – who they readily acknowledge were, like Plaintiffs, investors in FxWinning with tens of millions deposited – of committing fraud, engaging in a conspiracy, and of being “agents” of or “partners” with the FxWinning Defendants. These types of claims require specific allegations of fact that are completely absent from the Complaint. Also, Plaintiffs, presumably to bolster their claims against each Defendant, improperly commingle allegations, making it impossible for the Court or Kuschner and Lopez to understand what specific allegations are asserted against them, and call into question whether such assertions are factually supported at all. For the latter, we show why each Count against Kuschner and Lopez is fatally defective. I. PLEADING FAILURES ACROSS MULTIPLE COUNTS We first address below the three pleading failures that apply across multiple Counts. 1. PLAINTIFFS FAIL TO PLEAD ANY OF THE FRAUD, CONSPIRACY, OR MISREPRESENTATION COUNTS WITH THE REQUISITE PARTICULARITY The Court should dismiss Counts I (fraud), II (FDUTPA), III (conspiracy to commit fraud), and IV (negligent misrepresentation) because they all do not even try to meet Florida Rule of Civil Procedure 1.120(b)’s heightened pleading requirements. See Simon, 883 So. 2d at 833 (applying the heightened pleading standard to fraud claims); State Farm. Mut. Auto. Ins. Co. v. Performance Orthopaedics & Neurosurgery, LLC, 278 F.Supp.3d 1307, 1328 (S.D. Fla. 2017) 7 AMERICAS 124766964 (applying the heightened pleading standard for fraud-based FDUTPA claim); Ocala Loan Co. v. Smith, 155 So. 2d 711, 716 (Fla. 3d DCA 1963) (“[t]he requirements governing fraud apply to averments charging conspiracy”); Eagletech Commc’ns., Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 863 (Fla. 4th DCA 2012) (granting motion to dismiss a conspiracy Count because the plaintiff did not “set forth clear, positive, and specific allegations of civil conspiracy”) (citation omitted); Morgan v. W.R. Grace & Co., 779 So. 2d 503, 506 (Fla. 2d DCA 2000) (applying the heightened pleading standard for negligent misrepresentation claims). As shown below, none of the four fraud-based Counts assert any particularized allegations or identify specific misrepresentations or omissions of fact. Instead, they are filled with conclusory allegations, legal conclusions, and incorporate all 104 paragraphs of general allegations and invite the reader to guess which allegations “outlined above” support Plaintiffs’ fraud-based claims. See Compl. ¶¶ 105-06, 112, 115-16, 122-23, 128-29. Count I for fraud is deficient because it simply states that Defendants “made false statements” and that the Defendants “knew that the statements were false when they made them to Plaintiffs.” Compl. ¶¶ 106-07. Nothing about those allegations is particularized or identifies with required specificity the key elements of fraud, such as what false statements were made and how the Defendants knew the statements were false. Count II, asserting FDUTPA violations, is insufficient because it only alleges that Plaintiffs are “consumers” and that Defendants committed “deceptive acts” and “unfair and unconscionable acts” in “the conduct of their trade or commerce” without any accompanying detail. Id. ¶¶ 113-15. It adds that Defendants’ “misrepresentations are deceptive and offend established public policy and are immoral, unethical, oppressive, unscrupulous, and substantially injurious to Plaintiffs.” Id. ¶ 117. But again, there are no particularized allegations to support those legal conclusions, either. 8 AMERICAS 124766964 Count III for conspiracy is similarly deficient. It alleges that Defendants “did agree to commit an unlawful act” and “did all do some overt act in pursuant [sic] of the conspiracy” with no detail about how there was an agreement, what the agreement contained, or what overt acts Defendants took in furtherance of the conspiracy. Id. ¶ 123-25 (emphasis added). Count IV for negligent misrepresentation is deficient because it simply alleges that Defendants “made misrepresentations of material fact that they believed to be true but were in fact false” without specifying what misrepresentations were made or why they were false. Id. ¶ 129; see id. ¶ 131. Allegations of fraud and conspiracy are not to be taken lightly and require heightened pleading to survive a motion to dismiss. If Plaintiffs want to plead those Counts, they must plead them correctly and put Kuschner and Lopez on notice of the particulars alleged against them. See Eagletech Commc’ns., Inc., 79 So. 3d at 862 (affirming dismissal of a fraud count because it lumped defendants together “and failed to identify which defendant made which statement”); Simon, 883 So. 2d at 833; Reina v. Gingerale Corp., 472 So. 2d 530, 531-32 (Fla. 3d DCA 1985) (“Fraud is never presumed and where it is the basis of a pleading, the essential facts, and not legal conclusions, which constitute fraud must be set out clearly, concisely and with sufficient particularity to apprise the opposite party of what he is called upon to answer.”); Transatlantic, LLC v. Humana, Inc., 666 F. App’x 788, 789 (11th Cir. 2016) (“[W]hen the alleged fraud involves multiple defendants, Rule 9(b)1 requires that the plaintiff plead sufficient facts to ‘inform each defendant of the nature of [its] alleged participation in the fraud.’”). Meridian Tr. Co. v. Batista, 2018 U.S. Dist. LEXIS 166556, at *26 (S.D. Fla. Sep. 24, 2018) (dismissing conspiracy claims that failed to “satisfy the heightened pleading standard” which required plaintiffs “at least show some evidence of agreement between the defendants”); Corbett v. 1 Federal Rule of Civil Procedure 9(b) is the “federal counterpart” to Rule 1.120. See Perkins v. Nat’l LGBTQ T.F., Inc., 580 F. Supp. 3d 1236, 1240 (S.D. Fla. 2021). 9 AMERICAS 124766964 Transp. Sec. Admin., 968 F. Supp. 2d 1171, 1191 (S.D. Fla. 2012) (dismissing conspiracy claims where the allegations were “too nonspecific and insufficient to sustain any inference” of an illicit agreement). Counts I, II, III, and IV must be dismissed. 2. THE COMPLAINT VIOLATES BASIC PLEADING REQUIREMENTS BECAUSE IT IMPROPERLY COMMINGLES ALLEGATIONS AGAINST SEPARATE DEFENDANTS Commingling distinct causes of action against multiple defendants violates Florida Rule of Civil Procedure 1.110(f). Collado v. Baroukh, 226 So. 3d 924, 928 (Fla. 4th DCA 2017); see also Fla. R. Civ. P. 1.110(f). A plaintiff “should plead each distinct claim in a separate count, rather than plead the various claims against all defendants together.” K.R. Exch. Servs. v. Fuerst, Humphrey, Ittleman, PL, 48 So. 3d 889, 893 (Fla. 3d DCA 2010). Otherwise, the pleading violates basic pleading rules. See id. Plaintiffs fall far short of those obligations here. In five separate Counts (Count I, II, III, IV, and VI) Plaintiffs make conclusory allegations against all defendants without specifying how each is individual defendant is responsible for them. As mentioned above, those Counts “re-allege[s] and incorporate through reference” all the general allegations, some of which have nothing to do with Kuschner or Lopez. Compl. ¶¶ 105, 112, 122, 128, 138, 150, 156. Then, each Count combines its conclusory and improperly commingled allegations among multiple FxWinning Defendants, Kuschner, and Lopez for the material elements of the claims. See ¶¶ 105-06, 115, 117, 123, 126-27, 130, 140. The commingled nature of all these key allegations makes it impossible for Kuschner and Lopez to identify what facts are specifically alleged against them. See K.R. Exch. Servs., 48 So. 3d at 891, 893 (affirming the dismissal of a complaint that commingled “forty-seven numbered paragraphs containing factual allegations and legal conclusions concerning the malpractice claims against [the attorneys], as well as the claims against [non-attorneys]”); Collado, 226 So. 3d at 928 (finding Rule 1.110(f) violated “[b]y commingling separate and distinct claims against 10 AMERICAS 124766964 multiple defendants” and dismissing the complaint under Rule 1.420(b)). Further, the commingling problem is amplified by the fact that four Counts (Count I, II, III, and IV) are fraud-based claims. See Simon v. Celebration Co., 883 So. 2d 826, 833 (Fla. 5th DCA 2004) (“The lack of specificity is particularly troublesome here where nine separate defendants are lumped together in each Count in a complaint that often fails to particularize which of the nine defendants made which statements.”). Commingling the allegations against all Defendants is the antithesis of particularized allegations of wrongdoing required for those Counts. Thus, Counts I, II, III, IV and VI should be dismissed as to Kuschner and Lopez. 3. THE COMPLAINT FAILS TO SUFFICIENTLY ALLEGE THAT KUSCHNER AND LOPEZ WERE PARTNERS OR AGENTS OF THE FXWINNING DEFENDANTS Commingled Counts (Count I, II, III, IV, and VI) also fail because they suggest, either directly or indirectly through their incorporation of the general allegations, that Kuschner and Lopez should be held responsible for their roles as the FxWinning Defendants’ “agents” or “partners,” even though the Complaint fails to offer facts supporting the existence of those relationships. See, e.g., Compl. ¶¶ 2, 28-29, 40, 42, 54-55, 79, 106, 129. If a plaintiff seeks to hold defendants liable premised on a partnership or agency relationship, the complaint has to adequately allege that relationship. See McFee v. Carnival Corp., 2020 U.S. Dist. LEXIS 263944, at *16-17 (S.D. Fla. Apr. 22, 2020). To show agency, a party must allege that: (1) the principal acknowledged that the agent will act for it; (2) the agent manifested an acceptance of that undertaking; and (3) there was control by the principal over the actions of the agent. Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1234-36 (11th Cir. 2014). A partnership requires “the association of two or more persons to carry on as co-owners of a business for profit.” Fla. Stat. § 620.8202(1). The conclusory allegations throughout the complaint about agency and partnership 11 AMERICAS 124766964 contain no facts explaining how Lopez and Kushner were agents, what authority they were given as agents, or how they were partners of the FxWinning Defendants. Rather, Plaintiffs simply make statements like, “Kuschner, Lopez, Merino, da Rocha, and Brito were at all material times hereto acting as one another’s agents” and “acting as agents of FXWinning.” Id. ¶ 28-29; see, e.g., id. ¶¶ 40, 79. Similarly, the Complaint alleges that Kuschner and Lopez repeatedly referred to Merino and Brito as their “partners,” but fails to support that relationship with factual allegations. Compl. ¶¶ 42, 54-55. Plaintiffs do not allege that Lopez and Kushner owned FxWinning or to have shared in the Platform’s profits with its owners. See, e.g., id. ¶ 74. Nor are Lopez and Kushner identified as employees or individuals with some operational control of FxWinning’s business. Rather, the Complaint repeatedly explains that, like Plaintiffs, Lopez and Kushner were investors in FxWinning with tens of millions invested. Id. ¶¶ 42, 57-58. As a result, the Court should dismiss the Counts based on an insufficiently pled agency or partnership relationship. See McFee, 2020 U.S. Dist. LEXIS 263944, at *18 (dismissing claims premised on agency relationship between a cruise company and a travel agency because the plaintiffs did not allege the cruise company acknowledged the travel agency would act on its behalf, the travel agency manifested an acceptance, and the essential element of control). II. PLEADING FAILURES IN THE SPECIFIC COUNTS Next, we turn to more specific deficiencies in each Count outside the commingling, fraud-based pleading, and agency and partnership pleading problems identified above. 1. THE COMPLAINT FAILS TO STATE A CLAIM FOR FRAUD (COUNT I) AND FOR NEGLIGENT MISREPRESENTATION (COUNT IV) BECAUSE IT DOES NOT SPECIFY A SINGLE FALSE STATEMENT OF MATERIAL FACT We start with the Complaint’s deficiencies relating to the knowledge element of the fraud and negligent misrepresentation claims. A claim of fraud must include: (1) a false statement of 12 AMERICAS 124766964 material fact; (2) by a person who knows or believes it to be false; (3) that the person intended that the representations would induce another to rely and act on it; and (4) resulting injury. See Black Diamond Props. v. Haines, 69 So. 3d 1090, 1094-95 (Fla. 5th DCA 2011). Similarly, negligent misrepresentation requires: (1) a misrepresentation of a material fact; (2) that the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the representer intended to induce another to act on the misrepresentation; and (4) injury. Hirsh v. Silversea Cruises Ltd., 2015 U.S. Dist. LEXIS 191529, at *11-12 (S.D. Fla. Mar. 5, 2015). If the Court moves past the commingled and generalized allegations of fraud, it should still dismiss the fraud Count because it does not identify which statements by Kuschner or Lopez were false, why those unidentified statements were false, or how Kuschner or Lopez knew they were false when they made them. Rather, the allegations suggest that Kuschner and Lopez, who had millions of their own funds invested in FxWinning believed that the platform was a safe place to invest based on the information provided to them. The commingled and generalized allegations about how all the Defendants should have known that FxWinning was a fraudulent scheme are insufficient. See Compl. ¶¶ 1, 98, 107, 130; Simon, 883 So. 2d at 833 (a false representation of fact “can only be satisfied when the pleading identifies specific facts and states how they were false. . . [N]owhere within the complaint do the Simons state how these representations were false. The complaint simply alleges the conclusory statement that the representations were false, a legally insufficient allegation under the strict pleading requirements for a claim predicated on fraud.”). Thus, without specific allegations showing Kuschner and Lopez knowingly made false statements of fact, Plaintiffs’ fraud claim must be dismissed. The negligent misrepresentation claim fails for the same reasons. The Complaint, other 13 AMERICAS 124766964 than the insufficient generalized allegations mentioned above, does not assert any particularized allegations about which false statements Kuschner or Lopez made, which statements they made without knowledge of their truth or falsity, or why they should have known that any statement was false. Counts I and IV must be dismissed as to Kuschner and Lopez. 2. THE COMPLAINT FAILS TO STATE A VIOLATION OF FDUTPA (COUNT II) BECAUSE IT FAILS TO ALLEGE THAT KUSCHNER AND LOPEZ HAD CONTROL OVER CORPORATE DECEPTIVE PRACTICES AND SPECIFIES NO PRACTICES THAT WERE MISLEADING The Court should also dismiss the FDUTPA Count because Plaintiffs have failed to plead the requisite elements for that claim. To state a FDUTPA claim, a plaintiff must allege: (1) a deceptive act or unfair trade practice; (2) causation; and (3) actual damages. See Dolphin LLC v. WCI Cmtys., Inc., 715 F.3d 1243, 1250 (11th Cir. 2013). To proceed against an individual for a FDUTPA violation, a plaintiff must allege the individual was a “direct participant” in dealings that violated the statute. Aboujaoude v. Poinciana Dev. Co. II, 509 F. Supp. 2d 1266, 1277 (S.D. Fla. 2007). Further, “it is necessary to show that an individual defendant actively participated in or had some measure of control over the corporation’s deceptive practices.” KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 1073 (5th DCA 2008) (emphasis added). A plaintiff cannot simply make general allegations without detail about what the defendant did and how those actions violate FDUTPA. See Aboujaoude, 509 F. Supp. 2d 1266, 1277 (dismissing FDUTPA claim where plaintiffs “made general allegations against [individual defendant], but they do not specify his individual actions and how they constitute a violation of FDUTPA”). As explained above, Plaintiffs have not alleged that Kuschner or Lopez participated in or had some measure of control over FxWinning. Plaintiffs at no point allege that Kuschner and Lopez had any official role at FxWinning, much less ownership or control. Rather, the Complaint makes clear that only the FxWinning Defendants had formal roles at FxWinning. 14 AMERICAS 124766964 None of these claims impute sufficient corporate control to Kuschner or Lopez, let alone individual liability for any theoretical FDUTPA violation by FxWinning. Even if the Complaint properly connected them to FxWinning’s corporate practices, it does not sufficiently identify any specific deceptive acts, since it does not allege a single statement they made that was fraudulent or misleading. Plaintiffs also fail to identify which practices – advertising, soliciting, providing, offering, or distributing – were deceptive or unfair. Count II must be dismissed. 3. COUNT III FOR CONSPIRACY TO COMMIT FRAUD FAILS TO SUFFICIENTLY ALLEGE THAT THERE WAS KNOWLEDGE, AGREEMENT, AND OVERT ACTS BETWEEN KUSCHNER, LOPEZ, AND OTHER DEFENDANTS The Court should also dismiss Count III for conspiracy. See Eagletech Commc’ns., Inc., 79 So. 3d at 863. A claim of conspiracy must allege: (1) an agreement between two or more parties; (2) to do an unlawful act or lawful act by unlawful means; (3) the doing of an overt act in pursuance of the conspiracy; and (4) resulting damages. See Gilison v. Flagler Bank, 303 So. 3d 999, 1004 (Fla. 4th DCA 2020). Count III fails to set forth any clear, positive, and specific allegations of the key elements of conspiracy of an agreement and overt acts. In Count III, Plaintiffs make conclusory allegations that Kuschner, Lopez, and the FxWinning Defendants “did come to an agreement to commit fraud” and “did agree to commit an unlawful act — that is, commit fraud, — against Plaintiffs.” Compl. ¶¶ 123-24. It cannot get much more vague than this. The Complaint offers no facts to support the claim that there was a knowing agreement between the Defendants. In fact, it does not even allege how the Defendants worked together or how Kuschner or Lopez worked for the FxWinning Defendants. These conclusory allegations – devoid of detail and circularly premised on the assumption that these conclusions are true because Plaintiffs say so and nothing more – do not show knowledge or agreement. See Angell v. Allergan Sales, LLC, 2019 U.S. Dist. LEXIS 142768, at *55-56 (M.D. 15 AMERICAS 124766964 Fla. Aug. 22, 2019) (finding a failure to allege an agreement when the plaintiffs “to allege facts sufficient to raise a plausible inference that [the defendant] knew of the [] scheme to defraud”); Honig v. Kornfeld, 339 F.Supp.3d 1323, 1346-47 (S.D. Fla. 2018) (the complaint failed to “plead the existence of a separate civil conspiracy whereby the [] Defendants knowingly entered into an agreement with [] insiders to recommend and sell unregistered [] securities”); Wardak v. Goolden, 2020 U.S. Dist. LEXIS 91816 (S.D. Fla. May 22, 2020), at *23 (“There must be evidence to show that the parties reached an understanding to commit the actionable wrongs supporting the conspiracy. . . . [I]t is possible that [the defendants’] interests were aligned, however, that alone is insufficient to allege a conspiracy.”). The same problem is true for the alleged overt acts. The Complaint alleges Kuschner, Lopez, and the FxWinning Defendants “did all do some overt act in pursuant [sic] of the conspiracy,” id. ¶ 125, without providing any clear, positive, and specific allegations about how this conspiracy showed itself. The Court should dismiss Count III. 4. COUNT VI FOR UNJUST ENRICHMENT FAILS BECAUSE THERE IS NO DIRECT BENEFIT The Court should also dismiss Count VI for unjust enrichment because the Complaint confirms that Plaintiffs did not confer a direct benefit on Kuschner or Lopez. Florida law requires a plaintiff to directly confer a benefit to the defendant to maintain an unjust enrichment claim. Kopel v. Kopel, 229 So. 3d 812, 818 (Fla. 2017). Plaintiffs allege they deposited funds with FxWinning to profit from FxWinning’s trading algorithms. See Compl. ¶¶ 42-50. Nowhere do they claim that they transferred funds directly to Kuschner or Lopez. See id.; Compl. ¶¶ 59- 62. At best, Plaintiffs claim that Kuschner and Lopez benefitted indirectly from Plaintiffs’ business at FxWinning through commissions. See Compl. ¶¶ 69-75. Because any direct connection was with FxWinning, not Kuschner and Lopez, Count VI must be dismissed. See 16 AMERICAS 124766964 CFLP P’ship, LLC. V. Diamond Blue Int’l, Inc., 352 So. 3d 357, 359 (Fla. 3d DCA 2022) (reversing summary judgment on an unjust enrichment claim because plaintiff never contracted with the defendant, paid another party, and the defendants provided no services to the plaintiff). 5. THE COMPLAINT FAILS TO STATE A CLAIM FOR FRAUDULENT TRANSFER (COUNTS VIII AND IX) FOR SEVERAL REASONS Plaintiffs in Counts VIII and IX ask this Court to conclude that Kuschner and Lopez engaged in fraudulent transfers when they bought their homes with “ill-gotten gains from the FXWinning scheme.” Compl. ¶¶ 150-61. These Counts are frivolous for at least three reasons. First, only creditors can bring a claim for fraudulent transfer. The Florida Uniform Fraudulent Transfer Act (“FUFTA”) provides that a “creditor” is a “person who has a claim,” and a claim is defined as a “right to payment.” §§ 726.102(3), (4), Fla. Stat. If a party is claiming to be a creditor, they “must plead factual allegations establishing the creditor/debtor relationship.” Court-Appointed Receiver for Lancer Mgmt. Grp., LLC v. Redwood Fin. Grp., Inc., 2010 U.S. Dist. LEXIS 72544 at *7 (S.D. Fla. Jul. 16, 2010). But Plaintiffs are not creditors and have nothing remotely close to resembling a claim against Kuschner or Lopez. Counts VIII and IX allege that “given that” Kuschner and Lopez “owed and owes Plaintiffs for the scheme perpetrated against Plaintiffs, Plaintiffs possessed a ‘claim’” and are “creditors.” Compl. ¶¶ 152, 158. Thus, Plaintiffs allege they meet the definition for a “claim” against Kuschner and Lopez – despite no contractual relationship – because Plaintiffs feel that Kuschner and Lopez “owe[]” them. Certainly, the legislature did not intend to define “claim” to include the absurd situation presented here a party decides that, months after an unrelated “transfer” was made, they feel the transferor “owed” them something. FUFTA is “not a catchall statute to permit an entity which has transferred its assets to others or had them stolen to recover those assets from whomever may be in possession of them as a substitute for a direct cause of action 17 AMERICAS 124766964 against that person or entity.” In re Wiand, 2008 U.S. Dist. LEXIS 108164, at *19 (M.D. Fla. Jan. 28, 2008). Second, Plaintiffs fail to allege that their specific funds were ever used for the purchases of the real property at issue. See Compl. ¶¶ 151, 157. Neither claim of fraudulent transfer against Kuschner or Lopez states that they received any funds directly from Plaintiffs, let alone that Plaintiffs’ funds were used to purchase the real property at issue, or that Kuschner or Lopez defrauded a separate mortgagor to obtain funds to purchase the real property. See Conseco Servs., LLC v. Cuneo, 904 So. 2d 438, 440 (Fla. 3d DCA 2005) (affirming dissolution of lis pendens claim for fraudulent transfer because plaintiff “does not claim that it provided any funds to [defendants], that [defendants] acted fraudulently in obtaining the loans, or that [plaintiffs’] funds were used to purchase the Florida homestead property.”). Third, the allegations about “actual intent” do nothing but recite the specific components of that element. They do not explain why Kuschner or Lopez were insiders, how the “transfer was concealed,” why “the value of the consideration received by Kuschner was not reasonably equivalent to the value of the asset transferred,” or how the “transfer occurred shortly after a substantial debt was incurred.” See Compl. ¶¶ 154, 160. Again, Plaintiffs never had any contractual relationship with Kuschner or Lopez and cannot allege facts that show an “actual intent to hinder, delay, or defraud Plaintiffs.” Id. ¶¶ 153, 159. Further, FUFTA “was adopted to prevent an insolvent debtor from transferring assets away from creditors when the debtor’s intent is to hinder, delay, or defraud any of its creditors.” Oginsky v. Paragon Props. of Costa Rica LLC, 784 F.Supp.2d 1353, 1369 (S.D. Fla. 2011) (emphasis added). But that is not what happened here as Plaintiffs have not even alleged that Kuschner or Lopez were insolvent. For all these reasons, the Court should dismiss Counts VIII and IX. 18 AMERICAS 124766964 CONCLUSION For the reasons explained above, the Court should dismiss the Complaint in its entirety as to Julian Kuschner and Jonathan Lopez. Date: August 18, 2023 Respectfully submitted, By: s/ Jaime A. Bianchi Jaime A. Bianchi WHITE & CASE LLP 200 S. Biscayne Blvd., Suite 4900 Miami, Florida 33131-2352 Telephone: (305) 995-5259 Facsimile: (305) 358-5744 Jaime A. Bianchi Florida Bar No. 908533 jbianchi@whitecase.com Zachary B. Dickens Florida Bar No. 98935 zdickens@whitecase.com Counsel for Defendants Julian Kuschner and Jonathan Lopez 19 AMERICAS 124766964 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this document was filed with the Court and served on the following parties via Florida’s e-filing portal on August 18, 2023: SANCHEZ FISCHER LEVINE, LLP NELSON MULLINS RILEY & 1200 Brickell Avenue, Suite 750 SCARBOROUGH, LLP Miami, Florida 33131 2 S. Biscayne Blvd., 21st Floor (305) 925-9947 Miami, Florida 33131 David M. Levine (305) 373-9436 Fausto Sanchez Justin Kaplan Lauren Marie Allen Ryan Todd Robert Kemper Elaine Kussurelis dlevine@sfl-law.com Ryan.Todd@nelsonmullins.com fsanchez@sfl-law.com Justin.Kaplan@nelsonmullins.com lallen@sfl-law.com Elaine.Kussurelis@nelsonmullins.com rkemper@sfl-law.com Counsel for Defendants Renan Da Rocha Counsel for Plaintiffs Gomes Bastos and BBRC Real Estate, LLC By: /s/ Zachary B. Dickens Zachary B. Dickens 20 AMERICAS 124766964