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Filing # 192369219 E-Filed 02/20/2024 06:16:06 PM
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, et al.,
Plaintiffs,
v.
FXWINNING, LTD., et al.,
Defendants.
/
PLAINTIFFS’ MOTION TO CONSOLIDATE
Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and
WFTMB Holdings, LLC (“WFTMB”) (collectively, “Plaintiffs”), pursuant to Florida Rule of Civil
Procedure 1.270(a), hereby move to consolidate this action with the earlier filed action styled CFT
Solutions, LLC, et al. v. FXWinning, Ltd., et al., Case No. 2023-016392-CA-01 (the “First Action”),
which is pending before the Honorable Lisa S. Walsh in the Complex Business Division of the
Eleventh Judicial Circuit in and for Miami-Dade County, and in support, state as follows:
PROCEDURAL BACKGROUND
1. On May 5, 2023, Plaintiffs, CFT Solutions, LLC (“CFT Solutions”), Renan da
Rocha Gomes Bastos, Adelangela Fumagalli, Jay Katari, Steven de la Fe, and Kerim Eduardo
Salume Babun, initiated the First Action against Defendants FXWinning, Ltd. (“FXWinning”),
David Merino (“Merino”), Rafael Brito Cutie (“Brito”), and others.
1
2. On July 24, 2023, Plaintiffs initiated this action (the “Second Action”) against
Defendants, FXWinning, Merino, Brito, and others. 1
3. The First Action and the Second Action involve a dispute regarding an alleged fraud
perpetrated by the common Defendants, FXWinning, FXWinning’s CEO, Brito, and
founder/owner, Merino.
4. The common Defendants, FXWinning, Brito, and Merino, have raised similar
challenges to personal jurisdiction and service in both the First Action and the Second Action.
5. Additionally, and except for Plaintiff Jay Katari in the First Action, the parties are
represented by the same counsel in both the First Action and the Second Action.
6. Both the First Action and the Second Action are ostensibly in the early stages of
litigation as no answer has been filed in either case.
MEMORANDUM OF LAW
“Generally, consolidation is within the discretion of the trial court.” Wetherington v. State
Farm Mut. Auto. Ins. Co., 661 So. 2d 1276, 1277 (Fla. 2d DCA 1995) (internal citations omitted).
“In deciding whether to consolidate cases, a trial court must consider: (1) whether the trial process
will be accelerated due to the consolidation; (2) whether unnecessary costs and delays can be
avoided by consolidation; (3) whether there is the possibility for inconsistent verdicts; (4) whether
consolidation would eliminate duplicative trials that involve substantially the same core of
operative facts and questions of law; and (5) whether consolidation would deprive a party of a
substantive right.” See State Farm Florida Ins. Co. v. Bonham, 886 So. 2d 1072, 1074 (Fla. 5th
DCA 2004) (citing Fla. R. Civ. P. 1.270(a)).
1
In the Second Action, Plaintiffs have since dismissed Defendants, Julian Kuschner,
Jonathan Lopez, Renan da Rocha Gomes Bastos, and BBRC Real Estate, LLC.
2
Here, both the First Action and the Second Action are before the same Court and the same
judge, the cases share similar defendants, the majority of the parties are represented by the same
counsel, and there will be significant overlap in witnesses in both cases. The underlying facts are
substantially similar as each case is centered around the alleged fraud perpetrated by FXWinning
and other defendants. See Carrera v. UPS Supply Chain Sols., Inc., Case No. 11-22332-CIV, 2011
WL 13112070, at *3 (S.D. Fla. Nov. 4, 2011) (granting motion to consolidate and stating, “[f]irst,
both cases are before this Court. Second, both cases involve similar groups of plaintiffs and the
same defendant. Third, the case involve identical legal issues . . . .”).
I. The Trial Process Will be Accelerated Due to Consolidation.
Consolidating the First Action and the Second Action will accelerate the trial by avoiding
two parallel proceedings on a similar set of facts. Indeed, the plaintiffs in both actions have brought
various claims sounding in fraud against FXWinning, Merino, Brito, and other defendants. It will
be more efficient for one jury to resolve the factual issues surrounding FXWinning’s purported
online foreign currency exchange and to weigh the credibility of the same witnesses. To have this
Court preside over two parallel proceedings involving similar parties, facts, and counsel would
result in multiple overlapping proceedings. This will result in unnecessary delay in adjudicating
both actions.
II. Unnecessary costs and delays can be avoided by consolidation.
In a similar fashion, consolidation will avoid unnecessary costs and delays. As stated
above, the two actions involve substantially similar parties and facts and will necessarily require
testimony from many of the same witnesses. Indeed, consolidation should save expense for all
parties by avoiding the prosecution and defense of identical factual and legal issues.
3
III. The Possibility of Inconsistent Verdicts Will be Avoided.
The possibility of inconsistent verdicts will be avoided if these two cases are consolidated.
Significantly, several defendants could be found liable for fraud in the First Action while being
found not liable in the Second Action for the same alleged fraud, or vice versa. The prospect of
inconsistent verdicts on virtually identical facts is the very reason why consolidation is appropriate
here. See Holiday Inns, Inc. v. Spevak, 639 So. 2d 1110, 1111 (Fla. 1st DCA 1994) (“[W]e feel
compelled to overturn the lower court’s order and to require consolidation to avoid the possibility
of inconsistent results.”).
IV. Consolidation Will Eliminate Duplicative Trials Involving Substantially the Same
Core of Operative Facts and Questions of Law.
Here, consolidation will eliminate duplicative trials involving a similar core of operative
facts and questions of law. Indeed, plaintiffs in both actions contend that several common
defendants engaged in a conspiracy to defraud them by soliciting investors to invest in
FXWinning’s purported online foreign currency exchange. Relatedly, both actions involve the
common question of whether FXWinning breached its own terms and conditions by refusing to
permit its customers to withdraw their funds from their respective FXWinning accounts. These are
core factual and legal issues that should be resolved in the same case.
V. Consolidation Will Not Deprive Any Party of a Substantive Right.
Consolidation will not deprive any party of a substantive right. Because similar defendants
are being sued under similar (if not identical) theories of law and underlying facts, consolidation
will actually protect the common defendants from inconsistent findings of liability.
4
WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB
Holdings, LLC, respectfully request that this Court enter an order consolidating this action with
the earlier action styled CFT Solutions, LLC, et al. v. FXWinning, Ltd., et al., Case No. 2023-
016392-CA-01, and for such other and further relief as this Court deems just and appropriate.
Dated: February 20, 2024 Respectfully submitted,
SANCHEZ FISCHER LEVINE, LLP
1200 Brickell Avenue, Suite 750
Miami, Florida 33131
Telephone: (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
Robert Kemper, Esq.
Florida Bar. No.: 1038549
Email: rkemper@sfl-law.com
Counsel for Plaintiffs
CBL RULE 4.3 CERTIFICATE OF CONFERRAL
I HEREBY CERTIFY that on February 20, 2024, counsel for Plaintiffs conferred with
counsel for Defendants, FXWinning, Ltd., David Merino, and Rafael Brito Cutie, who represented
that Defendants do not object to consolidation for discovery purposes, but do object to a complete
consolidation of the two actions.
By: /s/ David M. Levine
David M. Levine, Esq.
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 20, 2024 a true and correct copy of the foregoing
was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts
eFiling Portal.
By: /s/ David M. Levine
David M. Levine, Esq.
6
Preview
Filing # 192369219 E-Filed 02/20/2024 06:16:06 PM 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, et al., Plaintiffs, v. FXWINNING, LTD., et al., Defendants. / PLAINTIFFS’ MOTION TO CONSOLIDATE Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and WFTMB Holdings, LLC (“WFTMB”) (collectively, “Plaintiffs”), pursuant to Florida Rule of Civil Procedure 1.270(a), hereby move to consolidate this action with the earlier filed action styled CFT Solutions, LLC, et al. v. FXWinning, Ltd., et al., Case No. 2023-016392-CA-01 (the “First Action”), which is pending before the Honorable Lisa S. Walsh in the Complex Business Division of the Eleventh Judicial Circuit in and for Miami-Dade County, and in support, state as follows: PROCEDURAL BACKGROUND 1. On May 5, 2023, Plaintiffs, CFT Solutions, LLC (“CFT Solutions”), Renan da Rocha Gomes Bastos, Adelangela Fumagalli, Jay Katari, Steven de la Fe, and Kerim Eduardo Salume Babun, initiated the First Action against Defendants FXWinning, Ltd. (“FXWinning”), David Merino (“Merino”), Rafael Brito Cutie (“Brito”), and others. 1 2. On July 24, 2023, Plaintiffs initiated this action (the “Second Action”) against Defendants, FXWinning, Merino, Brito, and others. 1 3. The First Action and the Second Action involve a dispute regarding an alleged fraud perpetrated by the common Defendants, FXWinning, FXWinning’s CEO, Brito, and founder/owner, Merino. 4. The common Defendants, FXWinning, Brito, and Merino, have raised similar challenges to personal jurisdiction and service in both the First Action and the Second Action. 5. Additionally, and except for Plaintiff Jay Katari in the First Action, the parties are represented by the same counsel in both the First Action and the Second Action. 6. Both the First Action and the Second Action are ostensibly in the early stages of litigation as no answer has been filed in either case. MEMORANDUM OF LAW “Generally, consolidation is within the discretion of the trial court.” Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So. 2d 1276, 1277 (Fla. 2d DCA 1995) (internal citations omitted). “In deciding whether to consolidate cases, a trial court must consider: (1) whether the trial process will be accelerated due to the consolidation; (2) whether unnecessary costs and delays can be avoided by consolidation; (3) whether there is the possibility for inconsistent verdicts; (4) whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law; and (5) whether consolidation would deprive a party of a substantive right.” See State Farm Florida Ins. Co. v. Bonham, 886 So. 2d 1072, 1074 (Fla. 5th DCA 2004) (citing Fla. R. Civ. P. 1.270(a)). 1 In the Second Action, Plaintiffs have since dismissed Defendants, Julian Kuschner, Jonathan Lopez, Renan da Rocha Gomes Bastos, and BBRC Real Estate, LLC. 2 Here, both the First Action and the Second Action are before the same Court and the same judge, the cases share similar defendants, the majority of the parties are represented by the same counsel, and there will be significant overlap in witnesses in both cases. The underlying facts are substantially similar as each case is centered around the alleged fraud perpetrated by FXWinning and other defendants. See Carrera v. UPS Supply Chain Sols., Inc., Case No. 11-22332-CIV, 2011 WL 13112070, at *3 (S.D. Fla. Nov. 4, 2011) (granting motion to consolidate and stating, “[f]irst, both cases are before this Court. Second, both cases involve similar groups of plaintiffs and the same defendant. Third, the case involve identical legal issues . . . .”). I. The Trial Process Will be Accelerated Due to Consolidation. Consolidating the First Action and the Second Action will accelerate the trial by avoiding two parallel proceedings on a similar set of facts. Indeed, the plaintiffs in both actions have brought various claims sounding in fraud against FXWinning, Merino, Brito, and other defendants. It will be more efficient for one jury to resolve the factual issues surrounding FXWinning’s purported online foreign currency exchange and to weigh the credibility of the same witnesses. To have this Court preside over two parallel proceedings involving similar parties, facts, and counsel would result in multiple overlapping proceedings. This will result in unnecessary delay in adjudicating both actions. II. Unnecessary costs and delays can be avoided by consolidation. In a similar fashion, consolidation will avoid unnecessary costs and delays. As stated above, the two actions involve substantially similar parties and facts and will necessarily require testimony from many of the same witnesses. Indeed, consolidation should save expense for all parties by avoiding the prosecution and defense of identical factual and legal issues. 3 III. The Possibility of Inconsistent Verdicts Will be Avoided. The possibility of inconsistent verdicts will be avoided if these two cases are consolidated. Significantly, several defendants could be found liable for fraud in the First Action while being found not liable in the Second Action for the same alleged fraud, or vice versa. The prospect of inconsistent verdicts on virtually identical facts is the very reason why consolidation is appropriate here. See Holiday Inns, Inc. v. Spevak, 639 So. 2d 1110, 1111 (Fla. 1st DCA 1994) (“[W]e feel compelled to overturn the lower court’s order and to require consolidation to avoid the possibility of inconsistent results.”). IV. Consolidation Will Eliminate Duplicative Trials Involving Substantially the Same Core of Operative Facts and Questions of Law. Here, consolidation will eliminate duplicative trials involving a similar core of operative facts and questions of law. Indeed, plaintiffs in both actions contend that several common defendants engaged in a conspiracy to defraud them by soliciting investors to invest in FXWinning’s purported online foreign currency exchange. Relatedly, both actions involve the common question of whether FXWinning breached its own terms and conditions by refusing to permit its customers to withdraw their funds from their respective FXWinning accounts. These are core factual and legal issues that should be resolved in the same case. V. Consolidation Will Not Deprive Any Party of a Substantive Right. Consolidation will not deprive any party of a substantive right. Because similar defendants are being sued under similar (if not identical) theories of law and underlying facts, consolidation will actually protect the common defendants from inconsistent findings of liability. 4 WHEREFORE, Plaintiffs, Cody Kerns, Kerns Capital Management, Inc., and WFTMB Holdings, LLC, respectfully request that this Court enter an order consolidating this action with the earlier action styled CFT Solutions, LLC, et al. v. FXWinning, Ltd., et al., Case No. 2023- 016392-CA-01, and for such other and further relief as this Court deems just and appropriate. Dated: February 20, 2024 Respectfully submitted, SANCHEZ FISCHER LEVINE, LLP 1200 Brickell Avenue, Suite 750 Miami, Florida 33131 Telephone: (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 Robert Kemper, Esq. Florida Bar. No.: 1038549 Email: rkemper@sfl-law.com Counsel for Plaintiffs CBL RULE 4.3 CERTIFICATE OF CONFERRAL I HEREBY CERTIFY that on February 20, 2024, counsel for Plaintiffs conferred with counsel for Defendants, FXWinning, Ltd., David Merino, and Rafael Brito Cutie, who represented that Defendants do not object to consolidation for discovery purposes, but do object to a complete consolidation of the two actions. By: /s/ David M. Levine David M. Levine, Esq. 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 20, 2024 a true and correct copy of the foregoing was filed with the Clerk of the Court and served on all counsel of record via the Florida Courts eFiling Portal. By: /s/ David M. Levine David M. Levine, Esq. 6