Motion to Compel in CODY KERNS ET AL VS FXWINNING, LTD. ET AL| Trellis.Law

On July 24, 2023 a Motion-Secondary 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 # 194745878 E-Filed 03/25/2024 03:01:42 PM

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

CODY KERNS, an individual, et al.,
CASE NO.: 2023-020202-CA-01
Plaintiffs,

FXWINNING, LTD., a Hong Kong Limited
Company, et al.,

Defendants.

DEFENDANT FXWINNING LTD.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’
MOTION TO COMPEL BETTER DISCOVERY RESPONSES AND
TO OVERRULE DEFENDANTS’ OBJECTIONS

Defendant FxWinning, Ltd. (“FX”), pursuant to Florida Rule of Civil Procedure 1.280,

1.350, and 1.380, specially appearing on a limited basis by and through the undersigned counsel

for the sole purpose of challenging the efficacy of service, jurisdiction and venue and any related

hearing, hereby responds in opposition to Plaintiffs Cody Kerns (“Kerns”), Kerns Capital

Management Inc.’s (“Kerns Capital”), and WFTMB Holdings, LLC’s (“WFTMB?”) (collectively,

“the Kerns Plaintiffs”) Motion to Compel Better Discovery Responses and to Overrule Defendants’

Objections (D.E. No. 185) (the “Motion to Compel”), and in support hereof, state as follows:

INTRODUCTION AND REQUEST FOR RELIEF

The First Jurisdictional Request for Production seeks documents that bear little probative

value, if any, to refuting FX’s sworn evidence in support of its Motion to Dismiss, on the one hand,

while on the other hand, seeks to have FX turnover sensitive customer information in violation of

these non-parties’ rights to privacy. Moreover, to refute the Court’s exercise of personal jurisdiction

over FX, FX stated in its Declaration attached to its Motion to Dismiss that clients had to certify

that they were not U.S. residents. Accordingly, to the extent a client did submit a Florida

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2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 service@b2b.legal
Defendant FxWinning, Ltd.’s Response in Opposition to Plaintiffs’ Motion to Compel
Case No.: 2023-020202-CA-01
Page 2 of I

identification card, a U.S. passport, or a limited power of attorney listing a Florida address to one

of FX’s platforms, the fact remains that the clients had to certify they were not U.S. residents to

begin with. Accordingly, privacy issues aside, were Plaintiffs to obtain these documents, Plaintiffs

would still fail to refute the jurisdictional facts attested to by FX in refuting the Court’s exercise

of personal jurisdiction over it. This is especially true in light of Plaintiffs’ representation to the

Court that “Plaintiffs have elicited more than sufficient facts through the jurisdictional depositions

of Merino and Brito and through their own discovery to meet their burden of establishing personal

jurisdiction by a preponderance of the evidence.” Accordingly, the Court should deny the Motion

to Compel and sustain FX’s objections to the First Jurisdictional Request for Production.

RELEVANT PROCEDURAL BACKGROUND

1 On October 31, 2023, Plaintiffs filed their Amended Complaint and Demand for

Jury Trial (D.E. 96) (the “Amended Complaint”) against a number of non-residents of Florida,

including FX, an entity organized under the laws of Hong Kong.

2 The Amended Complaint attempts to allege the Court’s exercise of personal

jurisdiction over FX under Sections 48.192(1)-(2), Florida Statutes.

3 On November 20, 2023, FX filed its Motions to Quash Service of Process, to

Dismiss Amended Complaint for Lack of Personal Jurisdiction, or alternatively, for Failure to State

a Claim (the “Motion to Dismiss”). D.E. 106.

4 FX attached to the Motion to Dismiss the Declaration of Defendant Rafael Brito

Cutie (““Mr. Brito”), FX’s CEO (the “Brito Declaration”). See D.E. 106, Ex. A.

5 Therein, Brito stated that: (1) FX is a Hong Kong limited company with its

registered office located in Hong Kong; (2) that FX does not operate out of or within the physical,

geographical, political or legal boundaries or area of the State of Florida or any other state or

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2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 * service@b2b.legal
Defendant FxWinning, Ltd.’s Response in Opposition to Plaintiffs’ Motion to Compel
Case No.: 2023-020202-CA-01
Page 3 of I

territory within the United States; (3) that FX’s terms and conditions preclude clients from the

United States from engaging with FX’s services; (4) that FX does not approach clients residing in

the United States; (5) that FX’s terms and conditions require clients to ensure they are able to

accept the services in the county in which they reside; (6) that FX’s terms and conditions require

prospective clients to certify that his or her residence is not within the United States; (7) that FX

does not accept clients from anywhere within the United States; (8) that FX has never owned,

maintained, utilized or held title to real property or offices in Florida, nor held any mortgages in

the State of Florida; (9) that FX has no assets in the State of Florida; (10) that FX does not operate

out of the State of Florida; (11) that FX has never established an office or used a workspace in the

State of Florida; (12), FX never had employees operating out of the State of Florida; (13) that FX

never committed a tort in Florida; (14) that FX does not direct any advertisement, solicitations, or

marketing of its services to Florida; (15) that FX does not have agents in the State of Florida; and

(16) that FX does not have any subsidiary or parent company located in the State of Florida (the

“Jurisdictional Facts”). See D.E. 106, Ex. A at {J 4-22.

6. The Jurisdictional Facts refuted the Amended Complaint’s jurisdictional allegations

as to FX, shifting the burden to Plaintiffs “to refute the defendant’s evidence through its own

affidavit or other sworn proof.” See Instrumentacion, Ltda. v. Phillips Electronics North America

Corp., 951 So. 2d 1001, 1002 (Fla. 3d DCA 2007).
7
On January 10, 2024, Plaintiffs took the deposition of Mr. Brito for personal

jurisdictional purposes.

8 Plaintiffs’ depositions were noticed thereafter for jurisdictional purposes. See D.E.

Nos. 153-156. However, Plaintiffs sought to preclude the taking of their depositions and filed a

Motion for Protective Order on January 31, 2024. See D.E. 159. Therein, Plaintiffs argued to the

Court that there was no reason for Plaintiffs’ depositions because Plaintiffs did not intend to submit

their own counter-affidavits to support their theory of personal jurisdiction over Defendant, that

there is no requirement for the Court to hold an evidentiary hearing on Defendants’ Motions to

Dismiss for lack of personal jurisdiction, and that Plaintiffs were “prepared to proceed without

submitting their own affidavits. Plaintiffs have elicited more than sufficient facts through the

jurisdictional depositions of Merino and Brito and through their own discovery to meet their

burden of establishing personal jurisdiction by a preponderance of the evidence.” Jd. at 2, 5. (italics

omitted).

9 Despite Plaintiffs’ representation to the Court that Plaintiffs were ready, willing and

able to proceed with “more than sufficient facts through the jurisdictional depositions of Merino

and Brito[,]” Plaintiffs served FX with their First Jurisdictional Request for Production to FX (the

“Request for Production”), which are attached hereto as Exhibit A.

10. The Request for Production seeks three (3) categories of documents: (1) United

States Passports; (2) Florida identification cards; and (3) limited powers of attorney that list a

Florida address, that were submitted to three of FX’s platforms: (a) legal.fxwinning.pro; (b)

FXWinning.net; and (c) FXWinning.pro.

11. During Mr. Brito’s deposition, Mr. Brito testified that FX has two platforms:

fxwinning.net and fxwinning.pro. See Brito Dep., selected pages of which are attached hereto as

Exhibit B, at 133:1-3. FX’s customers would submit their registration documents to either

platform, however, the documents submitted to either platform would then be stored and

maintained by third-party companies. /d. at 133: 4-13. Documents submitted to fxwinning.net

would be sent and maintained by “B2Broker” and documents submitted to fxwinning.pro would

be submitted and maintained by Skale, an Israeli company. /d. at 133:8-13.

12. With respect to the documents submitted to fxwinning.pro, which in turn would be

sent to and maintained by Skale, Mr. Brito testified that FX no longer had access to these

documents. /d. at 134:1-3. Mr. Brito testified that the account was cancelled and that he no longer

has access to these documents. /d. at 134:14-25.

13. Athird location that clients submitted documents to was to “legal.fxwinning.pro[.]”

See id. at 70: 15-19. Mr. Brito testified that these documents are easily accessible “[f]or the broker.”

Id. at 72:23-25.

14. On February 20, 2024, FX served Plaintiffs with its Responses and Objections to

the Request for Production, a copy of which is attached hereto as Exhibit C (the “Responses and

Objections”).

15. The Responses and Objections objected to four of the Request for Production’s

“Instructions” and also objected to each of the nine (9) requests on grounds of, inter alia, trade

secret, privacy, overbreadth, undue burden, and relevancy.

16. On March 6, 2024, counsel for Plaintiffs sent a meet and conferral discovery letter

(the “Conferral Letter”) to counsel for FX, requesting FX to advise by March 8, 2024, when

responsive documents will be produced. The Conferral Letter is attached hereto as Exhibit D.

17. On March 7, 2024, counsel for FX emailed counsel for Plaintiffs requesting an

extension of the March 8 deadline to March 15 “to properly evaluate the points raised in the

[Conferral Letter] and if necessary, to compile responsive documents.” Counsel for Plaintiffs never

responded to this email requesting an extension.

18. Instead, on March 14, 2024, Plaintiffs filed the instant Motion to Compel.

19. On March 15, 2024, FX served Plaintiffs with documents responsive to the Request

for Production.

20. On March 18, 2024, the undersigned served counsel for Plaintiffs with a letter in

response to the Conferral Letter (the “Response Letter”), which is attached hereto as Exhibit E.

21. The Response Letter withdrew FX’s objections sounding in trade secret as to each

of the individual Requests for Production in a good faith effort to confer on the points made in the

Conferral Letter.

MEMORANDUM OF LAW

THE REQUEST FOR PRODUCTION SEEKS IRRELEVANT DOCUMENTS
THAT ARE UNDULY BURDENSOME TO LOCATE BECAUSE PLAINTIFFS
REPRESENTED TO THE COURT THAT THEY WILL NOT BE ATTACHING
COUNTER-AFFIDAVITS TO THEIR OPPOSITION TO THE MOTION TO
DISMISS.

Under Florida Rule of Civil Procedure 1.280(b)(1), “[p]arties may obtain discovery

regarding any matter, not privileged, that is relevant to the subject matter of the pending action. . .

.” However, the scope of discovery is narrowed where, like here, a nonresident defendant contests

the Court’s exercise of personal jurisdiction over it. Under Venetian Salami Co. v. Parthenais, “a

defendant wishing to contest the allegations of the complaint concerning jurisdiction or to rase a

contention of minimum contacts must file affidavits in support of his position. The burden is then

placed upon the plaintiffto prove by affidavit the basis upon which jurisdiction may be obtained.”

554 So. 2d 499, 502-03, (Fla. 1989). The purpose of allowing a plaintiff jurisdictional discovery

under these circumstances is “in order to gather facts and file an opposing affidavit. Once

discovery on the jurisdictional issue is concluded, the procedure outlined in Venetian Salami

should be followed by the trial court. Gleneagle Ship Mgmt., Co. v. Leondakos, 602 So. 2d 1282,

1284 (Fla. 1992); see also Este v. Rodin, 259 So. 3d 183, 199 (Fla. 3d DCA 2018) (“Because

Appellants failed to rebut Appellees’ affidavits with Estes’s counter-affidavit, the trial court did

not abuse its discretion by denying limited jurisdictional discovery.”).

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2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 + service@b2b.legal
Defendant FxWinning, Ltd.’s Response in Opposition to Plaintiffs’ Motion to Compel
Case No.: 2023-020202-CA-01
Page 7 of I

In the instant case, the U.S. passports, Florida identification cards, and limited powers of

attorney submitted by FX’s clients to FX’s three platforms do not bear on whether FX committed

one of the enumerated acts in Section 48.193(1) to confer specific jurisdiction, nor would they

establish that FX presently “is engaged in substantial and not isolated activity within this state” to

confer general jurisdiction under Section 48.193(2). Assuming, without conceding, that clients

submitted U.S. passports and Florida identification cards, such documents do not establish a

particular client’s residence, inasmuch as a U.S. passport merely identifies an individual’s place of

birth and citizenship. To the extent a client submitted a Florida identification card to an FX

platform, such a document would fail to refute the Jurisdictional Fact alleged in Brito’s Declaration

that FX’s terms and conditions “require a certification by each prospective client confirming that

his or her residence is not within the United States.” See D.E. 105, Ex. A at § 6. That is, a client’s

submission of a Florida identification is irrelevant, inasmuch as a client who submitted a Florida

identification card must have otherwise certified to FX that the client did not reside within the

United States, including Florida. The same holds true for the limited powers of attorney. To the

extent Plaintiffs wish to argue the contrary, FX produced the U.S. passports belonging to Plaintiffs

Kerns and non-party Christopher McGinnis (“McGinnis”)—the assignor to Plaintiff WFTMB—

that Kerns and McGinnis submitted to FX.

Given the limited relevancy, if any, to these documents, they are likewise unduly

burdensome to identify and locate; thousands of documents were submitted to FX’s three platforms

(a) legal.fxwinning.pro; (b) FXWinning.net; and (c) FX Winning.
pro. This is especially true in light

of the fact that FX does not have possession, custody or control over documents that clients

submitted to FXWinning.pro. With respect to the remaining two platforms, FX will be forced to

expend considerable time, costs, and resources in having to sift through thousands of documents

in an attempt to locate U.S. Passports, Florida identification cards, and powers of attorney that

specifically list a Florida address, despite the minimal relevancy such documents have in refuting

the Jurisdictional Fact that clients had to certify that they were not residents of the United States.

Accordingly, the Court should sustain FX’s relevancy and burden objections. Such documents, if

they exist, would not provide a basis for Plaintiffs “to gather facts and file an opposing affidavit.”

Gleneagle Ship Mgmt., Co., 602 So. 2d at 1284.

Il. THE COURT SHOULD SUSTAIN FX’S PRIVACY OBJECTIONS.

The Motion to Compel’s analysis as to FX’s privacy objections concerning having to

produce non-parties’ private information including customers’ citizenships, addresses, and indeed,

names is misplaced. Pursuant to Article 1, Section 23 of the Florida Constitution, “[e]very natural

person has the right to be let alone and free from governmental intrusion into the person’s private

life except as otherwise provided herein.” That is, “[t]he privacy right of non parties arises from

Article 1, section 23 of the Florida Constitution.” Rosen v. McCobb, 192 So. 3d 576, 578 (Fla. 4th

DCA 2016). “Where ‘a discovery order potentially requires the disclosure of personal information

subject to privacy restrictions on dissemination, including names and addresses of non-parties

to a lawsuit,’ irreparable harm exists.” /d. (quoting Sovereign Healthcare of Port St. Lucie, LLC

v. Fernandes, 132 So. 3d 855, 857 (Fla. 4th DCA 2013) (emphasis added). In ruling on FX’s

privacy objection, the Court must:

Balance the competing interests that be served by granting discovery
or by denying it. Thus, the discovery rules provide a framework for
judicial analysis of challenges to discovery on the basis that the
discovery will result in undue invasion of privacy. This framework
allows for broad discovery in order to advance the state’s important
interest in the fair and efficient resolution of disputes while at the
same time providing protective measures to minimize the impact of
discovery on competing privacy interests.

Berkeley y. Eisen, 699 So. 2d 789, 791-92 (Fla. 4th DCA 1997).

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2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 * service@b2b.legal
Defendant FxWinning, Ltd.’s Response in Opposition to Plaintiffs’ Motion to Compel
Case No.: 2023-020202-CA-01
Page 9 of Il

In the instant case, Plaintiffs’ interest in the requested documents do not outweigh the

privacy rights of non-parties to this case, given the limited probative value of the documents

requested in the Request for Production as discussed in Section I, above. Indeed, given the limited

probative value of the requested documents, the Request for Production appears to “be little more

than a fishing expedition.” /d. at 793. On the other hand, non-parties to the case are at risk of

having their sensitive personal information disclosed and made public record. Accordingly, the

Court should sustain FX’s privilege objections.

Til. THE COURT SHOULD SUSTAIN FX’S OBJECTIONS TO THE REQUEST FOR
PRODUCTION’S INSTRUCTIONS.

Plaintiffs’ argument that FX’s objections to the Request for Production’s Instructions

constitute impermissible “blanket objections” is misplaced. A blanket objection, would for

instance, occur where a party objects to all the individual requests on unfounded grounds of

relevancy, or overbreadth. That is not what FX did. Rather, the General Objections objected

specifically to the Instructions contained in the Request for Production and are applicable to each

individual request that uses the objected-to instruction.

Additionally, with respect to FX’s objection to Instruction No. 4, the only General

Objection actually argued in the Motion to Compel, the Request for Production attempted to dictate

the manner in which FX could lodge an objection sounding in privilege, which FX objected to. As

explained in the Responses and Objections, “[t]he assertion of any privilege will be made in

accordance with Florida Rule of Civil Procedure 1.280 and applicable law.” Accordingly, the Court

should sustain FX’s General Objections.

WHEREFORE, Defendant Fx Winning, Ltd., respectfully requests that the Court enter an

Order denying Plaintiffs’ Motion to Compel, sustaining FX’s objections to the Request for

Production, and for such other and further relief that the Court deems proper and just.

Respectfully submitted,

BARAKAT + BOSSA
Attorneys for Defendants for the limited
purpose of challenging the efficacy of
service, jurisdiction, and venue
2701 Ponce de Leon Blvd., Suite 202
Coral Gables, Florida 33134
Tel (305)444-3114

By: _/S/MATTHEW AKIBA
MATTHEW AKIBA
FLORIDA BAR NUMBER 1031198
makiba@b2b.legal
cguzman@b2b.legal
service@b2b.legal
BRIAN BARAKAT
FLORIDA BAR NUMBER 457220
barakat@b2b.legal
JOCELYNE MACELLONI
Florida Bar No. 92092
jmacelloni@b2b.legal

[THIS SPACE IS INTENTIONALLY
LEFT BLANK]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing was filed and served upon all counsel of record

via the Court’s e-Filing Portal, and served upon counsel of record for Cody Kerns, Kerns Capital

Management, WFTMB Holdings LLC, David M Levine, Esq., at dlevine@sfl-law.com,

service@sfl-law.com, Fausto Sanchez, Esq., at fsanchez@sfl-law.com, Lauren M. Allen., at

lallen@sfl-law.com, Robert Kemper, Esq., at rkemper@sfl-law.com, Spencer Thompson, Esq., at

sthompson@sfl-law.com, and served upon counsel of record for Renan Da Rocha Gomes Bastos

and BBRC Real Estate LLC, Justin B. Kaplan, Esq., at justin.kaplan@nelsonmullins.com,

marisa.armas@nelsonmullins.com, Ryan K. Todd, Esq., at ryan.todd@nelsonmullins.com,

herold.labissiere@nelsonmullins.com; and served upon counsel of record for Julian Kuschner and

Jonathan Lopez, Zachary Brian Dickens, Esq., at zachary.dickens@whitecase.com.

MiamiLitigationFileRoom@whitecase.com, khoward@whitecase.com, Jaime A. Bianchi, Esq., at

jbianchi@whitecase.com, Robert DeNault, Esq., at robert.denault@whitecase.com; and Sadena

Blatt Miropol, Esq., at sblattmiropol(@whitecase.com, in accordance with Fla. R. Gen. Prac. &

Jud. Admin. 2.516, on this this 25" day of March 2024.

By: _/S/ MATTHEW AKIBA
MATTHEW AKIBA

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EXHIBIT A
IN THE CIRCUIT COURT OF THE 11™
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, individually,
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’ FIRST JURISDICTIONAL REQUEST FOR PRODUCTION
TO DEFENDANT FXWINNING, LTD.

Plaintiffs, Cody Kerns, Kerns Capital Management, LLC, and WFTMB Holdings, LLC

(collectively, “Plaintiffs”), pursuant to Florida Rule of Civil Procedure 1.350, hereby serve their

First Jurisdictional Request for Production on Defendant FXWinning, Ltd., and request that

Defendant FX Winning, Ltd. respond within thirty (30) days of service.

[Signature Block and Certificate of Service to Follow]
Dated: January 19, 2024 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.
Fla. Bar No.: 86229
Email: fsanchez@sfl-law.com
Robert Kemper, Esq.
Fla. Bar No.: 1038549
Email: rkemper@sfl-law.com
Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document was served

via email on the persons listed below:

BARAKAT + BOSSA, PLLC NELSON MULLINS RILEY &
Attorneys for Defendants David Merino, SCARBOROUGH, LLP
Rafael Brito Cutie, and FXWinning, Ltd. 2. 8. Biscayne Blvd., 21st Floor
271 Ponce de Leon Blvd., Suite 202 Miami, Florida 33131
Coral Gables, Florida 33134 (305) 373-9436
Tel (305) 444-3114
Fax (305) 444-3115

BRIAN BARAKAT Justin Kaplan
FLORIDA BAR NUMBER 457220 Justin. Kaplan@nelsonmullins.com
barakat@b2b.legal Ryan Todd
JOCELYNE A. MACELLONI Ryan.Todd@nelsonmullins.com
Florida Bar No. 92092 Elaine Kussurelis
jmacelloni@b2b.legal Elain.Kussurelis@nelsonmullins.com
service@b2b.legal Counsel for Defendants Renan da Rocha
Gomes Bastos and BBRC Real Estate, LLC

By: /s/ David M. Levine
David M. Levine, Esq.
DEFINITIONS

1 “You”, “Your”, and “FXWinning” refer to Defendant FX Winning, Ltd., as well
as any employees, agents, representatives, or other persons acting, or purporting to act, on its
behalf.

2 “Kerns” refers to Plaintiff Cody Kerns, as well as any employees, agents,
representatives, or other persons acting, or purporting to act, on his behalf.

3 “Kerns Capital” refers to Plaintiff Kerns Capital Management, Inc, as well as any
employees, agents, representatives, or other persons acting, or purporting to act, on its behalf.

4 “WETMB?” refers to Plaintiff WFTMB Holdings, LLC, as well as any employees,
agents, representatives, or other persons acting, or purporting to act, on its behalf.

5 “McGinnis” refers to Christopher McGinnis, as well as any employees, agents,
representatives, or other persons acting, or purporting to act, on his behalf.

6. “Lopez” refers to Defendant Jonathan Lopez, as well as any employees, agents,
representatives, or other persons acting, or purporting to act, on his behalf.
7
“Kuschner” refers to Defendant Julian Kuschner, as well as any employees, agents,
representatives, or other persons acting, or purporting to act, on his behalf.

8 “Merino” refers to Defendant David Merino, as well as any employees, agents,
representatives, or other persons acting, or purporting to act, on his behalf.

9 “Bastos” refers to Defendant Renan da Rocha Gomes Bastos as well as any
employees, agents, representative, or other persons acting, or purporting to act, on his behalf.

10. “Brito” refers to Defendant Rafael Brito Cutie, as well as well as any employees,
agents, representatives, or other persons acting, or purporting to act, on his behalf.

11. “BBRC” refers to Defendant BBRC Real Estate, LLC, as well as any employees,
agents, representatives, or other persons acting, or purporting to act, on its behalf.

12. “Trading Platform” refers to any and all foreign currency trading platforms owned
and/or operated by FxWinning, including but not limited to the online platform available at
fxwinning.net and/or fxwinning.pro.

13. “August 21 News Update” refers to the text posted on the FX Winning.pro website
on or about August 21, 2023, directing FXWinning customers to send documents to
legal.fxwinning.pro, and available at, https://www.fxwinning.pro/news?lang=en. A screenshot of
the August 21 News Update is attached hereto as Exhibit A.
14. “Relationship” refers to any form of connection between or among Persons,
including without limitation, a personal relationship, business relationship, implied relationship,
de facto relationship, and contractual relationship.

15. “Communication” and “communications” mean any and all inquiries,
discussions, conferences, conversations, negotiation, agreements, meetings, interviews, telephone
conversations, letters, correspondence, notes, telegrams, facsimiles, electronic mail (e-mail), text
messages (including i-messages and WhatsApp messages), memoranda, documents, writings, or
other forms of communications, including but not limited to both oral and written communications.

16. “Document” is defined to by synonymous in meaning and equal in scope to the
terms “documents” and “things” in Rule 1.350 of the Florida Rules of Civil Procedure. The term
“documents" is intended to be comprehensive and to include, without limitation, all original
writings of any nature whatsoever, copies and drafts which, by reason of notes, changes, initials,
or identification marks are not identical to the original and all non-identical original copies thereof.
In all cases where original or non-original copies are not available, “documents” also means
identical copies of original documents and copies. The term this includes, but is not limited to, any
kind of written or graphic matter, however, provided or reproduced, of any kind or description,
whether sent or received or neither, including but not limited to papers, book entries,
correspondence, telegrams, communications, transcripts, minutes, reports and recordings of
telephone or other conversations, or of interviews, or of conferences, or of committee meetings, or
of other meetings, affidavits, statements, summaries, opinions, reports, studies, analyses, formulae,
plans, specifications, evaluations, contracts, licenses, agreements, offers, ledgers, journals, books
of records of account, summaries of accounts, bills, service invoices, receipts, balance sheets,
income statements, questionnaires, answers to questionnaires, statistical records, desk calendars,
appointment books, diaries, lists, tabulations, charts, graphs, maps, surveys, sound recordings,
computer tapes, magnetic tapes, computer printouts, data processing input and output, emails, text
messages, WhatsApp messages, instant messages, microfilms, all other records kept by electronic,
photographic, or mechanical means, and things similar to any of the foregoing, however,
denominated, whether currently in existence or already destroyed. A draft or non-identical copy is
a separate document within the meaning of this term.

17. “Relates to,” “related to,” or “relating to” shall mean pertains to, refers to,
contains, concerns, describes, embodies, mentions, constitutes, supports, corroborates,
demonstrates, proves, evidences, shows, refutes, disputes, rebuts, controverts, or contradicts.

18. The use of the singular herein shall include the plural, and vice versa; the use ofthe
word “any” shall mean and encompass the word “all,” and vice versa; the use of the disjunctive
shall include the conjunctive, and vice versa; and unless the context indicates otherwise, the use
of any gender includes all other genders.

19. The term “agreements” includes, but is not limited to, contracts, agreements,
understandings, letters of understanding, letters of intent, negotiations, invoices, or other evidence
of any agreement regardless of whether there exists a binding commitment.

4
20. The connectives “and” and “or” shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of the discovery request all responses that
might otherwise be construed to be outside of its scope.

21. The terms “all” and “each” shall be construed either disjunctively or conjunctively
as necessary to bring within the scope of discovery all responses that might otherwise be construed
to be outside its scope.

INSTRUCTIONS

1 Each document requested shall be produced in its entirety. If any part of a
document is responsive to any of the following requests, the entire document should be produced.
If a document responsive to any request cannot be produced in full, it shall be produced to the
extent possible with an explanation stating why production of the remainder is not possible.

2 You are required to produce all documents that are in your possession, custody, or
control, including documents in the possession, custody, or control of your agents. In producing
these documents, you are to (a) organize and label them to correspond to the numbered paragraphs
in this Request for Production of Documents, or (b) as they are regularly maintained in the court
of business.

3 These requests are continuing in character so as to require you to supplement the
responses within a reasonable time if you obtain or become aware of any further information
responsive to these requests for documents.

4 With respect to any document being withheld from production on the basis of
attorney-client privilege, work product immunity, or otherwise, you must:

Identify the nature of the privilege which is being claimed and the rule of law under
which the privilege is being asserted; and

Provide the following information:

i The type of documents (e.g., letter, memorandum, etc.)
il The subject matter of the document;
iil The date of the document;
iv The present location and identity of the document’s custodian; and
Vv. The author, addressee, and all recipients of copies of the document.
5 With respect to the transfer or receipt of any document, items, tangible or intangible
goods, money, or anything else of value, all such references shall include indirect transfers.
6. “Relates to” or “relating to” means pertains to, refers to, contained, concerns,
describes, embodies, mentions, constitutes, supports, corroborates, demonstrates, proves,
evidences, shows, refutes, disputes, rebuts, controverts, or contradicts.

7
The singular includes the plural; and the plural includes the singular, except where
circumstances make it appropriate. The use of any tense of any verb includes all other tenses of
the verb so used, except where circumstances make it inappropriate.

8 Unless otherwise specified, the time period of this request is from January 1, 2021
through the present.
DOCUMENTS REQUESTED

1 All United States passports submitted to legal.fxwinning.pro after the publication
of the August 21 News Update.

2 All Florida identification cards submitted to legal.fxwinning.pro after the
publication of the August 21 News Update.

3 All limited powers of attorney submitted to legal.fxwinning.pro after the
publication of the August 21 News Update that list a Florida address.

4 All United States passports submitted to You through any document portal
available at FXWinning.net.

5 All Florida identification cards submitted to You through any document portal
available at FXWinning.net.

6 All limited powers of attorney submitted to You through any document portal
available at FXWinning.net that list a Florida address.

7 All United States passports submitted to You through any document portal
available at FXWinning.pro.

8 All Florida identification cards submitted to You through any document portal
available at FXWinning.pro.

9 All limited powers of attorney submitted to You through any document portal
available at FXWinning.pro that list a Florida address.
EXHIBIT A
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EXHIBIT B
IN THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT IN AND FOR
11TH
ORIGINAL
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO 2023-020202-CA-01
AND
COMPLEX BUSINESS DIVISION
Case No 2023-016392-CA-01

CODY KERNS, ET AL.,
Plaintiffs,

FXWINNING, LTD., ET AL.,
Defendants.

AND
10
CFT SOLUTIONS, LLC, ET AL.,
11 Plaintiffs,

12 v

13 FXWINNING LTD., ET AL.,
Defendants.
14
DEPONENT: RAFAEL BRITO CUTIE
15 DATE: JANUARY 10, 2024
REPORTER: MAYRA HERNANDEZ
16

400 North Ashley Drive, Suite 2600 100 East Pine Street, Suite 308 4651 Salisbury Road, 4* Floor
TAMPA, FL 33602 ORLANDO, FL 32801 JACKSONVILLE, FL 32256
CORPORATE
302435 Cutie Rafael 01-10-2024 Page 2

APPEARANCES

ON BEHALF OF THE PLAINTIFFS, CODY KERNS, ET AL.:
David Levine, Esquire
Sanchez Fischer Levine, LLP
1200 Brickell Avenue
Suite 750
Miami, Florida 33131
Telephone No. (305) 925-9947
E-mail: dlevine@sfl-law.com
E-mail: rkemper@sfl-law.com
(Appeared via videoconference)

ON BEHALF OF THE PLAINTIFFS, CFT SOLUTIONS, LLC, ET
AL.:
Ryan Todd, Esquire
Nelson Mullins Riley & Scarborough, LLP,
2 South Biscayne Boulevard
10 Suite 21
Miami, Florida 33131
11 Telephone No. (305) 373-9400
E-mail: ryan.todd@nelsonmullins.com
12 (Appeared via videoconference)

13 ON BEHALF OF THE PLAINTIFF, JAY KATARI:
Jo-Jean Panton Figueira, Esquire
14 Jo-Jean Panton Figueira, P.A.
2920 Northwest 29th Avenue
15 Boca Raton, Florida 33434
Telephone No. (561) 900-5260
16 E-mail: jpantonfigueira@gmail.com
(Appeared via videoconference)
17
ON BEHALF OF THE DEFENDANT, RAFAEL BRITO CUTIE:
18 Brian Barakat, Esquire
Barakat + Bossa
19 2701 Ponce de Leon Boulevard
Suite 202
20 Coral Gables, Florida 33134
Telephone No. (305) 444-3114
21 E-mail: barakat@b2b.legal
(Appeared via videoconference)
22
Also Present: Araisy Sanchez, Videographer; David
23 Merino, Defendant; Sergio Alvarez, Spanish Interpreter.

II
407.423.9900
MILESTONE
TOMORROW'S
REPORTING
TECHNOLOGY
COMPANY
TODAY

www.MILESTONEREPORTING.com
corporat ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
Toll Free 855-MYDEPOS
302435 Cutie Rafael 01-10-2024 Page 3

INDEX
Page
PROCEEDINGS
DIRECT EXAMINATION BY MR. LEVINE
EXAMINATION BY MR. TODD 92
EXAMINATION BY MS. FIGUEIRA 106
EXAMINATION BY MR. LEVINE 127
CROSS-EXAMINATION BY MR. BARAKAT 131
REDIRECT EXAMINATION BY MR. LEVINE 136
RECROSS-EXAMINATION BY MR. BARAKAT 142
RE-EXAMINATION BY MR. TODD 143

EXHIBITS
Exhibit Page
5 - Notice of Taking deposition 14
6 Declaration 16
Screenshot of FxWinning Website 33
Screenshot of FxWinni

Case Info

Judge

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

Case No.

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Document Filed Date

March 25, 2024

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

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Motion-Secondary: CODY KERNS ET AL VS FXWINNING, LTD. ET AL

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