Motion for Order to Post in CODY KERNS ET AL VS FXWINNING, LTD. ET AL| Trellis.Law

On July 24, 2023 a Summons was filed involving a dispute between Kerns Capital Management, Inc., Kerns, Cody, Wftmb Holdings Llc, and Bbrc Real Estate, Llc, Brito Cutie, Rafael, Da Rocha Gomes Bastos, Renan, Fxwinning, Ltd., Kuschner, Julian, Lopez, Jonathan, Merino, David, for Business Torts in the District Court of Miami-Dade County.

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Filing # 178828963 E-Filed 08/03/2023 09:17:28 AM

IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO.: 2023-020202-CA-01

CODY KERNS, an individual, KERNS CAPITAL
MANAGEMENT, INC., a British Virgin Islands
Corporation, and WFTMB HOLDINGS, LLC,
a Florida Limited Liability Company,

Plaintiffs,

FXWINNING, LTD., a Hong Kong Limited Company,
JONATHAN LOPEZ, an individual,
JULIAN KUSCHNER, an individual,
DAVID MERINO, an individual,
RENAN DA ROCHA GOMES BASTOS, an individual,
RAFAEL BRITO CUTIE, an individual,
BBRC REAL ESTATE, LLC,
a Florida Limited Liability Company

Defendants.
/

PLAINTIFFS’ EX PARTE MOTION FOR AN ORDER
AUTHORIZING SERVICE OF PROCESS VIA EMAIL ON DEFENDANT
FXWINNING, LTD. PURSUANT TO SECTION 48.197, FLORIDA STATUTES

Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and

WFTMB Holdings, LLC (“WFTMB”) as assignee of Christopher McGinnis (“McGinnis”)

(collectively, “Plaintiffs”), by and through undersigned counsel and pursuant to Section 48.197,

Florida Statutes, hereby move this Court for an order authorizing Plaintiffs to serve the Summons,

Complaint, and Plaintiffs’ First Request for Production via email on Defendant, FXWinning, Ltd.

(“FXWinning”), and in support thereof state:
INTRODUCTION

FXWinning is a foreign entity intertwined in an elaborate scheme to defraud investors

using a foreign exchange trading platform. FXWinning was the vehicle that other Defendants used

to further their fraudulent scheme that resulted in Plaintiffs losing millions of dollars. In

furtherance of their fraud, FXWinning communicated regularly with Plaintiffs via email. The

email address FXWinning used is also plastered all over FXWinning’s website as a way to contact

the company.

The Florida Legislature recently enacted Section 48.197, Florida Statutes, which affords

Plaintiffs (and other similarly situated parties) with modern, reliable, avenues to effect service of

process in state courts through electronic means akin to those available to federal litigants. See,

e.g., § 48.197(a)-(c), FLA. STAT. (2023). In accordance with Section 48.197, the Complex

Business Litigation Division recently found service of process via email to be appropriate. See,

e.g., Maria Fabiola Organista Cardenas, et al. v. TCG Capital, LLC, et al., No. 22-022957-CA-

01 (11th Cir. Ct., June 15, 2023) (J. Rebull) (granting plaintiffs’ ex parte motion for service of

process on foreign defendant residing in Ecuador via email without a hearing). This follows other

courts that have long found that service of process via email satisfies due process and is reasonably

calculated to give a defendant notice of a pending action against it. Accordingly, this Court should

permit Plaintiffs to serve process on FXWinning through its known email address pursuant to

Section 48.197, Florida Statutes.

STATEMENT OF FACTS

1. FXWinning is a Hong Kong limited company. See Compl. at ¶ 12; see also

Certificate of Incorporation, a true and correct copy of which is attached as Exhibit A.

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2. FXWinning regularly communicated with Kerns through the following email

address: support@FXWinning.info. See Declaration of C. Kerns, attached as Exhibit B at ¶ 13.

3. None of the emails that Kerns sent to FXWinning at that email address have been

returned as undeliverable. See Ex. B at ¶ 14.

4. FXWinning’s website includes an option for customers to contact it via email. See

FXWinning, https://www.fxwinning.pro/ (last visited July 28, 2023), a true and correct copy of

which is attached as Exhibit C.

5. The email that FXWinning lists for such contact is support@FXWinning.info. Id.

MEMORANDUM OF LAW

Section 48.197, Florida Statutes, provides for alternative means of service of process,

including via email. Specifically, Section 48.102, Florida Statutes, provides that service on a party

residing in a foreign country may be effectuated by one of the following:

a) By any internationally agreed-upon means of service
reasonably calculated to give actual notice of the
proceedings, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters;
b) If there is no internationally agreed-upon means of service,
or if an international agreement allows but does not specify
other means, by a method reasonably calculated to give
actual notice of the proceedings; or
c) Pursuant to motion and order by the court, by other means,
including electronically by e-mail or other technology,
which the party seeking service shows is reasonably
calculated to give actual notice of the proceedings and is not
prohibited by international agreement, as the court orders.

§ 48.197(a)-(c), FLA. STAT. (2023) (emphasis added). The newly enacted Section 48.197, Florida

Statutes, mirrors its federal counterpart – Federal Rule of Civil Procedure 4. See FED. R. CIV. P.

4(f). When the Florida rule is identical to a federal rule, Florida courts may rely on federal

decisions as persuasive guidance to interpret the Florida rule. See Dinter v. Brewer, 420 So. 2d
3
932, 934 n.2 (Fla. 3d DCA 1982) (“Decisions and commentaries under the federal rules are

persuasive guidelines to the interpretation of state rules closely patterned thereon.”); accord

Gangelhoff v. Lokey Motors Co., Inc., 270 So. 2d 58, 59 (Fla. 2d DCA 1972) (acknowledging

Florida courts may rely “on case law enunciated in the Federal decisions” when deciding matters

involving identical state law).

The use of the word “or” between subsection b and subsection c in Section 48.197, Florida

Statutes allows parties to utilize either subsection in effecting service of process. See Rio Props.,

Inc. v. Rio Inter’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (“Rule 4(f)(3) is one of three

separately numbered subsections in Rule 4(f), and each subsection is separated from the one

previous merely by the simple conjunction ‘or.’ Rule 4(f)(3) … stands independently, on equal

footing.”); see also Seaboard Marine Ltd., Inc. v. Magnum Freight Corp., No. 17-21815, 2017

WL 7796153, at *1 (S.D. Fla. Sept. 21, 2017) (“Despite coming last in the list of available methods

of service in Rule 4(f), there is no indication from the plain language of the Rule that the three

subsections, separate by the disjunctive ‘or,’ are meant to be read as a hierarchy.”); Osio v. Moros,

No. 1:21-CV-20706, 2022 WL 17583631, at *1 (S.D. Fla. Sept. 26, 2022) (“‘If a party cannot, or

chooses not to, serve a defendant abroad using one of the methods specified in Rule 4(f)(1) and

(2), the party may accomplish service’ using the third method.”) (quoting De Gazelle Grp., Inc. v.

Tamaz Trading Establishment, 817 F.3d 747, 750 (11th Cir. 2016)). Notably, “the decision to issue

an order allowing service by alternate means lies solely within the discretion of the district court.”

Chanel, Inc. v. Zhixian, No. 10-CV-60585, 2010 WL 1740695, at *2 (S.D. Fla. Apr. 29, 2010);

accord Birmingham v. Doe, No. 21-CV-23472, 2022 WL 3656963, at *2 (S.D. Fla. Aug. 25, 2022)

(acknowledging district courts have broad authority to order alternate service methods under Rule

4
4(f)(3) so long as “the service method is not prohibited by international agreement and is

reasonably calculated to give notice to the defendants”).

Section 48.197(c)’s federal counterpart—Rule 4(f)(3)—merely “requires that service be

(1) directed by the court; and (2) not prohibited by international agreement.” Adidas AG v.

Individuals, P’ships & Unincorporated Assns., No. 19-cv-61264-UU, 2019 WL 7841807, at *1

(S.D. Fla. May 23, 2019). As long as alternative methods of service of process comport with due

process, a court can authorize alternative methods of service of process. Id.

This Court should exercise its discretion and permit Plaintiffs to serve FXWinning via

email pursuant to Section 48.197, Florida Statutes.

I. Service via Email is not Prohibited by an International Agreement.

Article 10 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters (the “Hague Service Convention”) permits service

through “postal channels” and “applies unless the destination country has objected to those specific

methods of service.” Codigo Music, LLC v. Televisa S.A. de C.V., No. 15-CIV-21737, 2017 WL

4346968, at *5 (S.D. Fla. Sept. 29, 2017); 20 U.S.T. 361, 658 U.N.T.S. 163 (“Provided the State

of destination does not object, the present Convention shall not interfere with … the freedom to

send judicial documents, by postal channels, directly to persons abroad.”).

Hong Kong is a signatory to the Hague Service Convention and has not objected to Article

10(a) of the Hague Service Convention. See TracFone Wireless, Inc. v. Unlimited PCS Inc., 279

F.R.D. 626, 628 (S.D. Fla. 2012) (confirming that Hong Kong is a signatory to the Hague Service

Convention); TracFone Wireless, Inc. v. Pak China Grp. Co. Ltd., 843 F.Supp.2d 1284, 1292-93

(S.D. Fla. 2012) (finding that Hong Kong has not objected to service through postal channels

pursuant to Article 10).

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Even though Hong Kong is a signatory to the Hague Service Convention, “there is no

express requirement that the Plaintiffs demonstrate that service” through the Hague Service

Convention is “not possible before the court may authorize” service under alternative means.

Codigo Music, LLC, 2017 WL 4346968, at *7. Indeed, federal courts have routinely permitted

service of process via email on defendants located in Hong Kong. See Emqore Envesecure Priv.

Cap. Tr. v. Singh, No. CV 20-7324 (KM)(JBC), 2020 WL 12654314, at *2 (D.N.J. July 9, 2020)

(concluding the Hague Service Convention “does not render email an impermissible form of

service” in Hong Kong).

Alternative service is permissible under Section 48.197(c), Florida Statutes, when it does

not violate an international agreement. § 48.197(c), FLA. STAT. (2023). Here, as mentioned, service

on FXWinning via email does not violate an international agreement between the United States

and Hong Kong. See, e.g., Zanghi v. Ritella, No. 19 CIV. 5830 (NRB), 2020 WL 589409, at *6

(S.D.N.Y. Feb. 5, 2020) (acknowledging that the Hague Service Convention does not prohibit

service on a foreign defendant via email); adidas AG v. adidas.style, No. 17-62535-CIV, 2018 WL

1801197, at *1 (S.D. Fla. Feb. 7, 2018) (same).

II. Service of Process on FXWinning via Email Satisfies Due Process.

As long as the “alternative method of service under Rule 4(f)(3)” fulfills due process

requirements, “the court can exercise its discretion” in ordering the alternative method. Premier

Trailer Leasing, Inc. v. DM World Transp., LLC, No. 8:19-CV-2558-T-60AAS, 2020 WL 886671,

at *2 (M.D. Fla. Feb. 24, 2020). Constitutional due process is satisfied where a party provides

“notice reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.” Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).

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FXWinning previously communicated with Kerns regarding the underlying scheme giving

rise to this lawsuit using its support@FXWinning.info email address. See Ex. B at ¶ 13. Kerns

received, and responded to, FXWinning’s emails from FXWinning’s support@FXWinning.info

address. Id. Not once did an email Kerns sent to this email address bounce back as undeliverable.

See Stabletracker.com, Inc. v. Seitz, No. 11-22322-CIV, 2011 WL 13224090, at *2 (S.D. Fla. July

20, 2011) (“Because the emails did not ‘bounce back,’ there is a presumption that the email

addresses are valid and that Defendants received them.”); Ex. B at ¶ 14.

What is more, FXWinning has expressed a willingness to be contacted through its

support@FXWinning.info email address because that email address is listed on the company’s

website right at the top of the home page, and at the bottom of the webpage. See Ex. C; see also

Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, 295 F.R.D. 259, 262 (S.D. Ohio 2013)

(finding email service satisfied due process where defendants hold themselves out as using those

email addresses).

Courts have long held that service by email is reasonably calculated to apprise a defendant

of the action against them thus satisfying due process. See, e.g., Dolphin Cove Inn, Inc. v. Vessel

Olympic Javelin, No. 3:10-cv-1018-J-34JRK, 2020 WL 4927590, at *4 (M.D. Fla. Aug. 21, 2020)

(finding “service via e-mail complies with due process requirements.”); see also North Face

Apparel Corp. v. Aothenorthface.com, No. 19-cv-60952, 2019 WL 7708496, at *3 (S.D. Fla. April

30, 2019) (plaintiffs adequately demonstrated that emails that were not returned as undeliverable

were likely to reach defendants via email); Zhixian, 2020 WL 1740695 at *3 (due process satisfied

where emails did not bounce back); U.S. Commodity Futures Trading Com 'n v. Aliaga, 272 F.R.D.

617, 621 (S.D. Fla. 2011) (due process satisfied by email addresses recently used to send messages

to customers); see also Gaffigan v. Does 1-10, 689 F. Supp. 2d 1332, 1342 (S.D. Fla. 2010)

7
(“Additionally, in this case, email was the method of communication used by Defendants in

confirming orders placed on its websites, and thus, email should be calculated to provide

Defendants with notice.”).

III. Courts Regularly Grant Ex Parte Motions to Serve Process Via Email.

Federal Courts regularly entertain ex parte motions to effect service of process on

defendants via alternative means. See Chengdu Jiechen Tech. Ltd. v. Trobing-US, No. 21-61020-

CIV-ALTMAN/Hunt, 2021 WL 10382802 (S.D. Fla. Aug. 10, 2021) (granting ex parte motion

for order authorizing alternate service of process); Marconi Int’l Univ., Inc. v. Ricci, No. 20-22508-

CV-MARTINEZ/OTAZO-REYES, 2020 WL 13388303, at *1 (S.D. Fla. Aug. 3, 2020) (same);

Luxottica Group S.p.A v. Individuals, P’ships & Unincorporated Ass’n Identified on Schedule

“A”, No. 19-62622-CIV-MARTINEZ-SNOW, 2020 WL 6529615, at *1 (S.D. Fla. Jan. 8, 2020)

(same); St-Honore v. Agote, No. 17-cv-62276-KMM, 2017 WL 8812537, at *1 (S.D. Fla. Dec. 28,

2017) (same).

Following that line of cases, the Complex Business Litigation Division has also granted an

ex parte service motion without a hearing. See, e.g., Maria Fabiola Organista Cardenas, et al. v.

TCG Capital, LLC, et al., No. 22-022957-CA-01 (11th Cir. Ct., June 15, 2023) (J. Rebull)

(granting plaintiffs’ ex parte motion for service of process on foreign defendant residing in

Ecuador via email without a hearing).

CONCLUSION

Based on the foregoing, Plaintiffs Cody Kerns, Kerns Capital Management, Inc., and

WFTMB Holdings, LLC request that this Court enter an order pursuant to Section 48.197, Florida

Statutes, authorizing them to serve Defendant FXWinning, Ltd. with process by sending copies of

8
the Summons, Complaint, and Plaintiffs’ First Request for Production to the following email

address: support@FXWinning.info.

Dated: August 3, 2023 Respectfully submitted,

SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, Florida 33131
(305) 925-9947

By: /s/ David M. Levine
David M. Levine, Esq.
Florida Bar No.: 84431
Email: dlevine@sfl-law.com
Secondary: eservice@sfl-law.com
Fausto Sanchez, Esq.
Florida Bar No.: 86229
Email: fsanchez@sfl-law.com
Lauren M. Allen, Esq.
Florida Bar No.: 1018424
Email: lallen@sfl-law.com
Robert Kemper, Esq.
Florida Bar. No.: 1038549
Email: rkemper@sfl-law.com
Counsel for Plaintiffs

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EXHIBIT A
EXHIBIT B
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO.: 2023-020202-CA-01

CODY KERNS, an individual, KERNS CAPITAL
MANAGEMENT, INC., a British Virgin Islands
Corporation, and WFTMB HOLDINGS, LLC,
a Florida Limited Liability Company,

Plaintiffs,

Defendants.
/

DECLARATION OF CODY KERNS IN SUPPORT OF PLAINTIFFS’ EX PARTE
MOTIONS FOR AN ORDER AUTHORIZING ALTERNATIVE SERVICE OF
PROCESS ON DEFENDANT FXWINNING, LTD. AND DEFENDANT DAVID
MERINO PURSUANT TO SECTION 48.197, FLORIDA STATUTES

I, Cody Kerns, declare as follows:

1. My name is Cody Kerns. I am a Plaintiff in this matter, I am over 18 years of age.

2. I am capable of making this declaration and I make this declaration based on my

personal knowledge.
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

3. On or around March 1, 2023, I sent a WhatsApp message to David Merino

(“Merino”) through the following mobile telephone number: +34 646 62 32 08. A true and correct

copy of the March 1, 2023 WhatsApp message is attached as Exhibit 1.

4. Merino lives in Spain and his mobile telephone number begins with the Spanish

country calling code (+34). A true and correct copy of Merino’s contact information is attached as

Exhibit 2.

5. Based on Merino’s contact information, Merino has used the +34 646 62 32 08

telephone number since at least November 2018. See Ex. 2.

6. From March 2023 through June 2023, I exchanged numerous WhatsApp messages

with Merino through the +34 646 62 32 08 telephone number. A true and correct copy of my

WhatsApp message exchange with Merino is attached as Exhibit 3.

7. Sometimes Merino would WhatsApp message me first whereas other times I would

WhatsApp message Merino first.

8. In addition to my personal WhatsApp message exchange with Merino, I was also

added to a group chat with Merino and another individual. Merino used this same telephone

number (+34 646 62 32 08) for this group chat. A true and correct copy of the WhatsApp group

chat message exchange is attached as Exhibit 4.

9. All of the WhatsApp messages I sent to Merino were received by Merino.

10. I have no reason to believe that Merino no longer uses the +34 646 62 32 08 mobile

telephone number on WhatsApp.

11. WhatsApp messaging was not the only way I communicated with Merino. On or

around June 27, 2023, I sent an email to Merino through his personal email address:

ddmmqq30@gmail.com. A true and correct copy of this email is attached as Exhibit 5.

2
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

12. This email did not bounce back.

13. In addition to my regular communication with Merino, I also communicated

regularly with FXWinning via email. FXWinning would email me from its

support@FXWinning.info email address. A true and correct copy of this email exchange is

attached as Exhibit 6.

14. None of the emails I sent to FXWinning bounced back as undeliverable.

Under penalties of perjury, I declare that I have read the foregoing Declaration and that the

facts stated in it are true and correct.
28
Executed in Boca Raton, Florida this _______ day of July, 2023.

________________________________
Cody Kerns

3
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

EXHIBIT 1
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

EXHIBIT 2
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

EXHIBIT 3
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[3/1/23, 9:16:51 PM] David Merino: Messages and calls are end-to-end encrypted. No one outside of this
chat, not even WhatsApp, can read or listen to them.

[3/1/23, 9:16:51 PM] Cody Kerns: David, soy Cody Kerns.

Fue genial verte el otro día. Espero que todo se pueda resolver en abril. sigamos conectados. Gracias por
ayudar y tomarse el �empo para reunirse. ¡signiﬁca mucho!

[3/27/23, 1:58:31 PM] David Merino: Eyyy bro

[3/27/23, 1:58:50 PM] David Merino: how are you brother? I imagine with stress like everyone

[3/27/23, 2:11:06 PM] Cody Kerns: Doing great man, yes it is stressful but I am being pa�ent. We are all in
the same posi�on. Nothing to do besides stay posi�ve!

[3/27/23, 2:11:23 PM] Cody Kerns: How are you doing?

[3/27/23, 2:12:39 PM] David Merino: I love that a�tude. When is the maximum date to send you the
500? We must think of a solu�on in case the fx audit takes longer than you can bear.

[3/27/23, 2:13:09 PM] Cody Kerns: I really appreciate you helping me with this. Obviously this stays
between you and I only.

[3/27/23, 2:13:13 PM] David Merino: me on my side, taking blows, like I'm to blame for the audit ha ha
people remember how much money they made from this

[3/27/23, 2:13:41 PM] Cody Kerns: Yeah man nothing you can do. As long as every thing is truthful all we
can do is wait for the audit to be completed

By April 15th at the latest

[3/27/23, 2:14:41 PM] Cody Kerns: Any way you can help is greatly appreciated and will stay between you
and I only

[3/27/23, 2:16:32 PM] David Merino: I will send you the 500 that I promised you. I only need from you
that it is as late as possible to con�nue accumula�ng more proﬁts in CryptoTrading

[3/27/23, 2:16:58 PM] Cody Kerns: Thank you brother � the latest will be April 15th

[3/27/23, 2:17:23 PM] Cody Kerns: Will you be able to do an internal transfer from my hedge fund account
& then send the BTC to Limitless

[3/27/23, 2:26:03 PM] David Merino: correct. So every week I will be taking proﬁts and se�ng aside it to
my Spot account un�l you no�fy me to send you

[3/27/23, 2:27:19 PM] Cody Kerns: Thank you man

Can we do the internal transfer on Friday April 14th? That way by Monday April 17th every thing has
cleared

[3/27/23, 2:54:41 PM] Cody Kerns: Let me know if that works for you

[3/27/23, 3:00:52 PM] David Merino: Ready. 14 april i will be ready
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[3/27/23, 3:02:32 PM] Cody Kerns: Great! Thank you ��

[3/27/23, 3:03:56 PM] David Merino:

[3/29/23, 8:28:56 PM] Cody Kerns: Hey David, when will you be accep�ng investors in to your crypto
trader?

[3/30/23, 2:46:46 AM] David Merino: hello dear brother We are now 100% ready. What are you up to?

[3/30/23, 6:52:26 AM] Cody Kerns: Would you allow me to invest $100K from the hedge fund to try it out?
How does the process work

[3/30/23, 6:53:07 AM] David Merino: of course brother. feel comfortable with the amount you want.

[3/30/23, 6:55:11 AM] Cody Kerns: Would love to.

The only ques�on my administra�on team will ask is if we will be able to see the trades being executed or
have some sort of repor�ng?

Also, will it work the same. I wire limitless USD & they can send you currency, then when I want to cash
out you send limitless currency & they can wire me back usd?

[3/30/23, 6:56:09 AM] David Merino: I can create a report every month of the results. Remember that
this account is mine that I will use for the company fund as well

[3/30/23, 6:56:35 AM] David Merino: I understand that you send in Bitcoin or usdt and withdraw in the
same way?

[3/30/23, 6:57:00 AM] David Merino: because if you want to do it by bank transfer, we would have to do
it directly with my investment fund, and we would have to create your registra�on as a fund

[3/30/23, 6:57:34 AM] Cody Kerns: Yes that would be great. They will want to see the trades executed.

To deposit, Yes I send USD to limitless. Limitless sends you BTC

When I take proﬁts, you send BTC to limitless & they send me back usd.

That is only way it can work for my fund

[3/30/23, 6:58:21 AM] David Merino: Can be done.

[3/30/23, 6:58:33 AM] Cody Kerns: That would be great

[3/30/23, 6:59:05 AM] David Merino: With my Hedge I am developing a system so that the client can see
all the real �me. with a back oﬃce where you can monitor the business

[3/30/23, 6:59:42 AM] Cody Kerns: That’s amazing. I am Excited to see that.

I can start with $100K on April 3?

[3/30/23, 6:59:59 AM] David Merino: downloadable reports.

[3/30/23, 7:00:02 AM] David Merino: Yes
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[3/30/23, 7:00:04 AM] Cody Kerns: Will I be shared a spreadsheet or be able to see the account growth at
all?

[3/30/23, 7:00:31 AM] David Merino: Exactly

[3/30/23, 7:00:41 AM] Cody Kerns: Perfect! & how o�en can I withdraw proﬁts?

[3/30/23, 7:00:55 AM] David Merino: I'll show you something magical…

[3/30/23, 7:01:21 AM] David Merino: On the Crypto issue we make cuts every Sunday and on Mondays
we are withdrawing

[3/30/23, 7:01:37 AM] Cody Kerns: Wow so every week?

[3/30/23, 7:01:58 AM] David Merino:

[3/30/23, 7:02:01 AM] Cody Kerns: Yes I would only like to withdraw once per month for the fund

[3/30/23, 7:02:01 AM] David Merino: ���

[3/30/23, 7:02:32 AM] Cody Kerns: Wow….

[3/30/23, 7:02:45 AM] David Merino: Hahahaha

[3/30/23, 7:02:56 AM] Cody Kerns: ���

[3/30/23, 7:03:25 AM] David Merino: This is a quantum trading opera�on that I brought from the
blackRock fund. bro if they kill me please tell my friends in miami i love them lol

[3/30/23, 7:03:43 AM] Cody Kerns: LOL

[3/30/23, 7:03:54 AM] Cody Kerns: #MissionProtectDavid

[3/30/23, 7:04:08 AM] Cody Kerns: We need our private jet $ �

[3/30/23, 7:04:41 AM] David Merino: Jaaa

[3/30/23, 7:04:48 AM] Cody Kerns: What are next steps?

[3/30/23, 7:05:52 AM] David Merino: One moment

[3/30/23, 7:05:56 AM] David Merino: Iamcall

[3/30/23, 8:42:12 AM] Cody Kerns: No worries keep me posted

[3/30/23, 8:44:40 AM] David Merino: Do you want to do a test on a personal level I understand? Do you
want to make a contract or something?

[3/30/23, 8:45:01 AM] Cody Kerns: I would like to test with the hedge fund

[3/30/23, 8:45:36 AM] Cody Kerns: I can test with personal as well but that would be at end of April l

[3/30/23, 8:46:53 AM] David Merino: The thing is that if you try with the fund, I have to make the contract
with my fund and that would be with 500 K. If you do it personally, it would be between you and me and
it doesn't mater if it's less
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[3/30/23, 8:48:22 AM] Cody Kerns: That makes sense.

I can do personal in a few weeks at the end of April. Once ready I will message you here �

With the hedge fund I can do $500K on May 1 a�er our next raise.

[3/30/23, 8:49:00 AM] Cody Kerns: I wish I could take my personal Fx winning account & send to you �

most of my available cash is stuck there ��

[3/30/23, 8:49:46 AM] David Merino: this will be over soon.

[3/30/23, 8:49:53 AM] Cody Kerns: Count me in for personal and hedge fund, I just need some �me

[3/30/23, 8:50:26 AM] Cody Kerns: Once ready I’ll message you �

Thank you for alllwing me to be involved

[3/30/23, 2:19:31 PM] Cody Kerns: What is the proﬁt split on crypto trader?

[3/30/23, 2:20:36 PM] David Merino: how do you know that is highly variable, but if the market moves in
a trend either going up or down we can be around 4 to 5% per week

[3/30/23, 2:21:46 PM] Cody Kerns: How much do you take for your fee

[4/5/23, 3:42:22 PM] Cody Kerns: Hey man! Let me know what your fee is for the crypto fund. The
percentage that you take

[4/5/23, 3:43:29 PM] Cody Kerns: I’d like to invest some in May

[4/6/23, 10:01:20 AM] Cody Kerns: Let me know brother.

I know you are busy

[4/6/23, 10:04:19 AM] David Merino: Dear brother! 75% yours 25% the fund.

[4/6/23, 10:04:32 AM] David Merino: Uuﬀﬀ verryyyyyy busy lol

[4/6/23, 10:05:12 AM] David Merino: I'll be in Miami on Monday and I'm leaving on Wednesday. We could
meet up with the boys and organize the work plan.

[4/6/23, 10:05:16 AM] Cody Kerns: Yes I can imagine how busy � That’s great! Perfect

By the way, next Friday April 14, for the 500. Are we s�ll good for that.

[4/6/23, 10:05:25 AM] Cody Kerns: Yes man! Let’s do it I’ll be here

[4/6/23, 10:05:50 AM] David Merino: Yessss. 14

[4/6/23, 10:06:01 AM] Cody Kerns: Perfect I’ll see you next week

[4/6/23, 10:06:04 AM] Cody Kerns: �

[4/6/23, 10:06:10 AM] David Merino:
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/10/23, 9:04:40 AM] Cody Kerns: Hey brother, I spoke to Jonny.

I think it will be easier for us all if we can do a zoom call today to go over the crypto trader. Let me know if
4 PM or 5 PM works for you!

[4/10/23, 9:07:09 AM] David Merino: Hi friend, good morning. at 3:00 p.m. my ﬂight NY-MIAMI leaves.
He won't give me �me.

[4/10/23, 9:07:41 AM] Cody Kerns: No problem! Want to do later tonight. 7pm?

[4/10/23, 9:09:47 AM] David Merino: Yes Perfect

[4/10/23, 9:11:43 AM] Cody Kerns: Perfect bro see you then. Safe travels.

[4/10/23, 9:13:06 AM] David Merino: Thank bro

[4/10/23, 9:13:08 AM] David Merino:

[4/10/23, 5:20:58 PM] Cody Kerns: Hey bro, just checking in to see if we are s�ll good for 7 PM?

[4/10/23, 5:26:22 PM] David Merino: could you 6:30?

[4/10/23, 5:26:32 PM] Cody Kerns: Yeah that’s beter

[4/10/23, 5:26:43 PM] Cody Kerns: I’ll send zoom link then

[4/10/23, 6:23:35 PM] Cody Kerns:
htps://us06web.zoom.us/j/87870576789?pwd=bW5wZ0lMa2hJZGtOdjU0UWFuTmV2dz09

[4/12/23, 7:39:54 AM] Cody Kerns: Hey David!

On Friday can we use Limitless bank for the 500k transfer? If you are able to send them crypto they can
then convert it to USD for me. My fund can only accept USD.

Let me know if that works for you, thank you �

[4/12/23, 7:46:39 AM] David Merino: hi, friend. Yes of course

[4/12/23, 7:46:58 AM] Cody Kerns: Thank you bro

[4/12/23, 7:47:33 AM] Cody Kerns: Also Let me know the best email to send my hedge fund docs to so i
can be cleared when we are ready to make investment

[4/12/23, 7:55:06 AM] David Merino: Ok. I will send you today

[4/12/23, 7:55:18 AM] Cody Kerns: Perfect

[4/13/23, 9:42:55 AM] Cody Kerns: The Hedge fund account #142957

[4/13/23, 9:44:08 AM] David Merino: Hi bro

[4/13/23, 9:44:48 AM] Cody Kerns: Hey man, I wanted to send the account number so you could take the
$500k a�er trading is done today

[4/13/23, 9:45:08 AM] David Merino: I'm s�ll in full ﬂight. �
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/13/23, 9:45:29 AM] Cody Kerns: No problem � safe travels

[4/13/23, 9:47:25 AM] Cody Kerns: Will I need to email Fx winning to make the internal request? Or is it
something you can do

[4/13/23, 9:49:03 AM] David Merino: You must send an email to fx sending from your ID to my ID. I do
not have authoriza�on to take your money �

[4/13/23, 9:49:19 AM] Cody Kerns: That makes sense �

[4/13/23, 9:49:29 AM] David Merino: Exactly brodi

[4/13/23, 9:49:39 AM] Cody Kerns: What is your ID #? I’ll email them today so they can get it done asap

[4/13/23, 9:50:07 AM] David Merino:

[4/13/23, 9:50:17 AM] Cody Kerns: ���

[4/13/23, 9:51:19 AM] David Merino: 100857

[4/13/23, 9:54:49 AM] Cody Kerns: Honestly man thank you so much saving me this month.

[4/13/23, 9:54:55 AM] Cody Kerns: It’s appreciated more than you know

[4/13/23, 9:56:41 AM] Cody Kerns:

[4/13/23, 9:57:33 AM] David Merino: thank you for the trust

[4/13/23, 9:57:39 AM] David Merino: Excellent

[4/13/23, 9:57:51 AM] Cody Kerns: ��� hopefully they can do it today / tomorrow

[4/13/23, 9:57:53 AM] David Merino: today we le� this done

[4/13/23, 9:58:27 AM] Cody Kerns: Excited to con�nue working together Your new fund seems like a great
opportunity

[4/13/23, 9:59:39 AM] Cody Kerns: Would love to get all $12M to your hedge fund � we will see how
next month goes with FX winning

[4/13/23, 10:06:21 AM] David Merino: super !! Now we will do business as God intended!

[4/13/23, 10:07:51 AM] Cody Kerns: Yes we will �

[4/13/23, 10:08:52 AM] David Merino:

[4/13/23, 5:17:50 PM] Cody Kerns: Hey bro, how long does it usually take for them to complete the internal
transfer?

[4/14/23, 4:05:30 AM] David Merino: I do not know, my friend. Don't worry about yours. Even if I don't
get it, I'll send you for tax

[4/14/23, 8:00:51 AM] Cody Kerns: Thank you brother
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

Whenever we can get it done today would be great

[4/14/23, 8:01:04 AM] Cody Kerns: Let me know if you need any other info from me

[4/14/23, 8:01:34 AM] Cody Kerns: Would be great to have this done today

[4/14/23, 8:29:24 AM] David Merino: tell me the wallet

[4/14/23, 8:32:46 AM] Cody Kerns: BTC Right?

[4/14/23, 8:33:26 AM] David Merino: Usdt

[4/14/23, 10:20:29 AM] Cody Kerns: *Wallets LAM - Setlement*

*USDT and USDC*

_*ERC20*_

0xDe2DC29591dBc6e540b63050D73E2E9430733A90

*USDT and USDC*

_*TRC20*_

TGoTqWUhLMFQyAm3BeFUEwMuUPDMY4g3iG

[4/14/23, 10:20:35 AM] David Merino: Okkk

[4/14/23, 10:21:29 AM] Cody Kerns: Appreciate you let me know when sent I’ll conﬁrm when received �

[4/14/23, 10:22:47 AM] David Merino: in 5min it will be done.

[4/14/23, 10:24:35 AM] Cody Kerns: �

[4/14/23, 10:25:28 AM] David Merino:

[4/14/23, 10:26:20 AM] Cody Kerns: I’ll conﬁrm when get

[4/14/23, 10:26:30 AM] Cody Kerns: Thank you brother seriously

[4/14/23, 10:26:35 AM] Cody Kerns: Much love

[4/14/23, 10:27:21 AM] David Merino: with great pleasure. Working together we will be stronger.

[4/14/23, 10:28:12 AM] Cody Kerns: 100% agree with you.

I am looking forward to working with your new fund

[4/14/23, 10:28:34 AM] Cody Kerns: All of the money we raise this month we will deploy with you in May.
Let me know what we need to clear compliance

[4/14/23, 10:33:09 AM] David Merino: I will add my lawyer in the group with jonny so we centralize all the
informa�on
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/14/23, 10:36:44 AM] Cody Kerns: USDT received

[4/14/23, 10:36:49 AM] David Merino:

[4/14/23, 10:37:22 AM] Cody Kerns: ��

[4/14/23, 10:37:28 AM] David Merino: Jajajja

[4/14/23, 10:37:42 AM] Cody Kerns: Now �me to hit 100M

[4/14/23, 6:53:43 PM] Cody Kerns:

[4/18/23, 9:18:01 AM] Cody Kerns: Hey David, I never heard back from your atorney about where to send
the documents for your funds KYC

[4/18/23, 9:18:27 AM] Cody Kerns: Let me know if it is s�ll something we can work together on in May

[4/18/23, 9:42:36 AM] David Merino: Hello friend, good morning, Urimare, who is one of the fund's
lawyers, will contact you.

[4/18/23, 9:42:50 AM] Cody Kerns: Sounds great �

[4/18/23, 10:03:47 AM] David Merino:

[4/20/23, 2:01:02 PM] Cody Kerns: Hey Brother sorry to bother you,

I wanted to ask if you are conﬁdent this will be fully resolved by Mid/End of May?

[4/20/23, 2:05:28 PM] David Merino: Hi Brother, good a�ernoon, that's what I think, but obviously I'm not
in the auditorium.

[4/20/23, 2:06:40 PM] Cody Kerns: What do you think will happen or what should we do if it’s not resolved
by then?

[4/20/23, 2:08:53 PM] David Merino: Well, what I proposed to you in the call with Jonny. always in the
case that it lengthens much more. I hope no.

[4/20/23, 2:10:14 PM] Cody Kerns: Ah yes, that is great to hear. I propose we should circle up early / mid
May & see where the situa�on is at then.

I have a smaller personal account that I would also be willing to pay 5-10% fee to get that out as well. We
can discuss if it gets to that point �

Thank you

[4/24/23, 6:05:39 PM] Cody Kerns: Hi David, I don’t ever expect you to do this but I want to ask.

Would you consider keeping 10-15% of my personal account to get it liquidated before the hedge fund? I
really need access to my funds. Trying to think of ideas

I don’t need the hedge fund Capital un�l July
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/25/23, 7:13:19 AM] Cody Kerns: My account is at 5.6M If we can get it liquidated, I will invest 1M+ with
your fund personally to start & you can keep $500-600K of the 5.6M to yourself for helping me. A nice
proﬁt.

[4/25/23, 7:16:26 AM] David Merino: hi, friend. I can't be without anything. everyone is asking me this
the same. right now is not the �me

[4/25/23, 9:06:25 AM] Cody Kerns: I understand. But you would do it for the hedge fund as discussed?

[4/25/23, 9:08:14 AM] Cody Kerns: If not resolved by mid May

[4/25/23, 9:09:07 AM] David Merino: Yeah. but I need to close the nego�a�ons with the bond, they are
large amounts and I cannot decapitalize

[4/25/23, 9:10:10 AM] Cody Kerns: Rafa needs to get this resolved in May.

[4/25/23, 9:10:51 AM] David Merino: remember that it is not Rafa, the one who decides or processes the
audits, but a company external to the Broker that depends on the provider's regulator

[4/25/23, 9:13:15 AM] David Merino: My brother, how much do you have in your personal account?

[4/25/23, 9:15:10 AM] Cody Kerns: I have $5.6M in my personal

[4/25/23, 9:15:43 AM] Cody Kerns:

[4/25/23, 9:18:42 AM] Cody Kerns: Really need access to my money man. Had a baby a few months ago,
taxes are due I had to postpone.

I have 100% of my liquidity in Fx winning. I’m not blaming anybody but I never knew this could be possible.
That is why I asked for you to keep $612,462.96 and if I could get my $5M. �

[4/25/23, 10:16:17 AM] Cody Kerns: Why do you ask?

[4/25/23, 10:22:30 AM] David Merino: I have a person who is buying balance at 50%. It is a Chinese, I tell
you as an op�on or we wait for them to solve the audit or for me to buy the balance to put it in the fund

[4/25/23, 10:30:52 AM] Cody Kerns: Would you cash out both my personal account and my hedge fund
account if I put it in your fund?

[4/25/23, 10:33:31 AM] Cody Kerns: Or you are saying you would only do the personal to your fund right
now

[4/25/23, 10:40:40 AM] David Merino: all. In other words, what I told you the other �me on the call with
Jhonny was that as soon as I can liquidate the bond that I have with JP Morgan, I can buy your balance and
add that capital to our fund and start the rela�onship with a regulated structure. Did we not understand
each other?

[4/25/23, 10:41:14 AM] Cody Kerns: Yes I fully agree with that

[4/25/23, 10:42:15 AM] Cody Kerns: You deleted this message.

[4/25/23, 10:42:51 AM] Cody Kerns: That way I will have a personal account with your fund & I will have
my hedge fund account with your fund.
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/25/23, 10:43:08 AM] Cody Kerns: When do you believe you will be able to liquidate your bond with JP?

[4/25/23, 11:09:53 AM] David Merino: my lawyers are with the nego�a�on obviously there are 500 million
and that takes a process. But everything points to what is going to happen.

[4/25/23, 11:15:58 AM] Cody Kerns: That’s great man, huge amount.

Do you think you will have access to cash this all out within 60-90 days? I am just trying to get a �meline
�

[4/25/23, 11:27:19 AM] David Merino: Honestly, I hope that everything in your account can be locked up
throughout this month in the worst case in June

[4/25/23, 11:27:55 AM] Cody Kerns: That’s good to hear. So we are expec�ng May or June

[4/26/23, 1:11:48 PM] Cody Kerns: Hey David, you said you your Chinese contact does 50% fee. Does he
do par�al amounts or only the en�re account amount?

[4/26/23, 1:12:24 PM] Cody Kerns: Trying to ﬁgure out the best way to get $500-1M liquidated asap but I
do not want to take 50% loss on the en�re account.

[4/26/23, 3:15:05 PM] Cody Kerns:

[4/26/23, 3:20:06 PM] David Merino: Great bro

[4/26/23, 3:20:19 PM] David Merino: Can I ask

[4/26/23, 3:28:41 PM] Cody Kerns: Excited to get involved with you. is your repor�ng dashboard
completed?

[4/29/23, 10:54:43 AM] Cody Kerns: Hey David hope you’re having a great weekend. If you don’t mind me
asking, what broker does your fund use in the USA for the forex strategy. Also, whenever the KYB is
completed I will send over $$ for my fund,

[4/29/23, 11:27:57 AM] David Merino: hi, friend. good day. we use interac�ve broker. They are also going
to give us the liquidity directly jpmorgan

[4/29/23, 11:42:21 AM] Cody Kerns: Wow that’s great

[4/29/23, 11:43:18 AM] Cody Kerns: htps://www.interac�vebrokers.com/en/home.php

[4/29/23, 11:43:19 AM] Cody Kerns: Them?

[4/29/23, 11:46:53 AM] David Merino: Yessss

[4/29/23, 11:59:48 AM] Cody Kerns: �

[4/29/23, 12:00:51 PM] Cody Kerns: Have you had any liquidity issues? Or are you very conﬁdent in the
new strategies

[4/29/23, 12:12:44 PM] David Merino: liquidity problems? impossible. If these brokers have problems it's
because the world is going to end lol
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/29/23, 12:37:52 PM] Cody Kerns: �� amazing bro

[4/29/23, 12:37:54 PM] Cody Kerns: You deleted this message.

[4/29/23, 12:38:14 PM] Cody Kerns: We will celebrate the day I can transfer all of Fx winning in to your
fund �

[5/8/23, 10:32:41 AM] Cody Kerns: Hey David, hope you’re doing great man. I wanted to ask if you have
received any updates?

[5/21/23, 12:16:28 PM] Cody Kerns: KYC KYB was approved for your fund �

[5/21/23, 12:17:39 PM] Cody Kerns: Urimare is sending me the documents to ﬁnalize onboarding process.
Hopefully by June 7th we are released by FXW & I can get some funds over working with you.

[5/22/23, 11:06:21 AM] Cody Kerns: You deleted this message.

[6/1/23, 10:55:39 AM] Cody Kerns: Hi David I hope you are feeling much beter. Praying for a speedy
recovery �
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

EXHIBIT 4
DocuSign Envelope ID: D220BEDA-5EFF-40CB-9B0D-BC4657F0105B

[4/10/23, 7:14:37 PM] KC / Merino Solu�ons Chat: Messages and calls are end-to-end encrypted. No one
outside of this chat, not even WhatsApp, can read or listen to them.

[4/10/23, 7:14:37 PM] KC / Merino Solu�ons Chat: You created group “KC Hedge Fund ”

[4/10/23, 7:14:53 PM] Cody Kerns: What is the name of David’s Fund?

[4/10/23, 7:23:18 PM] David Merin

Case Info

Judge

CA44 - Downtown Miami - Judge Walsh, Lisa S Track Judge’s New Case

Case No.

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Document Filed Date

August 03, 2023

Case Filing Date

July 24, 2023

County

Parties

Barakat, Brian Attorney for the Defendant
BBRC Real Estate, LLC Defendant
Bianchi, Jaime Augusto Attorney for the Defendant
Brito Cutie, Rafael Defendant
da Rocha Gomes Bastos, Renan Defendant
FXWinning, Ltd. Defendant
Kaplan, Justin B Attorney for the Defendant
Kerns Capital Management, Inc. Plaintiff
Kerns, Cody Plaintiff
Kuschner, Julian Defendant
Levine David M Attorney for the Plaintiff
Lopez, Jonathan Defendant
Merino, David Defendant
WFTMB Holdings LLC Plaintiff
Fausto Sanchez Attorneys for Plaintiffs
Lauren Allen Attorneys for Plaintiffs
Ryan Todd Attorney
Elaine Kussurelis Attorney
Grant Smith Attorneys for Defendants
Jocelyne Macelloni Attorneys for Defendants
Jo-Jean Figueira Attorney
Spencer Thompson Attorney
Matthew Akiba Attorney
Michael Sontag Attorney
Zachary Dickens Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Summons: CODY KERNS ET AL VS FXWINNING, LTD. ET AL

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Case Info

Parties